{"id":237101,"date":"2007-08-30T00:00:00","date_gmt":"2007-08-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahesh-gupta-ors-vs-yashwant-kumar-ahirwar-ors-on-30-august-2007"},"modified":"2016-04-09T16:12:26","modified_gmt":"2016-04-09T10:42:26","slug":"mahesh-gupta-ors-vs-yashwant-kumar-ahirwar-ors-on-30-august-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahesh-gupta-ors-vs-yashwant-kumar-ahirwar-ors-on-30-august-2007","title":{"rendered":"Mahesh Gupta & Ors vs Yashwant Kumar Ahirwar & Ors on 30 August, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mahesh Gupta & Ors vs Yashwant Kumar Ahirwar & Ors on 30 August, 2007<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Harjit Singh Bedi<\/div>\n
           CASE NO.:\nAppeal (civil)  3984 of 2007\n\nPETITIONER:\nMahesh Gupta & Ors\n\nRESPONDENT:\nYashwant Kumar Ahirwar & Ors\n\nDATE OF JUDGMENT: 30\/08\/2007\n\nBENCH:\nS.B. Sinha & Harjit Singh Bedi\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
CIVIL APPEAL NO  3984 OF 2007
\n[Arising out of  SLP (Civil) No. 16291 of 2004]
\nWITH
\nCIVIL APPEAL NOs. 3985 and 3986 OF 2007
\n[Arising out of  SLP (Civil) Nos. 19391 and 20321 of 2004]<\/p>\n
S.B. SINHA, J :\n<\/p>\n
1. \tLeave granted.\n<\/p>\n
2.\tInterpretation of an advertisement in the light of a circular of the State
\nof Madhya Pradesh as regards recruitment of handicapped persons to some
\nposts is in question in these appeals which arise out of judgments and orders
\ndated 1.5.2003 and 23.08.2004 passed by the High Court of Madhya Pradesh
\nin Writ Petition No. 40 of 2000 and M.C.C. (Contempt) No. 222 of 2003.\n<\/p>\n
3. \tThe State took recourse to a special drive for filling up the vacant
\nposts in the reserved category candidates, viz., Scheduled Castes, Scheduled
\nTribes and Backward Classes.  In a circular letter issued on 29.03.1993, it
\nwas stated:\n<\/p>\n
“SUBJECT: SPECIAL DRIVE FOR FILLING UP
\nRESERVED POSTS FOR
\nHANDICAPPED PERSONS<\/p>\n
\tThe State Government has reserved 3% posts (1% for
\nblinds and 2% for other physically handicapped
\npersons) for disabled persons.  By the Notification of
\nthe State Government vide No. 50-2532-1(3)\/80 dated
\n12th of February, 1991, exemption for 10 years in the
\nprescribed age limit has been granted to the candidates
\nbelonging to blind, dumb, deaf and disabled persons
\neligible for services for the posts of the categories of 3rd
\nand 4th grades, to be filled in the services of the State
\nGovernment through Employment Exchanges (copy
\nenclosed).   In the orders of the Finance Department
\nNo. L-17-1-87-B-7-4 dated 4th of June, 1987 in
\nparagraph 2, exemption has also been granted from the
\nban imposed for appointment in the government
\nservices, prescribed only for handicapped persons
\nagainst the reserved posts.\n<\/p>\n
\tIt has been brought to the knowledge of the State
\nGovernment that this quota for the handicapped persons
\nis not being fulfilled due to absence of knowledge about
\nreservation and procedural complications.  Extending
\nthe full benefit against the reserved posts in the
\ngovernment services as per the prescribed quota for the
\nhandicapped persons, cannot be determined as a fair
\nsituation.”\n<\/p>\n
 \tIt was inter alia directed:\n<\/p>\n
“In this connection, it is worth mentioning that for the
\nsuccessful conduct of the aforesaid campaign and for
\nthe implementation of the said policy of the State
\nGovernment, call for the names from the Employment
\nExchanges, for the vacancies at District level, the
\nDistrict Collector, and for the vacancies at Divisional
\nlevel, the Divisional Commissioner, and for the
\nvacancies at Heads of the Department, the concerning
\nHeads of Department have been authorized.  These
\nauthorization shall be limited only up to the posts of 3rd
\nand 4th grades.  So far as the question about 2nd Grade is
\nconcerned, this authority shall vest with the State
\nGovernment, but the procedure regarding examination,
\ninterview etc., could be conducted at the level of the
\nHead of the Department.”\n<\/p>\n
4. \tPursuant to or in furtherance of the said circular letter, the
\nCommissioner, Chambal Division, Morena issued an advertisement, the
\nheading whereof is as under:\n<\/p>\n
“SPECIAL RECRUITMENT DRIVE FOR FILLING
\nUP THE VACANT RESERVED POSTS OF
\nSCHEDULED CASTE AND SCHEDULED TRIBE:”\n<\/p>\n
\t However, while providing for the details of the posts, it was
\ncategorically laid down:\n<\/p>\n
”\n<\/p>\n
Name of Post (s)
\nVacant Posts
\nSC  ST  Handi-\n<\/p>\n
            capped
\nMinimum
\nQualifications
\nPay-\n<\/p>\n
Scale\n<\/p>\n
1.  Higher Grade
\nTeachers =
\nEnglish  14 and
\nSanskrit – 8\n<\/p>\n
 –    20     02
\nGraduate in relevant
\nsubject passed in 2nd
\nDiv. & Trained
\n(B.Ed. B.T.C.)
