I I m rHE ]ncn count-or K/rnftrrfl[/l AT BAmLoRE (oRrGrNAL JURISDTCION) r ff. P No............t20o7 (GM- PIL) BETWEEN Akhila Karnataka Andha Shikshakarugala Kshemabhivriddhi Sangha Having its Regd. Office at: Sri Nilaya No. 3452/1 A, 3'd Main Road, Tilak Nagar, Mysore Represented by its Secretary Sri. Veera Kyathaiah N. AND a_ PETITIONER 1. Selection Authority and Deputy Director (Administration) Department of Public lnstructions State Government of Karnataka M.S. Building, Bangalore-560001 The Secretary, Department of Personnel and Administrative Reforms State Government of Karnataka No.32, Vidhana Soudha Bangalore 560 001 3. The State Government of Karnataka D.epartment of Women and Child Wetfare M.S. Building Bangalore-560001. ( Represented by its Principal secretary ... ... RESPONDENTS 2. L THE CONSTITUTION OF INDIA
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.t-sehcftut turtte posts luodd t*) made based on fie lefldts d[t'ls
7. The Petitioner submits that the required qualifications specified fot each d '
these posts as per the above Notification dated 30.07.2007 are as follows:
a. ln the case of Primary School Male Teacher/Female
Teacher (General) vacancies, the candidate Should have
passed his/her P.U.C. or T.C.H. or T.C.H' equivalent
examination.
ln the case of Primary School Male Teacher/Female
Teacher (Science) vacancies, the candidate should have
passed P.U.C. with Science and Mathematics as elective
subjects of practice and T.C.H. gr pass in equivalent
examinations.
ln the case of Primary School Male Teacher/Female
Teacher (English lanquage) vacancies, the oandidates'lr
should have passed P.U.C. with English as first or secdpd
language and have obtained 50% of the marks and passed
T.C.H. or any equivalent examinations, or should have
passed P.U.C. and T.C.H. in English medium.
ln the case of Primary School Male Teacher/Female
Teacher (Hindi lanquage) vacancies, the candidates
should have passed P.U.C., and T.C.H. or any equivalent
examinations, and should have passqd S.S.L.C. with Hindi
as first or second language or should have passed P.U'C.
and T.C.H. in Hindi medium.
Apart from these criteria for different subjects, .
the
candidates should also have passed SSLC/PUC/TCH with
the medium of instruction of the teaching posts to which
they chose to apply as their first or second language'
b.
c.
Y.J
d.
e.
Iti,
Iu.,?E,E
rIii
\€,
8' rhe impugned ild:fication provirles tor ilo/oof reservation of posts for persons
wih disabirity. However, in do-ing so, it specificaily bars visua[y handicappedpersons from applying for the notified posts. The impugned Notification listsout the various categories of persons for whom posts are reserved, including
etc' Paragraph 11 at page 12 however states that as per Government orderdated 29-11-2002, bearing No. DpAR s2 sRR gg, perso ns,who have rosttheir vision completety witt not be considered for the appointment ofTeachers'posfs' Based on this Government order purportedly made undersection 32 of the PWD Act, 1995, which is cited in the impugned Notification,
the Respondent No' t has prevented visually impaired candidates fromapplying for these posts.
.* *,
9' The impugned Notification therefore states that blind persons or persons whohave lost their vision completely would not be considered for the appointment
of Primary school reachers' posts.'lt is submitted that the Respondent No. 1
has' based on this Notification, refused all applications for thJlaovertis.qo
posts of primary school teachers frorp qualified blind persons and theirapplications have not been considered. The apprications of visuaily
challenged persons were thus not accepted till the last date for receiving
applications i'e' 07'09'2007. Even until this date the applications from visually
challenged have not been accepted, nor have they been given a hall ticket towrite the common Entrance Test. Due to this, the qualified visualty impaired
candidates will be deprived of a chance to write the entrance test and be
considered as candidates for the notified posts.
10'lt is submitted that while no applications were accepted from visually
challenged persons for these posts of primary schoor teachers, the impugned
Notification dated 30.07-2007 makes reservation. for other categories ofphysically disabled persons tor 5o/o of the posts. This amounts to a denial of
rc aborre eligibirity qualifications in the stateof Kamataka- These hained teachers have received a Diproma for primary
school reachers from the Training centre for Teachers of the Visually
, Handicapped (Mysore) under the Nationar rnstitute for the visuaflyHandicapped under the Ministry of sociar Justice & Empowerment,
Government of lndia. This Diploma is equivalent to the T.C.H. certificate. Thesyllabus for these courses is issued by the Rehabilitation council of lndia, astatutory body estabrished under the Ministry of sociar Justice andEmpowerment, Government of rndia, and contains modures designedspecifically for training visually handicapped persons to teach all children,whether they are visuatty handicapped or sighted; thus it is designed forintegrated and inclusive education.
