Justice Sunanda Bhandare Foundation Vs U.O.I.

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WP(C)NO.116/1998 with connected matters

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL/APPELLATE JURISDICTION

WRIT PETITION (CIVIL) NO. 116 OF 1998

JUSTICE SUNANDA BHANDARE FOUNDATION Petitioner(s)

VERSUS

U.O.I. & ANR Respondent(s)

WITH

WRIT PETITION (CIVIL) NO. 115 OF 1998

WRIT PETITION (CIVIL) NO. 430 OF 2000

CIVIL APPEAL NO. 6442 OF 1998

CIVIL APPEAL NO. 6443 OF 1998

J U D G M E N T

R.M. LODHA, J. :

Writ Petition (Civil) No. 116 of 1998

In this Writ Petition filed by the petitioner

– a charitable trust, the prayers made are (i) for

implementation of the provisions of the Persons with

Disabilities (Equal Opportunities, Protection of

Rights and Full Participation) Act, 1995 (for short,

'1995 Act'), (ii) direction for the reservation

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of 1% of the identified teaching posts in the

faculties and college of various Universities in

terms of Section 33 of the 1995 Act, and (iii) for

declaration that denial of appointment to the

visually disabled persons in the faculties and

college of various Universities in the identified

posts is violative of their fundamental rights

guaranteed under Articles 14 and 15 read with

Article 41 of the Constitution of India.

2. Initially, two respondents, namely, (one)

Union of India through its Secretary, Ministry of

Welfare and (two) University Grants Commission

(U.G.C.) through its Chairperson were impleaded as

party respondents.

3. On 07.10.1998, the Court ordered impleadment

of the States and so also the Union Territories and,

accordingly, respondent Nos. 3 to 34 were impleaded

as party respondents.

4. On 13.09.2001, the Court directed the Chief

Commissioner for Persons with Disabilities, Ministry

of Social Justice and Empowerment, Government of

India to be impleaded as party respondent and

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consequently it has been impleaded as respondent

No. 35.

5. Then on 18.02.2009, the Court directed

Commissioners for Persons with Disabilities of

various States and Union Territories to be impleaded

as party respondents and consequently respondent

Nos. 36 to 70 have been impleaded who are

Commissioners for Persons with Disabilities in

different States and Union Territories.

6. Certain interim orders have been passed by

this Court from time to time.

7. Insofar as U.G.C. (respondent No. 2) is

concerned, the Court was informed on 19.03.2002

through counter affidavit that U.G.C. has acted in

compliance of the 1995 Act. In paras 3, 6, 7 and 8 of

the counter affidavit filed on behalf of the Chief

Commissioner for Persons with Disabilities, it was

stated :

"3. It is humbly submitted that in pursuance of Section 32 of the Persons with Disabilities Act (Equal Opportunities Protection of Rights and Full participation) Act, 1995, the

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appropriate government (Government of India) has updated the list of identified posts. This list has been issued vide Extraordinary Gazette Notification No. 178 dated 30.6.2001. In this list, the posts of University/College/School Teacher for the blind and low-vision have been listed at Sl. No. 24-27 on page No. 592. 6. The Chief Commissioner for Person with Disabilities has taken cognizance of the arrangements provided by the University Grants Commission for persons with disabilities by way of extending 5% relaxation in cut off marks, appearing in the NET for Junior Research Fellowship and Lectuership. Thus, the arrangement extended by UGC is in consonance with the policy stand taken by Govt. of India in so far as relaxation in minimum standard is concerned. Relaxation in standards has been favoured only when the candidates belonging to reserved categories are not available on the basis of the general standard to fill all the vacancies reserved for them.