\n1400-<\/p>\n
\n2640<\/span>\n2. Industries \nCraft Teacher \n -    17    02\nHr. Sec. Exam \n(Intermediate) & \nDiploma in \nconcerning craft by \nan Institute \nrecognized by the \nGovernment \n1400-\n2640<\/span>\n3. Assistant \nTeacher \n(Science)\n -    08    03\nHr. Sec. Exam \n(Intermediate) \nScience with the \nSubjects, Physics, \nChemistry, Biology\n1200-\n2040<\/span>\n4.  Artists cum-\n -     01     -\nGraduate Degree in \nArts from J.J. School \nof Arts and one year \nexperience in \ncommercial \nphotography\n1400-\n2340<\/span>\n5. Dietician\n01    -      -\nM.Sc. (Home \nScience) or B.Sc. \n(Home Science)  2nd \nDivision & \nessentiality of Food \ncraft subject \n1400-\n2340<\/span>\n6. II Gr. Clerk\n -    01    -\n1.  Hr. Secy. or High \nSchool passed\n2. Hindi Typing \npassed from M.P. \nBoard\n950-\n1530<\/span>\n7. Steno-Typist\n -    05    -\n1 & 2 ==ditto== \n3. Knowledge in \nHindi Stenography\n950-\n1530 + \n75<\/span>\n8. Stenographer\n -     05   -\n1 & 2 as above +\n3. Dictation in Hindi \nStenography with the \nspeed of 60 words per \nminute as prescribed \nby Govt. \n\n9.  Tracer \n -     01   -\n1. Hr. Secy.\/High \nSch. with I.T.I. \npassed \n2. Drawing Diploma \nor Civil Engineering \nDiploma \n950-\n1530<\/span>\n10.  Assistant \nCartographer\n\n-      02   -\nPassed Hr. Secy. \nExam. and Degree\/ \nDiploma in the Craft \nor Certificate of \nDraftman in Civil \nEngineer from I.T.I. \nor Surveyor Trade \nCertificate\nPay as \nprescrib\ned by \nGovt.\nTotal :\n01   60   07\n\n\n\t\t\t\t\t\t\t\t\t\t\"\n<\/pre>\n
5. \tWe are concerned with the posts of Assistant Teacher (Science).
\nAppellants herein belonged to the general category.  They, however, suffer
\nfrom disability.  They are handicapped persons.  Respondent No. 1
\nYashwant Kumar Ahirwar, a handicapped person but also belonging to the
\nreserved category candidate was not selected.  He approached the
\nAdministrative Tribunal.  The Administrative Tribunal by a judgment and
\norder dated 27.11.1999 opined that he had no right of appointment on the
\npost of Assistant Teacher (Science) having not been selected by the
\nSelection Committee stating:\n<\/p>\n
“4.  On perusal of the advertisement published in the
\nRojgar Nirman dt. 26th May, 1994 (Ann. P.8), it appears
\nthat the respondent had advertised 8 posts for the
\nreserved category for scheduled castes and 8 posts for
\nthe handicapped persons.  The respondents showed the
\nreserved category separately in the body of the
\nadvertisement, though the heading of such
\nadvertisement is misleading that applications are also
\ninvited from the candidates belonging to the category of
\nS.C. & S.T. but the body of the advertisement leaves no
\nroom for doubt that 8 posts were got reserved for the
\ncandidates belonging to the Scheduled Castes and 3
\nposts for handicapped persons without having any caste
\nwise reservation.  The respondent made it clear in their
\nreturn that there was also special drive to fill the
\nvacancies belonging to the handicapped persons
\npursuant to the circular issued by the State Government
\non 29th March, 1993 (Ann.J-1).   There was clear
\ndirection therein that such vacancies should be filled by
\nthe end of 30th June, 1993”\n<\/p>\n
6. \tOn a writ petition having been filed by him, the High Court, however,
\nby reason of the impugned judgment while setting aside the order of the
\nTribunal, directed:\n<\/p>\n
“Therefore, in the said facts of the case it will be
\nappropriate that the State Government should examine
\nminutely and decide whether the posts could be filled
\nfrom the general category when advertisement was for
\nreserved category mentioned in the advertisement.   The
\nState Government shall also examine whether these
\nposts are to be filled from the members of scheduled
\ntribes only or from the members of scheduled castes
\nonly or from the category of other backward castes or
\nthese posts were for all the categories mentioned above.
