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Slp (civil) 12076 of 2008 akas case
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Transcript of Slp (civil) 12076 of 2008 akas case
I
h GF dI.,'.,'
lNTHEsuPREMEcoURToFlNDlAATNEWDELHl',
CIVIL APELLATE JURTSDICTION
SPECIAL LEAVE PETITION
.E 130 OF THE,OONSTITUTION OF
'*P'O)- '
WI-TH PRAYER FOR INTERITVI RELIEF!.
PO$ITION OF THE PARTIES
Before theHon'ble High Court
rw Tl'll$ couRT
BET$JEEN:
1. The Selection Authority and l
Deputy Director tAdministration)'
Department of Puhlic lnstructiotts
(Kolar DiEtrict), $tate of Kartrataka'
KARNATAKA STATE ..ResPondent No'1 .,PETITIONER'l
2. The secretary'
DePartmerrt of Personnel anC
Administrative Reiorrns"
State Governmdnt of Karnataka
No"32. Vidhana Soudha'
. KARNATAKq STATE. ..ResPondent Not2 ..PETITIONER'2
2. The Cornmissione.
for Disability, No.10,
Thami:uchetti Roacl.
Cock Torvn, B;rngalore,
KARNATAKA STATE. ,,RESPONCIENT-2 ..RESPONDENT-2
a
Tc,:
THE HON'BLE CHIEF JUSTICE OF INDIA
AI{D HIS OTI{ER COMPAN'CN JUSTICES
OF Tl{E SUPRETVIE CCURT OF INDIA NEW DELHI
THE $PECIAL I".EAVE PETITION CF THE PETITIONHRS ABOVE
NAlvlED MOST RESPECTFU{-LY $HQWTH:
i. The petitioners above narned respectfully subrnit this petition
seeking special leave to appeal uncler Article 136 of the Constitution
of lndia against the judgernent and final orcler dated 29.6.2007 passed
by the Divis.or'r Benclr of the Hon'bie Fligh Gourt of Karrrataka in
W.P.No.1 6396/2006. [{ence. t'ris Speciat Leave Petition,
a J1
QUESTIONS OF LAW:
The following questions of law of general public importance
anses tor consicieration of thrs Fion'ble Court:
2.1 Whether the High court of Karnataka is justified in directing the
petitioners to hold a special recruitineni exclusively for tlre Physically
lrandicapped persons more particularlv to fill up the post of 'lo/o to the ,
visually' impaired persons ?
2.2 Whether the Hrn'ble High Court rrf Karnataka is justified in
directing the petittoners herein to reserve 1% of the vacancy of
primary school i:tchers to tlte visuallV tmfralred or low vision
persons ?
?..g Whether the Hott'lrle Hiqh Couri of Karttatarka is justified in
holding that the Government has not issuecl any notificatlon under
Section 33 of the Persons with Disabiiity( Equal opportunities,
Protection of i'ight and full partictpatlon) Aci 1995 exemptlng the
pntltary school teat:hers flotn Section 33 of the Act. When the
Notification dated 29, 11.2002 is;sueci by ihe lstate
Government
produced as Annexure-G irr the tvrrt petition?
2.
a
4.
-n5
3. DECLARATION UNDER RULE - 1I2I
The petitioners state that no other petition seetring Special
Lea're to Appeal has tieen filed by tfrem against the itnpugned order of
rhe Hon'ble Hi11h Court ot Karnataka date J 29.6.2007 made in
W.P.No.1 6396i2005
DECLARATIof\r UNDER RULE 4(6)
The nnne.xures protlucerl alonq with the Special Leave Petition
are true coptes of the documents which forrned part of the records of
the case rn the Court below agatnst whose order the Special Leave to
5. ]he petitiot'lers seek leave to appeal on the following among
other grour,',is:-
GROUNDS
5.1 The order passed by the Hon'ble High Court of Karna{afa is
contraril to law. facts and probatrilities of the case.
5,2, That the order pass:d by the Hon'ble High Cotrrt of Karnataka
runs contrary trl the Recruitment Rules and the roster policy of the
State Governme.nt.
