..

,----/'IN THE HIGH COURT OF KARNATAKA AT BANGALORE

(oRtc rNAL JURtsDtcTtoN)

W.P. No. t2011BETWEEN:

1. The National Federation of the Blind,Having its RegistereO Office at:plot p. 21, Seitor 6,M.B. Road, py:hpSrihar,

New Dethi_1 10017And its Karnataki Branch'Office at;No. 36, 100 Feet Rint norl,Veerbhadranagar,BSK 3rd Stage,BangaloreRepresented by itsGeneral Secretary, Karnataka Branch, Mr. Nagaraj

2. pankaj KaushikS/o p.D. KaushikAged about 30 yearsJindalAluminium Ltd.Jindal Nagar, Tumkur Road,uangalore

AND

1' The Karnataka R_esidential Educationar rnstitutions society,!g t 79, Roopa Co-pi"*l'37o"Ftoor,Sheshadripuj?T, 1., M;in' Iioad,Bangalore _ 560020Represented by its Executive Director

2. The Secretary,Department of personnel and Administrative ReformsState Government of Karnatat<aNo.32, Vidhana SoudhaBangalore 560 001

3. The State Government of KarnatakaDepartment of Wom"n ,nO'df,itO Wufrr"M.S. BuildinoBangalore_s6ooot.Represented by its principal Secretary

4. The Commissioner for DisabilitiesNo.40, Thambuchetty noaO-""''Cox Town,Bangalore_560 0Cl;

... PETITIONERS i

t

RESPONDENTS

.-'g Fgli,Cners a.bo, e-namffi r,?ostr respcft "f-rt sLJ;? I a-c .: n:,*,s

1. This Petition is filed as a public interest l:3a: r- !_. :-,i == ::*r,-: :,- :,m,** :

all visually impaired persons in the staie oi Ka--a:ar. -.: :--l*:r4-.whr#rrr r

equal opportunityto seek employment undervancus cy:rts 3,ri*a;- *,I r-r .: -,

teaching staff under the Persons with Disabilities a*' .:n -r:,r,i :i*:* -r,r-,i

Protection of Rights & Full Participation) Act 1gg5 (herei*at=. =r***: -,: *;i t*ir

'PWD Act"). The 1tt Respondent Department issued a Not',:eqer ;fl.i,r l-;_2011 bearing No. KRErs/Administration(1)cR(1)109,20.F.* :G .*r -:,

applications from interested candidates for the posts sr 1e"eFr.,1 *:*: * :,-

teaching staflin Morarji Desai and Kittur Rani Chenamma Resi$e-:";a:,:i*,:: .

While the said Notification provides reservation for persons ,y"ilj t:;'a: ir,E-:

has excluded visually impaired persons from applying to the sa:: i,r,$Ti ***

said Notification dated 27-4-2011 neither identifies nor speciflca , -3i:-,i! I l

of posts for persons who are visually impaired as mandated the G:+,=r,,*r.?*

order No. DPAR 128 sRR 2006 dated 1- g-2009 issued by the Gc,.e--*-r ;'Karnataka' This amounts to discrimination since visually impaired pe=:-: :-:fully qualified and are able to carry out the job requirements of these c:s:s 3-:the Central Government and several other state governments have c.-:',=:

and reserved these posts for the visually impaired, Thus aggrieved :, :*:actions of the Respondents in not reserving posts for the visually impaired a-:

low vision candidates and arbitrarily excluding them from applying for the pos:s

of teaching and non teaching staff at Morarji Desai and Kittur Rani Chenamma

Residential schools, the Petitioners have filed this petition in public interest.

ARRAY OF PARTIES

-

No.1 is the National Federation of the Blind, New Delh;

apcliiical federation of visually impaired and lor,,r visic- ::.-; ,,r,il'r rh€ philosophy df "Let the Blind Lead tl.e Bt,rc

'€

.co'a---1 jr:*r,r r11q53' :S r.,a'icls ,\,'e'ai? c-:3-a:r-es 1: tne siate. Tne petitioner

Federation presently has around 900 members ail over the State. The petitioner

is represented by its General Secretary.

3. The Tnd Pefitioner is a person with disability, being completely blind and

therefore is a person with disability, having 100% disability. He has completed

his SSLC and PUC and is a B.A and a B. Ed degree holder. He has all the

qualifications prescribed under the impugned Notification dated 27-04-2011 for

the post of Social Science Teachers and has applied for the same.

(A copy of the 2nd Petitioner's Disability Certificate is annexed herein and is

-€ marked as ANNEXURE - A)

(A copy of his B.A. Degree Marks Card is annexed herein and is marked as

ANNEXURE - B)

(A copy of the 2nd Petitioner's B. Ed Certificate is annexed herein and is marked

as ANNEXURE- C)

4' The 1't Respondent is the Karnataka Residential Education lnstitutions Society.

This Society was established by the Karnataka Government under the

Karnataka Societies Registration Act 1960 by its order No. sakaE 532 S"E.W

96, dated 06-10-99. The Society was being registered on 22-11-1ggg and it

started its activities from 02-02-2000. The 1't Respondent Society established

the Morarji Desai and Kittur Rani Chennamma (for Girls) Residential Schools all

over Karnataka and has become the nodal agencies for these schools. These

residential schools were started by the State government under the Navodaya

Model / Morarji Desai Residential Schools for the students of Scheduled

Castes, Scheduled Tribes, Backward Classes and Minorities of the rural parts

of Karnataka.