\nState Government should also consider whether the
\nreservation was in accordance with the reserved
\nproportion shown in the Annexure-R\/1 filed by the
\nState.  Annexure R\/1 is issued by the State Government
\non 29th March, 1993.  State shall also examine whether
\nat the relevant date any post of the handicapped
\ncandidate in general category was vacant.  If no post
\nwas vacant then no person from general category could
\nbe appointed against these posts.  State shall determine
\nthat the category advertised had been properly filled.
\nThe entire exercise be conducted within a period of
\nthree months from the date of communication of the
\norder…”\n<\/p>\n
7. \tThe stand of the State before the Tribunal as also the High Court had
\nbeen that the posts reserved for the handicapped persons were open to all.
\nEven after the direction of the High Court, the State was of the view:
\n“1 The filling of the three posts of Assistant Teachers
\n(Science) as mentioned in the Advertisement, could be
\ncarried out from the handicapped candidates of any
\ncategory.\n<\/p>\n
2 The Advertisement published by the Commissioner,
\nChambal Division, regarding special drive for recruitment
\nof Scheduled Caste\/Tribes and filling of the posts of
\nhandicapped persons, was issued in compliance of the
\ninstructions issued from time to time by the General
\nAdministration Department and the Circular vide No. F.9-
\n2\/93\/1\/Res.Cell, Bhopal Dated 29th of March, 1993, but in
\nthe language of the heading of the Advertisement, the
\nwords ” and handicapped” should have been used along
\nwith Scheduled Caste\/Tribes, which has not been done so.\n<\/p>\n
3 At that time in the quota for the handicapped persons, 3
\nposts of Assistant Teacher (Science) were vacant, for
\nfilling of the same, proposals were forwarded by the Joint
\nDirector, Education, Gwalior Division, vide its letter No.
\nEstt.3\/DRA\/Gwalior\/268 dated 1st of March, 1994, to the
\nCommissioner, Chambal Division.\n<\/p>\n
Resultantly, simply in the language of the heading of the
\nAdvertisement, because of not mentioning of the word
\n“Handicapped” at the relevant time, the selection
\ncommittee has fully complied with the
\ndirections\/instructions issued by the Government, and the
\nselection procedure is without any fault and guiltless.”\n<\/p>\n
8. \tA contempt petition was filed at a later stage.  In the contempt
\nproceedings, the State took a volte face.  It inter alia took the stand that the
\nadvertisement was not proper and directed:
\n“9.  Resultantly, the advertisement issued by the
\nCommissioner, Chambal Division and published on 26th of
\nMay, 1994 in Rojagar Samachar, was not proper
\nadvertisement relating to vacant posts for the category of
\nhandicapped persons.  Therefore, on the basis of this
\nadvertisement, selection made against the quota for
\nhandicapped persons, being not proper, is liable to be
\ncancelled.   Because the handicapped teachers are
\npresently in service selected on the basis of this selection,
\ntheir services will have to be terminated, and, therefore, the
\ncompetent officer shall issue a show-cause notice to them,
\nan opportunity for being heard, should be extended to
\nthem.”\n<\/p>\n
9. \tIn terms of the said decision, a show cause notice was issued upon the
\nappellants herein as to why their services shall not be terminated.   The
\nservices of the appellants were terminated.  Appellants filed a Special Leave
\nPetition against the original order dated 1.05.2003.  However, it is now
\naccepted that services of some of the appellants have been terminated.\n<\/p>\n
10. \tThe State in terms of Article 16 of the Constitution of India may make
\ntwo types of reservations  vertical and horizontal.  Article 16(4) provides
\nfor vertical reservation; whereas Clause (1) of Article 16 provides for
\nhorizontal reservation.\n<\/p>\n
11. \tThe State adopted a policy decision for filling up the reserved posts
\nfor handicapped persons.  A special drive was to be launched therefor.  The
\ncircular letter was issued only for the said purpose.  A bare perusal of the
\nsaid circular letter dated 29.03.1993 would clearly show that the State had
\nmade 3% reservation for blinds and 2% for other physically handicapped
\npersons.  Such a reservation falling within Clause (1) of Article 16 of the
\nConstitution has nothing to do with the object and purport sought to be
\nachieved by reason of Clause (4) thereof.\n<\/p>\n
12. \tDisability has drawn the attention of the worldwide community.  India
\nis a signatory to various International Treaties and Conventions.  The State,
\ntherefore, took a policy decision to have horizontal reservation with a view
\nto fulfil its constitutional object as also its commitment to the international
\ncommunity.  A disabled is a disabled.  The question of making any further
\nreservation on the basis of caste, creed or religion ordinarily may not arise.