12' lt is submitted that the impugned Notification is in violation of the provisions ofthe PWD Act' The PWD Act was dnacted with an objective to proiide equal
'\employment and education opportunities to all people with disabilities. sect[gn32 of the PWD Act specifically provides that the appropriate governments
shall identify posts in establishments, which can be reserved for persons with
disability. Further, section 33 of the pwD Act specificafly requires theRespondents No' 1 and 2 to reserve vacancies of not less than 3 percent forpersons or class of persons with disability. Section 33 reads as folows:"seciion 33: E"very appropriate Govemment shatt appoint in everyestablishment such percentage of vacancies nol /ess fhpn three per centfor persons or c/ass of persons with disabirity of which one.per cent each
shall be reserued for persons suffering from _
blindness or low vision;
heaing impairment,
locomotor disabitity or cerebrat patsy
in the posfs identified for each disability:
a.
b.
c.
;F' w fnattte ryrogiate gonemnrent may, having rward to ttrc typof work canied on in any dSartmentor esfablrsh ment, by notification
subTbcf to such conditions, if any, as may be specified in such
notification, exempt any establishment from the provisions of this
section."
13. Therefore, under Section 33 of the pWD Act, the Respondent No. 1 and 2
State Government cannot discriminate among the different categories of
disability and is under an obligation to implementing the provisions of the Act,
and make reservations for disabled people in all classes of posts in the public
sector according to their capability. The Respondent No.1 is therefore bound
to have made reservations for visually disabled persons for the posts of
primary school teachers in the subjects such as Engli-sh, Hindi and Kannada
Language and in the social sciences subjects, as such teaching can be
efficiently handled by them as they are qualified and well trained to dq so.
:
14.The impugned Notification is also in comptete violation of the'i*menOnpnt
made to Rule 9(1A) of the Karnataka Civil Services (General Recruitment)
Rules, 1977, by means of the Notification issued by the Personnel and
Administrative Reforms Secretariat, Government of Karnataka No. DpAR S0
sRR 2000 on 03.09.2005, which defines a 'person with disability, or a
'physically handilapped candidate'to mean a person suffering from not less
than forty percent (4[o/o) of any disability inctuOing blindness and low vision
among others. 'Blindness' is further defined in these Rules in terms of the
definition given under the PWD Act as including 'total absence of sight'. The
Rules state as follows:
"B.uLek Btindness refers to a condition where a personsuffers iro* uny-''
of the following conditions namely:-
1. total absence of sight; or:
2. visual acuity not exceeding 6/60 or 20/200 @netlen) in the better eye
uv
3- ffi*n d frE ffi of vrsbn sutrendfury m angb d Z0.t-
worse;"
Thus, as seen from these Rules, the Government of Karnataka itself has
recognized that the term 'blindness' includes cases of total absence of sight.
The purpoie of these Amended Rules, as seen from the Amendment to Rule
9(1A), is to provide for reservation of three percent (3%) of the vacancies for
physically handicapped persons in Group 'A' or 'B' and five, percent (5%) of
the vacancies in Group 'c' or 'D' posts. The impugned Notification, by
excluding visually impaired persons from the category of physically
handicapped candidates, is in contravention with these Rules.
(A copy of the Amended Karnataka Civil Services (General Recruitment)
Rules, 1977, amended by means of the Notification dated 3.9.2005 be.g1i,no
No. DPAR 50 sRR 2000 is annexed herein and marked as ANNEXURE - B)
15.The Petitioner submits that other state governments such as thd Andhra
- Fradesh State Government, havb identified that qualified blind peisons can
be employed to the post of Higher secondary and Middre school Langudge
teachers in the Group C category. ln the State of orissa, the orissa High
Court at Cuttack held in one of its decisions that blind candidates could be
considered for employment as pr:imary School teachers and as Swechhasevi
shiksha sahayaks (sss) or Assistant Primary School reachers in
government schools and directed the state government to consider the
applications of visually impaired candidates for the same. Therefore, the
impugned Notification dated 30.07.2007, which bars .trained and qualified
visually handicapped persons from even applying for the posts of primary
school teachers in subjects that they are able to teach amounts to
discrimination and a violation of Article 14 under the constitution.
