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Kumari Rekha Tyagi vs Vice Chancellor, University Of … on 17 August, 2001

Delhi High Court
Kumari Rekha Tyagi vs Vice Chancellor, University Of … on 17 August, 2001
Equivalent citations: 93 (2001) DLT 813, 2001 (60) DRJ 406
Author: A Pasayat
Bench: A Pasayat, S Mahajan


ORDER

Arijit Pasayat, C.J.

1. Doubting correctness of view expressed by a learned Single Judge regarding scope and ambit of Section 39 of the Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short ‘Act’), reference has been made to a Division Bench by another learned Single Judge and that is how the matter is before us.

2. The basic issue involved is whether Section 39 deals with reservation of seats in educational institutions or is relatable to service. In Naveen Kumar A. vs. University of Delhi (CWP 4657/00) decided on 24th November 2000, it was held by learned Single Judge that, in terms of Section 39 of the Act, all Government educational institutions and other institutions receiving aid from the Government shall reserve not less than three per cent seats for persons with disabilities and it was obvious from that Section that educational institution in question is required to reserve not less than three per cent seats for physically handicapped persons. It was further held that a case for admission of the petitioner in that case was required to be considered by the University in that class of reservation category. When this judgment was pressed into service by learned counsel for the petitioner, when the present writ petition was being heard, a doubt was expressed about correctness thereof. Learned Single Judge hearing the matter felt that since Chapter 39 forms a part of Chapter VI, dealing with “Employment”, it cannot be relatable to admission to education institutions.

3. Learned counsel for the petitioner submitted that though Section 39 forms a part of Chapter VI dealing with “Employment”, it is totally unconnected with the concept of employment and really should form a part of Chapter V dealing with “Education”. Merely because it forms part of Chapter VI dealing with “Employment”, it cannot be said that legislative intent was to make it relatable to employment and not education. According to him various provisions in Chapter VI i.e. Sections 32 to 38 deal with employment and the modalities to be observed. Section 32 mandates reservation of posts for persons with disabilities and Section 39 indicates in clear language to make it relatable to reservation of seats for persons with disabilities. Learned counsel for the University of Delhi and All India Institute of Medical Sciences (in short ‘AIIMS’) submitted that the legislative intent is clearly apparent by making Section 39, a part of Chapter VI dealing with employment. Had the legislative intent been otherwise, there is no reason why it was not put in Chapter V with a definite and distinctive heading “Education”. It is to be noted that in the present writ petition, AIIMS is not a party but is respondent No. 1 in CWP 4363/01, which was heard Along with this writ petition. It was highlighted by them that the expression ‘seat’ is not defined in the Act but there are several provisions in other Chapter which deal with the expression “seat”.

4. In order to appreciate the rival submission, it would be appropriate to quote Section 39, which deals with the issue in question. Same reads as follows:

“Section 39:

All educational institutions to reserve seats for persons with disabilities –

All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seats for persons with disabilities.”

As the scheme of the Act would go to show, it is divided into 14 Chapters. We are primarily concerned with Chapters V and VI. While former chapter comprises Section 26 to 31, the later Chapter comprises Section 32 to Section 41. Section 32 deals with identification of posts which can be reserved for persons with disabilities; Section 33 deals with reservation of posts; Section 34 deals with Special Employment Exchange; Section 35 deals with power to inspect record or document in possession of any establishment; Section 36 provides that vacancies not filled up are to be carried forward; Section 37 obligates employers to maintain records; Section 38 deals with schemes for ensuring employment of persons with disabilities; Section 39 as noted above indicates that all educational institutions to reserve seats for persons with disabilities; Section 40 deals with vacancies to be served in poverty alleviation schemes; Section 41 deals with incentives to employers to ensure five per cent of the work force is composed of persons with disabilities.

