IN THE HIGH COURT OF DELHI AT NEW DELHI
  
  
  
  LPA 2042/2005, LPA 2043/2005, LPA 2044/2005
   22.12.2005
  
  
  Date of Decision: December 22, 2005
  
  
  GOVT OF NATIONAL CAPITAL TERRITORY OF DELHI
  and OTHERS ....
  Appellants Through Ms. Avnish Ahlawat, Adv
  with Ms. Latika Chaudhary, Adv
  
  
  
versus
  
  
  ALL INDIA CONFEDERATION OF THE BLIND .... Respondent
  Through None.
  
  
  
  CORAM:
   HON'BLE THE CHIEF JUSTICE
   HON'BLE MR. JUSTICE MADAN B. LOKUR
  
  
  1. Whether Reporters of local papers may be
  allowed to see the judgment? Yes
  
  2. To be referred to the Reporter or not? Yes
  
  
  
  
  
  
  
  3. Whether the judgment should be reported
  in the Digest ? Yes
  
  MARKANDEYA KATJU, CJ
  1. This Letters Patent Appeal has been filed against the impugned judgment
  
  
  
  of learned Single Judge dated 3.8.2005.
  2. We have heard learned counsel for the parties and have perused the record.
  3. The facts in detail have been set out in the judgment of learned Single
  Judge and hence we are not repeating the same except where necessary.
  4. The writ petitioner, the All India Confederation of the Blind is a self
  help organisation of blind persons registered under the Societies Registration
  Act 1860 having its network of affiliates and branches spread all over India.
  It represents the interest of blind people across the country and caters to the
  special needs of education, training, employment, social rehabilitation and
  restoration of rights.
  5. Respondent No.2 in the writ petition is the Union Public Service
  Commission (the UPSC), which is a recruitment and selection agency and conducts
  examinations for recruitment to various departments of the Central Government.
  6. It is stated in para 3 of the writ petition that the UPSC has published an
  advertisement in the Employment News (24-30 July 2004) in which the following
  advertisement has appeared regarding 90 posts of Principal in Govt. Senior
  Secondary School under Directorate of Education, Govt of NCT of Delhi:-
  ?19. (Ref. No. F.1/254/2003-R-II) NINETY PRINCIPAL (65 MALE and 25
  FEMALE) IN THE GOVERNMENT SENIOR SECONDARY SCHOOLS UNDER THE DIRECTORATE OF
  EDUCATION, GOVERNMENT OF NCT OF DELHI. Of the 90 posts 9 posts (08 male and 01
  female) are reserved for SC candidates, 39 posts (27 Male and 12 Female) are
  reserved for OBC candidates and remaining 42 posts (30 Male and 12 Female) are
  unreserved. Out of total 90 posts, one post is to be filled up by persons
  Physically Handicapped (Orthopaedically) persons belonging to any
  category/community of candidates. QUALIFICATIONS: ESSENTIAL: A. EDUCATIONAL:
  (i) At least second class Master's degree from a recognised University or
  equivalent. (ii) Degree in Teaching/Education from a recognized University or
  equivalent. B. EXPERIENCE: Ten years experience of teaching in a High or
  Higher Secondary School or an Intermediate College. DESIRABLE: (i) Experience
  in administrative charge of a recognized High/Higher Secondary
  Schooll/Intermediate College. (ii) Doctorate Degree. (iii) Public School
  Experience. DUTIES: Administrative function and over all control on the Govt.
  Senior Secondary School of Govt of NCT of Delhi. HQ: Anywhere under the Govt
  of NCT of Delhi .
  
  NATURE OF POSTS: General Central Service: Posts are likely to continue and to
  be declared permanent in due course.
  
  PAY SCALE AND CLASSIFICATION: Rs.10000-325-15200 (T.E Rs.16650) Group 'A'
  Gazetted?.
  7. The grievance of the writ petitioner is that the above advertisement
  violates Section 33 of the Persons with Disabilities (Equal Opportunities,
  Protection of Rights and Full Participation) Act,1995 (in short ?the Act?)
  under which there has to be 3% reservation for handicapped persons out of which
  1% must be reserved for the visually handicapped candidates.
  8. It is alleged in para 5 of the writ petition that the post of Principal
  is in the list of Identified Jobs for Persons with Disability (Visually
  Handicapped) published by the Ministry of Social Justice and Empowerment,
  Government of India in the year 1999 in accordance with the requirements of the
  
  
  
  Act. A true copy of the list is Annexure-C to the writ petition.
  9. It is alleged in para 7 of the writ petition that the Union of India has not
  cleared the pending backlog as per the information received by the petitioner
  
  
  