5.3. That the Hott'b!r High court of KarnataL" lsiied to consider
that, State Go,rernment by its Notification clated 22'2'1979 amentled
Rule I of General Recruittnent Rules oi 1977 and inserterl 1(A)
ranCicaPPed Person. Rule 9(1}(A)
1.A)Notwithstandingaltythingccntaineclintherulesof
recruittnentspeciallymatleinrespectofanyserviceor
post.ifinsuchrulesofrecruitmentdirectrecruitmentis
prescribecl as r>ne crf the rnethods of recruitment tfive
percentofthevacanciessetapartforthatrnethodin
eachotthecategoriesofgeneralmerit.Schedulecastes
artdSclteduledl-ribesanrlirreaclrofthecategories
alllongotherbaci<rvardclassasshailbereservedfor'
and) strall be iilted by direct recruitment frorn among
candidateswhoarephysicallyhandicapped:l
provided that this isub.rule shall not be applicabte to
ii) any post for appointment to which specified
plrysical standards are prescribed in the rules of
recruitrnenti
t-
7
iii) the post of Drivers of Motor Vehicles: and
iv) such otherr posts as the Government may be
order directlI
Provided furtner that this sub-rule shall also not be
applicable for direct recruitment of persons suffering
frorn a physical handicap of such nature and in i'espect
ofsuchpostsasmaybespectfiedbyNotification.lbV
Governmerrt From time to time.
The reading of the above Rules makes it clear that, 5% of the seats
have treen reserved for nhystcally handicapped persons as against
3% seats reserved under disabiltry Act. The finding cf the Hon'ble
High Court of Karnataka that the Governnlent has not taken any
steps to aBpoittt tlte rrlrvsicallv ilattclicar:pecl rrersons itt the State
Service is totallv tni;cotlct,ived.
5.4 Ti'rat the Hon'ble High Cottrt of Karnataka further failed to
consider that, government of KarnCtaka issued tiotification dated
20.9.2005 calling for application frorn the eligible candidates for.the:.
post of prirnary school teachers. As per the Recruitment Rules' 57o
seats has been reserved tor tr,e physically hanclicapped persons. ln
the said Notiticatlon. for the ai:pointment of the primary school
teachers- tre persons with fully blind are not eligible to be appointed
r$
as primary school teacher. tn the piirnary schooi level, teachers
have to take care of the small r:hildren and he has to build up the
personality ancj discipline in the sntail children. lf the teachers are
blind, it is not possiLrle to rnonitor and take care of tire small children.
ln vieu.' of that. urhiie issuing notification persons rvith blincl are not
made eligrbie to make apptication for recruitment of the primary
school teacher. This aspect of the rnatter is completely over lootcecl
b1r the Hon'ble High Couri of Karnataka.
o,--,5.5 The Hon'ble Hiqh Court cf Karnataka further failed to corisider
rhat, state Gover nment in rts Notification dated 29.1L2002 in
exercise of its pov/er conferred by sub section 1 of section 32 of
Persons with Disanilities {Euual Opportunitv, protectiorr of rioht and
full rrarticriralronl Act t995 idenril'ecl the t)ost specified in Colurnn
Nos. 3. 4, 5, 6. 7. I and g of ttre $chedule in respect of category of
disalrled specified in the headings of the respective colunrns in the
establishment specifled in column NO.z thereof. ln the said
Notification sorne of the pcsts have been reserved for the blind
person. ln so far as departrnent of Publrc lnstruction is concel'ned.
only ntusic teacher Grade-l and ll were reserverJ tc.r rhe blind persons.
Music teacher Grade.l and ll. packers. counters, Group.D sweeper,
cleaner and peon post has been r;iven to tne lorv vision persons.
9
l-4in"", the Government ha:l identlfied the post as required undcr
Sectiorr 32 of the Act. the Government need not issue Nctification
, exempting any department as required under Section 33 of the Act.
The State Governn-'ent has nol exemptefl any department as such
from purvier,v of the Act, Ttre some of the posts are ictentified which
can lre rrlserved ior the physically handicapped rlore particularly
visually impaired person$. State Gove:",tment fully cornplied with the
matldate of Disabilities Act. this aspect of the matter is completety
over lootced bv the tJivision Bench of the Hon'ble High Court ofi
5.E,,' That the Hon'ble High Court of Karnataks further failed to
constcier that. teachers ttt primarV school level educate the children'
moulrling tltelr character, buitcling up their perscnality ald make them
fit to become responsible ctti;en of the countr\. ln the home' small
chilciren grow ttnder the care of the tnother. in the schOol small
children are grow under the care of the teacher. if the teacher is blind
and not in a positiorr to monitor the activities of the children. it is
irnpossible to build up the goocl cltaracter arrd personality at the
initial stage. l'he small chiidren require disciplined edr.rcation at the
formative period. lf the blin6 persons are appointed to the primary
sctrool teachers. it rvill adverselr/ affect the education of the srnall
j/
IU
children and discipline amonq thsm. Tl,ris aspect of the matter was
also completely over iooked trv the Hon'ble High court of Karnataka.