\nThey constitute a special class.  The advertisement, however, failed to
\nmention in regard to the reservation for handicapped persons at the outset,
\nbut, as noticed hereinbefore, the vacant posts were required to be filled up
\nfor two categories of candidates; one for Scheduled Castes and Scheduled
\nTribe candidates and other for handicapped candidates.  Handicapped
\ncandidates have not been further classified as belonging to Scheduled
\nCastes, Scheduled Tribes and general category candidates.  It is a travesty of
\njustice that despite the State clarified its own position in its order dated
\n1.01.2004 and stated that the posts were vacant under the handicapped quota
\nbut it completely turned turtle and took a diagonally opposite stand when a
\ncontempt petition was filed.  In its reply in the said proceedings, reference
\nwas made to the aforementioned order dated 1.01.2004 but within a short
\ntime, viz., on 4.02.2004 it opined on a presumption that as the word
\n“handicapped” was not mentioned in the heading of advertisement they were
\nmeant only for Scheduled Caste and Scheduled Tribe candidates.  Rule of
\nExecutive Construction was given a complete go bye.  Reasonableness and
\nfairness which is the hallmark of Article 14 of the Constitution of India was
\ncompletely lost sight of.  The officers of the State behaved strangely.  It
\nprevaricated its stand only because a contempt proceeding was initiated.  If
\nthe State was eager to accommodate the writ petitioner  respondent, it could
\nhave done so.  It did not take any measure in that behalf.  It chose to
\nterminate the services of some of the employees who had already been
\nappointed.  Such a course could not have been taken either in law or in
\nequity.  The State is expected to have a constitutional vision.  It must give
\neffect to the constitutional mandate.  Any act done by it should be
\nconsidered to have been effected in the light of the provisions contained in
\nPart IV of the Constitution of India.  The State in terms of the provisions
\ncontained in Part IV should have given effect to the principles embodied in
\nArticle 39 of the Constitution of India.  Whereas a reasonable reservation
\nwithin the meaning of Article 16 of the Constitution of India should not
\nordinarily exist, 50%, as has been held by this Court in Indra Sawhney v.
\nUnion of India<\/a> [1992 Supp (3) SCC 212 : AIR 1993 SC 477], reservation for
\nwomen or handicapped persons would not come within the purview thereof.\n<\/p>\n
13. \tFurthermore, when the decision was taken, the Persons with
\nDisabilities (Equal Opportunities, Protection of Rights and Full
\nParticipation) Act, 1995 (for short “the 1995 Act”) had come into force.  In
\nterms of the 1995 Act, the States were obligated to make reservations for
\nhandicapped persons.  The State completely lost sight of its commitment
\nboth under its own policy decision as also the statutory provision.\n<\/p>\n
14. \tFor the reasons aforementioned, we not only set aside the judgment of
\nthe High Court but also direct that the persons whose services have been
\nterminated in terms of 4.02.2004 should be continued in service.  We
\nfurthermore direct that they should be paid back wages as also other service
\nbenefits.  Respondent No. 1 could have been considered both as handicapped
\npersons as also Scheduled Castes and Scheduled Tribes.  If all the vacancies
\nmeant for Scheduled Castes, Scheduled Tribe had not been filled up, the
\nState may consider appointing him.  If he has already been appointed, the
\nState may consider the desirability of creating a supernumerary post and
\ncontinue his service therein.\n<\/p>\n
15. \tThe appeals are allowed with costs.  Counsel’s fee assessed at Rs.
\n25,000\/- in each case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mahesh Gupta & Ors vs Yashwant Kumar Ahirwar & Ors on 30 August, 2007 Author: S.B. Sinha Bench: S.B. Sinha, Harjit Singh Bedi CASE NO.: Appeal (civil) 3984 of 2007 PETITIONER: Mahesh Gupta & Ors RESPONDENT: Yashwant Kumar Ahirwar & Ors DATE OF JUDGMENT: 30\/08\/2007 BENCH: S.B. Sinha & Harjit Singh […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-237101","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMahesh Gupta & Ors vs Yashwant Kumar Ahirwar & Ors on 30 August, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mahesh-gupta-ors-vs-yashwant-kumar-ahirwar-ors-on-30-august-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mahesh Gupta & Ors vs Yashwant Kumar Ahirwar & Ors on 30 August, 2007 - 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