7. The relaxation extended to SC & ST candidates as per Maintenance of Standard 1998 of the Universities, provides for a 5% relaxation from 55 % to 50% in the marks obtained at Master's Degree. Since reservation for the disabled is called horizontal reservation which cuts across all vertical categories such as SC, ST, OBC & General. Therefore, all such blind/low-vision persons who belonged to SC, ST vertical category would automatically enjoy the benefit of 5 % relaxation at the minimum qualifying marks obtained at Master's Degree level. Thus, only the blind and low vision belonging to OBC & General

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categories are deprived of the relaxation of 5 % marks at masters' level.

8. The blind/low-vision and other visually disabled persons belonging to SC & ST category are in any case enjoying the benefit of 5% relaxation in marks obtained at the master's level for appearing in the NET examination conducted by the UGC. By extending the same relaxation to particularly blind/low-vision and in general all disabled at par with SC & ST disabled would bring parity amongst all persons with disabilities irrespective of their vertical categories."

8. Thus, insofar as U.G.C. is concerned, this

Court in the order 19.03.2002 observed that nothing

survives for consideration and the matter is disposed

of as against U.G.C.

9. On 19.07.2006, the Court directed the Union of

India and the State Governments to file their

responses in the form of affidavits within a period of

four weeks, failing which it was observed that the

Court may be compelled to direct personal appearance

of the Chief Secretaries of the concerned States

though the Court would like to avoid in making such a

direction. Some of the States have filed their

responses and some have not.

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10. Be that as it may, the beneficial provisions

of the 1995 Act cannot be allowed to remain only on

paper for years and thereby defeating the very purpose

of such law and legislative policy. The Union, States,

Union Territories and all those upon whom obligation

has been cast under the 1995 Act have to effectively

implement it. As a matter of fact, the role of the

governments in the matter such as this has to be

proactive. In the matters of providing relief to

those who are differently abled, the approach and

attitude of the executive must be liberal and relief

oriented and not obstructive or lethargic. A little

concern for this class who are differently abled can

do wonders in their life and help them stand on their

own and not remain on mercy of others. A welfare

State, that India is, must accord its best and special

attention to a section of our society which comprises

of differently abled citizens. This is true equality

and effective conferment of equal opportunity.

11. More than 18 years have passed since the 1995

Act came to be passed and yet we are confronted with

the problem of implementation of the 1995 Act in its

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letter and spirit by the Union, States, Union

Territories and other establishments to which it is

made applicable.

12. Ms. Sunita Sharma, learned counsel for the

Union of India, informs us that insofar as Union of

India is concerned, it has implemented the provisions

of the 1995 Act and the reservation of 1% of the

identified teaching posts in the faculties and college

of various Universities in terms of Section 33 of the

1995 Act has been done.

13. In our view, the 1995 Act has to be

implemented in the letter and spirit by the Central

Government, State Governments and Union Territories

without any delay, if not implemented so far.

14. We, accordingly, direct the Central

Government, State Governments and Union Territories to

implement the provisions of the 1995 Act immediately

and positively by the end of 2014.

15. The Secretary, Ministry of Welfare, Government

of India, the Chief Secretaries of the States, the

Administrators of Union Territories, the Chief

Commissioner of the Union of India and the

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Commissioners of the State Governments and Union

Territories shall ensure implementation of the 1995

Act in all respects including with regard to visually

disabled persons within the above time.

16. Writ Petition is disposed of in the above

terms.

Writ Petition (Civil) No. 115 of 1998, Writ Petition (Civil) No. 430 of 2000, Civil Appeal No. 6442 of 1998 and Civil Appeal No. 6443 of 1998

Writ Petitions and Appeals are disposed of in

terms of the judgment passed today in Writ Petition

(Civil) No. 116 of 1998.

2. No costs.

3. Interlocutory Applications for intervention

and impleadment filed in Civil Appeal No. 6442 of

1998, in view of the above, do not survive and they

stand disposed of as such.

..............................J. ( R.M. LODHA )

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..............................J. ( SUDHANSU JYOTI MUKHOPADHAYA )

NEW DELHI; ..............................J. MARCH 26, 2014 ( DIPAK MISRA )