5.7. Tnat the Hon'trle Higlr Court of Kanrataka further tailed to
consider that. this Flon'ble Court in a judgement reported in AIR 1989
SC 183 laid doln a law that:
"Though teaching is the last choice in the job market, the
rcle ot teachers is central to all processes of formal
education. Tl're reacher alorre cotrld bring out the skills arrd
intellectual calrauilities oi stutJents. t{e is l..te engine of the
,.clucational system, He is a principai instrument in
alvakening the chiid to cultural values, He neecjs to be
encJoweci anci energised wath l)eeded potential to deliver
enliqhtened servicr e.{llected r.rf hirn. His quality shculd be
such as would irrspire and motivate into action the benefiter,
He rnust keep himself abreast of ever cnanging conditions.
He is not to perform in .r wooden arrd unimaginative way. He
rnust eliminate fissiparous tendencles and aititudes and
infuse nobler and national ideas irt younger tninds. He
tnvolvetnent in national integration is tnore importartt,
-^- --Lt^ t,indeed i,ndisper;s able."
I
/It
ln view of the law laid down by tlris Hon'ble Court. the quali$ among
the teacher 1as to b: tnaintained, otherwise. whole education system
ulill be spoiled. ln view of that, State Govelnment after examining the
matter has taken decision to appoint the blind persons and low vieuat
persons only' to the post of the music teacher in the department of
Putrlic lnstructions and for the po$t of Music teacher, Packers.
Gounters. Group-D post. Srueepers. Cleaners and Peon. The order
passed by the Hon'ble Higll Court of Karnakka run contrary to the
law laid down by this Hon'ble Gourt referred to above.
5.8.- fhat the Hon'hle High Court of Karnateka further failed to
I*uiO*, that. the writ petition filed by the first respondent is barred
by resjudicata. Thd petitioner . Sangha earlier approached the
Hon'hle High Court of Karnataka in W.P.No.3$17t2OA5 seeking
direction to the State Government and its authorities to appoint blind
persons to the post of prilnary school teachers to the extent of 1%'
l'his Hon'ble Cotrrt by its oi'der datecl I5.11.2005 clearly held that:
,, No provision has beerr rnade for reservation of blinci
persons, we are satisfied that since the notification does
not intend to fill up any of the iclentified trosts, it was not
pecessarV for the State $overntnent to titare atly provision
- ti
for the reservation of blind persons. ,As ana when the
identifiecj and notified ;. osts are fillecl up, the res-ervation
, provision snall be given effect to,"
ln view of the order ptassecl fiV the l{ort'ble t{igh Court of Karnataka,
the first respon,Cent cannot approach the Hon'ble High Court of
Karnataka tn tnothe; wrlt petition with a verv same prayer to appoint
thern to the post of primary schooi teacher. The writ petition filecl by
the first responclent is barred try resJudtcata. '[he i']on'ble High Court
of Karnataka ought not to lra,re etrtertain the rvrit petition filed by the
first respondent, The eltire apprcach made by the Hon'b'le High Court
of Karnataka is contrary to law.
5.9. The reasonings of tl're l{on'hle High Court of Karnataka that
-the Notification daterj 20.9.2005 rssued bi' tlte $tate Government
calling for applicaticn for ihe Bost of pritnary sctlool teacher
exclusion of the blirtq persone is contrar'r' tc 9i1) of General
Recruitment Rutes ie totaliy misconceiveO. The Hon'ble t'liqh Couri of
Karnataka rrrisunclerstood and mtsreacl Rule g{1t of the General
Recruitment Rules, lt rs nurnbly sutrtnitteci that, State Goverriment
has not excludeq the i:li^d persolls lletttg appoitttecl as teacher' As
per the Notification dated ?9.11.2002, the slate Government has
reservedthepostcftttl,tsicteachertotheblindFr€leoIr'Hence'itis
1tr
li
clear that the Goverrrment has not excludect the blind teacher being
appointed as a primarv r:lrool teachers, This aspect of the matter is
cornpletely over iooked bv the Horr,ble Hiqh Court of Karnataka.