  
  
  
  since February 1996 i.e. when the Act came into force and even the subsequent
  policies/directions on the subject issued by the Department of Personnel and
  Training, Ministry of Personnel and Training, Administrative Reforms and Public
  Grievances and Pension, Government of India have not been followed by the Union
  of India.
  10. It is alleged in para 8 of the writ petition that as per the standing
  instructions by respondent No.3 dated 17.9.1999 every recruiting government
  department needs to furnish a certificate while sending the requisitions to the
  Union Public Service Commission and Staff Service Commission for filling up of
  the posts to the effect that they have reserved the mandatory vacancies for
  disabled persons. It is alleged that the Union of India has not complied with
  the instructions of respondent No.3 or has given a wrong certificate that the
  reservations are implemented in true letter and spirit.
  11. The writ petitioner has prayed for a direction to respondent Nos. 1
  and 2 to immediately issue a corrigendum to the said advertisement
  incorporating the standing rules/instructions and requirements of the Act so as
  to make the above advertisement in accordance with the law. It is also prayed
  that the respondents be directed to fill back log vacancies of visually
  handicapped persons through a special recruitment drive within six months. It is
  also prayed that a direction be issued to the respondents to ensure that if a
  visually handicapped candidate whether from scheduled caste, scheduled tribe,
  other backward caste or general passes the exams/recruitment test on his own
  merit even if he is not treated as a handicapped person he must not be treated
  as a handicapped person and should be recommended on merits. In other words,
  if a visually handicapped candidate passes the examination/recruitment test with
  such high marks that he would qualify even in the general category, he must be
  deemed to be qualified in the general category and not in the reserved category
  for the visually handicapped. Hence he should not be appointed against one of
  the reserved posts for the visually handicapped, which should be given to some
  other visually handicapped applicant.
  12. A counter affidavit has been filed by the Government of National Capital
  Territory of Delhi and we have perused the same. It is admitted in para 4 of the
  counter affidavit that the Ministry of Social Justice vide its notification
  dated 31.5.2001 identified the posts of school Principal, Vice Principal and
  Head Master/Head Mistress also as the posts which can be filled up by physically
  handicapped persons.
  13. In paragraph 5 of the counter affidavit it is stated that on a
  representation made by one Shri V.P. Singhania and Dr. Naresh Kumar made before
  the Chief Commissioner for Persons with Disabilities, who vide order dated
  19.10.2004 came to the conclusion that the post of the Principal has been
  identified with effect from 31.5.2001 and as such with respect to the
  Principal's appointment for which the direct recruitment is sought to be made by
  the UPSC, the corrigendum is required to be issued.
  14. In paragraph 7 of the counter affidavit it is stated that after May,2001
  no vacancies of Principals have been filled up. These vacancies were first
  advertised for 90 posts on 24.7.2004 on the basis of the requisition sent by the
  department.
  15. In para 8 of the counter affidavit it is stated that as per the order of
  the Chief Commissioner for Persons with Disability, the respondents submitted a
  representation to the UPSC on 4.11.2004 to ensure 3% reservation to the persons
  with disability in the direct recruitment quota of Principals. The UPSC in
  
  
  
  response issued a corrigendum in its advertisement No.1 in the Employment News
  dated 8-14.1.2005 and extended the date of receipt of the applications from
  
  
  
  eligible persons with disability up to 27.1.2005 and 3.2.2005 for persons
  residing in remote areas.
  16. In para 9 of the counter affidavit it is stated that 3 posts are to be
  filled up by physically handicapped persons out of 90. In para 10 of the
  
  
  
  counter affidavit it is stated that there is no question of any backlog in this
  case for the reason that upto May/June,2001 the post was not an identified post.
  17. In the parawise reply in the counter affidavit it is stated in para 3
  that the department has decided that vacancy Nos. 1, 34 and 67 are to be filled
  up by physically handicapped persons and therefore, the UPSC was being
  requested to issued a corrigendum to this effect.
  18. In view of these averments in the counter affidavit, there can be no
  grievance of the petitioner now that three percent posts are now reserved for
  the physically handicapped persons.
  19. However, the allegation in para 12 of the writ petition deserves
  consideration. In that paragraph it is alleged that if a visually handicapped
  person is so bright that he passes the test on his own merit as a general
  category candidate, then he should not be treated as a physically handicapped
  person and his appointment should not be against the reserved quota. In other
  words, the reserved quota of three percent posts should be filled up excluding
  the physically handicapped candidate, who was so bright that he got selected
  being treated as in the general category.
  20. We are in agreement with this submission. It has been repeatedly held by
  the Supreme Court that if a scheduled caste candidate gets such high marks that
  he would even get selected if he is treated in the general category, then he
  will not be treated as having been selected on a reserved scheduled caste seat,
  and the reserved scheduled caste seats will be filled up excluding him, vide
  PGI Medical Education and Research v. K.L. Narasimham, (1997) 6 SCC 283.
  21. The aforesaid decision was no doubt given in the context of reservations
  for scheduled castes/ scheduled tribes/ other backward castes, but in our
  opinion, the same principle should also apply to the handicapped persons
  because Article 46 of the Constitution provides that the State shall promote the
  interests of the weaker sections. In our opinion, the expression ?weaker
  sections? in Article 46 includes physically handicapped persons, and is not
  limited to scheduled castes and scheduled tribes.
  22. The Act is a welfare legislation and hence, if two views are possible, an
  interpretation should be given which is in favour of the handicapped persons,
  vide G.P. Singh's 'Principles of Statutory Interpretation', Ninth Edition, 2004,
  p.736.
  23. Hence, we dispose of this writ petition with the direction that any
  physically handicapped candidate who has qualified in the selection, whose merit
  is so high that if he were a general category candidate he would still have been
  selected, then his appointment will not be made against the handicapped persons
  quota, but he will be treated in the general category, and the reserved seats of
  handicapped persons will be calculated excluding him, and will be filled up
  accordingly.
  24. In view of the above discussion, this LPA is disposed of.
  
  
  CHIEF JUSTICE
  
  December 22 ,2005 MADAN B. LOKUR, J
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