5. Learned counsel for the petitioner submitted that merely because a Chapter has been given a heading that is not determinative of the legislative intent. It is now fairly well settled that headings or titles prefixed to Sections or group of Sections can be referred to in construing the act of the legislature. (See: Hammer Smith & City Ry. v. Brand (1869) LR 4 HLC 171; IIngils v. Robertson, (1898) AC 616, (HL); toronto Corporation v. toronto Ry., (1907) AC 315, (PC); Martins v. Fowler, (1926) Ac 746, (PC); Qualter Hall & Co. Ltd. v. Board of Trade, (1961) 3 ALL ER 389, PP. 392, 394 (CA); Bhinka v. Charan Singh, , Director of Public Prosecutions v. Schildkamp, (1969) 3 All ER 1640 (HL).”

It was observed by the Apex Court in CIT v. Ahmedbhai Umarbhai that the title of a Chapter cannot be legitimately used to restrict the plain terms of an enactment. In Frick India Ltd. v. Union of India it was observed that headings prefixed to Sections or entires cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision. Only in the case of ambiguity or doubt, the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision. The heading prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words as quoted from Maxwell on Statutes, 11th Edition, Page 48 in Bhinka’s case (supra). In that case the question before the Apex Court was whether a person having no title but retaining possession by virtue of an order passed under Section 145 Code of Criminal Procedure, 1898, could be ejected under the provisions of Section 180 of the Uttar Pradesh Tenancy Act, 1939. Said provision provided a remedy for ejectment of a person who was retaining possession of land “otherwise than in accordance with the provisions of the law for the time being in force”. The expression was construed to mean “possession with title”. Support for arriving at the conclusion was derived from heading of the Section which read “Ejectment of person occupying land without title”. In Beswick v. Beswick (1967) 2 All E.R. 1197, cross-heading was used to limit the natural meaning of the word “Property” in Section 56(1) of the Law of Property Act, 1925.

6. It is to be noted that except Section 39 all other provisions in Chapter VI refer to employment in one context or other. It is fairly accepted by learned counsel for the petitioner that all the provisions except Section 39 deal such matters. According to him this is a factor which tilts the balance in favor of the petitioner. We find no substance in the plea. It is to be noted that in the Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules 1996 (in short ‘Rules’), there is also a Chapter dealing with “Employment” i.e. Chapter V. The heading of the Chapter is “employment”. Section 73 of the Act empowers making or rules for carrying out the provisions of the Act. Section 73(2)(r) deals with the power of the Government to make rules in the matter of maintenance of record by an employer under sub-section (1) of Section 37. Though various modalities have been prescribed for the employer to give details of various aspects there is nothing indicated so far as Section 39 is concerned. Can it be said that the legislative intent was that there shall be no record maintained so far as the educational institutions are concerned. The obvious answer is no. It is to be noted that Section 2(i) defines “disability” and Section 2(t) defines “person with disability”. In terms of Section 2(i) “disability” means blindness; low vision; leprosy-cured; hearing impairment; locomotor disability; mental retardation; mental illness. Obviously no guide-line has been indicated as to a person with what type of disability can be admitted to a particular institution. This absence is of great significance. Section 32 deals with, as noted above, identification of posts which can be reserved for persons with disabilities. Section 33 deals with reservation of posts of particular per cent for class of persons with disability. However a proviso exists to the effect that having regard to the type of work carried on in any department or establishment, the appropriate Government may, by notification subject to such conditions, if any, as may be specified in the notification, exempt any establishment from the provisions of Section 33. An illustration was given by learned counsel for the respondents that a totally blind person can hardly be expected to get admitted to medical colleges and even if such admission is given, the inherent difficulty to be faced needs no elaboration. Therefore in the absence of any guide-line, the stand of the petitioner that reservation of seat was intended cannot be accepted.

7. Looking at from the above angles, the inevitable conclusion is that Section 39 has no application for reservation of seats. For that purpose at word “posts” has to be profitably used in place of “seats”. It falls in line with the legislative intent as amply reflected in Section 32 and Section 33. In other words, in Government educational institutions or aided institutions three per cent of the posts can be reserved for persons with disabilities. The procedural aspects for employment as applicable to other provisions in Chapter VI have perforce application to Section 39.

The reference is accordingly disposed of. Matter shall now be placed before the learned Single Judge for disposal.

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