5.,f0 That the Hon'ble '{igh Court of Karnatalta furtlrer failed to,t'
"J-- -
consider that. Governnrent has issued Notification on 29.11.?002
identifiecl the post to flre physically handicapped persons including
the blind person. The saicl norifrcation has beerr reviewecj and issued
Governrnent Order x 12.10.2004 to make F.ecruitment as per the
Notification dated 29.11.2002. Hence. it is clear that Governlnent has
reviewed the list of post identifiecl from tinre to tinre as contemplated
under sectiorr 32 of Disabilities Act. The entire approach made by the
llcn'ble Hiqh Court of Karnataka is contrarv to law,
5.11, The Hon'ble High Cottrt of Karnataka further failecl to consider
that, state Goverrrment in its Notification datecl 13.9.2006 amended
Rule 9{A) of Recruitment Rules of Karnataka Civil Service Rules 1g77
ancl providecl 3Ya of re;ervarion {Horizontal Reservatlon) in
recruitnrent for Group.A and Group-B posts for the persons with
disabilities. ln the said Notifiearioi. post of the teirchers has been
reserved for blind or low vision persons, ln so far as Hearimasters of
the High school which is Group.g post, the lecturer in pre-University
-1 ,
il
education. Lecturer in degree colleges. lecturer in polytechnlc
engineeringcl:lleqe.lhiscleartvshowsthet.intentionofthe
Governrnent is that. tre person with visually irnpaired should not be
appointed as a teacher iti prllnary school i.e,, Group''c po*t'
However'pi.ovisionhasneetrntailetoappotntasleciurerinPre'
university college. degree co leqe and engineerlllg college whiclt is
Group.A post. This aspect of the lnafter is contpletely over looked by
the Hon'ble High Coitrt of Karttataka'
That the Division Bench of the Hon'ble High Oourt of, 5.12,
5.13.
Karnataka has not considered an1,of the contentions urged attd the
Notification produced in the statement of objectiorrs' only on the
sl/mpathetic consideration passeci the order which runs contrary to
the Recruitlnent Rules and law laid down by this Hon'ble court'
Ttrat the Hon'ble High oouri of Karitat;tka.frlrther failed
to consider that. the Judqlnent retied upoll bv the first respondent is
not aprrlical:ia Ior the cese of tlre res{ronclent' Further' the Official
fulemorandurn dared 29.12.2005 issuecj by the lri"rister ot Personnel'
Public Grrevances ancl Educitiorr derrarttnent cf t'ersonai training wilt
not give anv assistance ro the respondent. I his aspect of the matter
wascompletelvoverlool<ecbvtheHon,bleHrghCourtofKarnataka;
ri
6. GROUNDS FOR INTER.IM RELIEF
It ts submltteci that. on the l.rasts c,f the crrdcr pasced by the
Hon,irle High Court. the rcspondent ttisisting upon'the petitioneri
iterein to hold the s,recial recruitment to fill ttp 1% of the post cf
visuallv irnpaired and low vision p'ersons and threatening to initiate
contempt of court proceedings against petitiolrer for non
inrrrtementatiop oi the saici order, lf the order passed by the Hon'ble
High Court of Karnataka is enforceci, the small children etudying in
the prtmarV school wrll be put to trarclship and effect the educational
atmosphere of the state. Henc:. rt is Just and necessary to grant
interiin orcler as prayeC for bv the petitioners'
NflAIN PRAYER
ln view of tlre facts and clrcuntstanc:es of the case' it is most
resrrectIull]ipraVedthat.thisHon,bleCourtInaVbepleasedtoi
a.GrantSpecialLeavetoAppealtothepetitioneragainst
tlrefinalJudgmentandorderdated:2906.2007tnadein
W.P.No.16396/?006 passeC bv the Hon'ble High Court of
Karnataka
7.
1tAnd
b. Pass suctt other order or Orders lrs this t-lon'ble CoUrt
rnav deetns fit antJ ptCIper in the circumstances of the case.
INTERIl1/I REI.IEF
It is therefc re. most respectfully prayetl that this Hon'ble Gourt
a) Grant an interim exparte order cf stay. staying the
operatton of ftre impugned order dated:29.06,20u7 made in
W.P.lrjc.1g39612006 Oasseri by the Divisio,t Bench of the
Hon'ble Hiqh Court of l/rslrlataka:
iir
L
a
C
And
c) pass such oth:r orrler or
may deemed fit and Prop,er
ca5e.
orders as this Flon'ble Court
in the circumstances of the
FILED BY:
(ANITHA SHENOY)ADVOCATE FOR PETITIONERS
STATE OF KARNATAKA.
fr {B.MANOHAR}ADDL.GOW.ADVOCATE
RAWN BY: -roh z, x{b'