16.|t is submifted that Section 32 of the PW? Act specifically provides that the
appropriate govemments shall identify posts in establishments, which can be
tt,7
\,
he list of posts idenffi at periodical intenrats not exeeding three ye-arc and
update the list taking into ionsideration the developments in technology.
Keeping this in mind, the Union of lndia through the Ministry of Social Justice
and Empowerment had as early as 31.05.2001 issued a Notification in
pursuancd of Section 32 of the PWD Act, identifying a list of posts suitable for
persons with disabilities. This exhaustive list was prepared by setting up an
Expert Committee with one Sub-Committee on each category of disability i.e.
Locomotor Disability or Cerebral Palsy, Hearing lmpairment and Blindness or
Low Vision. This Notification identifies the posts of Assistant Teacher, primary
Teacher, Middle School reacher, Language Teacher Middle school to be
suitable for persons who are Blind or with Low Vision.
(A copy of the Notification dated 31.05.2001 issued by the Ministry of Qocial
Justice and Empowerment is annexed herein and is rnarked as ANNEXURE
-c)
17.The above identification of postS of Primary School Teacher and; Assistant-\
Teacher for persons who are blind and with low vision clear"ly shows tfraFihe
Ministry had considered that visually impaired persons can perform the job of
a Primary School Teacher. Therefore there is no reason why the State
Government of Karnataka has not identified the posts of primary School
Teachers for visually impaired persons in the State.
18.The Petitioner submits that the Respondent State Government had come up
with another Notification bearing No. PRA.sHl.NE.21(MA)/2004-05 and dated
20.09.2005 calling for applications from candidates to fill' up 476T posts of
primary school teachers in government schools in the state ald such
Notification while it pr,ovided 5o/o reservation for persons with disability,
specifically excluded visually impaired.qualified persons from applying. The
Petitioner Assoeiation had filed a writ petitign, w.p. No. 16396 I 2006
challenging this Notification. The Hon'ble High Court of Karnataka was
sall ffier, oE thrtb H[gh corrt trd spedialy heu Htotal blindness or with row visltn muH be appointed in govemment
as primary school teachers and that the State Govemment could not justify
any exclusion of blind persons from the recruitment process. This Hon'ble
Court had'thus directed the State Government to conduct fresh recruitment
for such posts for persosn with disability and to specifically ihclude 1% out
such quota for visually impaired persosn as required under Section 33 of the
PWD Act. Despite this order dated 29.06.2007 passed by this Hon,ble court,
the Respondent No. t has again come up with this impugned Notification
which in terms contains the same exclusion of visually impaired candidates
which was set aside.
(A copy of the Order
Karnataka in W.P. No.
ANNEXURE- p)
dated 29.06.2007 by the
16396 I 2006 is annexed
Hon'ble High Court of
herein and marked as
19.Thereforg, in this present petition;,the Petitioner has sought for the;quashing.:I
of the impugned Notification dated go.ol.2ool and also iought -[9r
appropriate directions seeking reservation of posts of primary School
Teachers for visually impaired persons. tne petitioner has no other
alternative or equally efficacious remedy and is thus filing this petition in
public interest. The Petitioner has not filed any other similar petition before
o.r rn, other court.
GROUNDS:
20-THAT the action of the Respondents in denying trained and qualified visually
challenged. persons the opportunity to apply for the post of primary School
Teachers in the State is in clear violatipnof, the.Or:der.of this Hon'ble High
Court dated 29.06.2007 in W.P. No. 16396 t 2006 and is in violation of
Articles 14, 16 and 21of the Constitudon and a viotation of the provisions of
6": {-
21.THAT the impugned Notifiottn is in unplete violdion d 61e Jgdgrnent of
this Hon',ble court dated 29.06.2007 where it was held that visually impaired
persons can be appointed to the posts of primary school teachers' A
legislative or executive action cannot overrule a judicia! decision without
changing the basis of the judicial decision' ln P. sambamurthy v' state of
Andhra Pradesh,AlR 1987 SC 663, the Hon'ble supreme court of lndia has
held that it is through the power of judicial review conferred on an
independent institutional authority such as the High court that the rule of law