S. MANOHARAN Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) A writ of mandamus has been sought for by Mr.S.Manoharan, a physically challenged person, who acquired his Master's Degree in Science with a pass in the National Eligibility Test conducted by the Agricultural Scientists Recruitment Board, New Delhi, on the ground that when he applied for the post of Assistant Professor (Agronomy) among the 334 vacancies to be filled up by the respondents 2 and 3, even after receipt of the interview card dated 2.10.2009 to attend the interview in the office of the second respondent -Tamil Nadu Agricultural University and after attending the said interview for the post of Assistant Professor in Agronomy on the said date, by showing all the original certificates including the physical disability certificate issued by the Medical Board, he did not receive any intimation from the respondents 2 and 3, namely, the Registrar, Tamil Nadu Agricultural University, Coimbatore and the Vice Chancellor, Tamil Nadu Agricultural University, Coimbatore.

(2.) IT is the contention of the learned counsel for the petitioner that when the petitioner gave his representation to the second respondent stating that he is a physically disabled person (orthopaedically handicapped) with 60 percent disability and he has not been selected under the physically handicapped category, there was no response. Therefore, he further pleaded that the respondents 2 and 3 did not follow the rule of reservation enumerated under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, "the Act"). Alleging violation of the provisions of the Constitution of India, it was further canvassed before this Court that the action of the respondents 2 and 3 resulted in violation of the fundamental rights guaranteed under Articles 14 to 16 of the Constitution of India. Stating further, it was contended that Section 33 of the Act makes it mandatory that the appropriate Government shall appoint in every establishment such percentage of vacancies not less than three percent for persons or class of persons with disability, of which one percent each shall be reserved for persons suffering from (a) blindness or low vision; (b) hearing impairment; (c) locomotor disabiity or cerebral palsy in the posts identified for each disability. Continuing his submission, it was also pleaded that the petitioner is having all the qualifications as mentioned in the advertisement. Therefore, when he appeared for interview before the Selection Committee on 19.10.2009 for the post of Assistant Professor in Agronomy, he was under the impression that the respondents 2 and 3 would be considering his candidature and the reservation policy for the persons with disabilities. But, unfortunately, even when the Government issued G.O.Ms.No.7, Higher Education (F2) Department dated 14.1.2008 implementing the order of this Court passed in W.P.No.27231 of 2007 directing that all the Government Arts and Science Colleges should follow the reservation of three percent for teaching posts for the persons with disability, of which one percent shall be reserved for persons suffering from blindness, another one percent for persons suffering from hearing impairment and yet another one percent for persons suffering from locomotor disability, the respondents 2 and 3, by not implementing the order passed by this Court and the G.O.Ms.No.7 dated 14.1.2008, have totally violated the statutes. Finally, it was contended that when applications were invited by the second respondent for filling up of the regular 334 vacancies of Assistant Professor in Agriculture, Horticulture, Agricultural Engineering, Home Science, Forestry and Allied Sciences in the Advertisement No.R.3/1/2008 dated 7.7.2008 and Advertisement No.R.3/1/08 dated 10.9.2008, more particularly, when this Court in the decision in Professor I.Elangovan v. Government of Tamil Nadu and others reported in2008 3 MLJ 481, while considering a similar issue that the reservation of posts for persons with disabilities, has held that the provisions of Section 33 read with Section 2(k) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 would prevail over the Tamil Nadu State and Subordinate Service Rules, as the State Government is duty bound to provide reservation of not less than three percent in every establishment or department for the persons with disabilities in accordance with Section 33 of the Act and further directed the Tamil Nadu Public Service Commission to fill up all the 187 vacancies exclusively by appointing the eligible disabled candidates in respect of Group 'C' and Group 'D' posts, making it clear that the competency of the legislature of any State and the exclusive power to make laws for the whole of the State or any part thereof with respect to matters enumerated in List I of the Seventh Schedule, referred to as the State list in the Constitution, itself is subject to the power of Parliament to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries. However, when Section 33 makes reservation for persons with disabilities, finally made it clear that there is no distinction between Group 'C' and 'D' or Group 'A' and 'B', for, G.O.Ms.No.7, Higher Education (FR2) Department dated 14.1.2008 makes it mandatory that the reservation of three percent to the Professor post for appointment of physically handicapped persons should have been implemented as directed by this Court in W.P.No.27231 of 2007 dated 19.11.2007. As the respondents 2 and 3 have miserably failed to follow G.O.Ms.No.7 dated 14.1.2008 that was issued in compliance of the order passed by this Court in W.P.No.27231 of 2007 dated 19.11.2007, a direction should be issued to the respondents to appoint the petitioner, as the principles of carry forward also would apply from 2009 batch. It was also brought to the notice of this Court that once again the respondents 2 and 3 have issued an advertisement calling for fresh eligible candidates for filling up the post of Assistant Professor and the interview is also scheduled to be held on 4.2.2014 and the petitioner is also invited to attend the interview, in view of the subsequent development, this Court, he pleaded, may issue a suitable direction to meet the ends of justice.

(3.) AGAIN assailing the submissions made by the learned counsel for the petitioner, the learned counsel for the respondents 2 and 3 stated that the petitioner failed to distinguish between the University and the Government and the entire writ petition is filed without knowing the vast difference between the Government and the University. Adding further he pleaded that since the University is not a limb of the Government, as the University is an autonomous body, the petitioner's case misquoting and misapplying the Government Order to his advantage, not backed by any legal or statutory provisions, cannot be accepted.