^-: ?=s:cndent is a State Department which is in charge of the

//; \iI

7. The Respondent No.4 is the authoriiy ar:: -:3: :. -: i;-+ lr;,,;;,,,* *',,,' "'

under The Persons with Disabilities (Equal Cctan-rr=': ;-:flr=":l :" - ; 't'':,and Full Participation) Act 1995 (hereina*e.-P',',1 r-' *-;

-*;-i,.t r " r.i,:*' ,- ,-

has among other duties, the duty to safegla-::--= -;-:: : *ri,"*,-ii,,: ,, "'

disabilities and to co-ordinate with the State Gc,s':--i-- * *'j,**.y':;.n: ;' ,

laws, rules, bye-laws, regulations orders. guce -:s::: ::-+: r *B ;'

Government for the welfare and protectic- c' - -:-:s :' ::-:: -: , r'- : :,a: " **:

BRIEF FACTS

B. lt is submitted that the 1't Responden: S::::, ::-?:

27.4.2011 bearing No. KREIS/Administra: :

calling for applications from interested canclca:es'--': -

and non teaching staff at Morarji Desai and K:-' =:-

schools all over Karnataka. The various posts ':- ,',* :*

submit their applications were posts of: P--::3 s -:-:*.F;"i

Kannada, Language Teachers in English. Lar_0,=;= -:3,:*="":

Teachers, Mathematics Teachers, Soc a S: =- := * i -'- ,i

Teachers, Physical Education Teache's : - .- : - :r'

Teachers, Wardens, Staff Nurses and F's: I :':- a:i,"r:',,'-

Operator. Different qualifications for eac. ci:-:s. :*:.:*: * ! ,*

under the said Notification. ln total tne '" ;::::-:i*- l:: :'"

4071 persons in the teaching and -:^-:3=-- -; :::-: - *

submitting the application forms was 3'-a-2-. '

(A Copy r,r the Notification dated 27J-2-" =ez--" CR ' 10912010-11 PSC is herervith :r.,:-:.3:

-n

t

reservation in Group C and 'D' and 3% reservation in Group 'A' and 'B'.

Further. the said Notification also mentions the State Government Notification

No. DPAR 52 SRR'1999 dated2g-11-2002 wherein certain posts in Group'C'

and 'D' of the State Government Departments have been identified for persons

with disabilities. ln this regard, the impugned Notification dated 27-04-2011

states that reservation would be provided only in the posts identified under the

State Government Notification dated 29-11-2002. However, under the said

Notification dated 29-11-2002, none of the posts which are called for under the

impugned Notification dated 27-04-2011 are identified for the blind or persons

with low vision. Therefore the impugned Notification does not identify or reserve

any posts for the visually impaired and low vision persons under the list of posts

notified. The only post which makes a mention of visually impaired candidates

is the post for music teachers wherein it is noted that preference will be given to

visually impaired candidates if they possess the requisite qualifications. The

remaining posts under the said Notification do not contain any reservation for

blind and low vision persons.

(A copy of the State Government Notification No. DPAR 52 SRR 1999 dated

29-11-2002 is annexed herein and marked as ANNEXURE- E)

10.|t is submitted that there is no mention in the impugned Notification about the

specific number of posts reserved for visually impaired, nor does it mention the

specific number of posts reserved for the various disabilities within the category

of persons with disabilities. As per section I (1) (A) of the Karnataka Civil

Services General Recruitment Rules, 5% of posts in Group C and D category

shall be reserved for persons with disability. Further, as per Government Order

No. DPAR 128 SRR 2006, dated 1-8-2009, a division of reservation among the

5',1: r€ssrvation for persons with disabilities has been further sub-divided in the

'o 3,,, ''lg rnanner:

: I -: -3.,,\/isicn-2c/:

^ -Fa..^: <e I ..:: r:=-.:- :='--. _

posts for blind or perscns i',:^ 3i' ' s:- -:- -=s=

'C'and'D'for blind and persons ""';iil

3"' ' s:^

(A copy of the Amended Karnataka Ci.''i Se-' :as 3=-:-= - :

1977, amended by means of the Notification da:ec 3 ? 2. -: :,';- .

50 sRR 2000 is annexed herein and marked as ANNEXURE ' F

(A copy of the State Government Notification No. DPAR ,12: .=:

1-8-2009 is annexed herein and is marked as ANNEXURE - G

11.It is submitted that one of the posts for which application has cee- -: :: -

under the Notification dated 27-04-2011 is the post of First Divisict rs= = '-'

As regards this post, the Government of Karnataka has issued a Nc:':a :-

No. DPAR 56 SRR 201,1 dated 10-06-2011 wherein it is stated:-=:..*=

Notification dated 2g-11-2}O2would be modified to provide for the identii:a::-

of the post of First Division Assistant for blind and visually impaired. lnspiie c'

this, the impugned Notification dated 27-04-2011 which purports to follow the

identificatior made under the Notification dated 29-11-2002 has failed to

reserve the posts for blind and persons with low vision under this post'

(A copy of the Notification dated 10.06.2011, bearing No' DPAR 56 SRR 2011

is annexed herein and is marked as ANNEXURE - H)

12.lt is submitted that the post of a Principal which is also called for under the sa :

Notification dated 27-04-2011 belongs to 'Group B', category' The Ka'^2"=-=

Government Notification No. DPAR 21 SRR 2008 dated 03-08-2C:: ::- '='

:-: ::s: 3, Head Master of High school for persons with 3"' -':- - :

::.., :3::. ^as also not been considered under the imp-;.=: .,:.- ..- - -

::'::---:'---',.,^3'er-noreservationhasbeenmaciee'3--'::'"-::::"

: ; - '-z'=: :e-s:^s lir fact. as regards Gro-cs - =-: : -= '-:

--a-a,:-=:^= s3 I '.1::,ta: a^ e'a:ia'rry excludes blrnd ano ' S-3:r! lmpaired

tl-C:-' ir:S pCSt.

Notification No. DPAR 21 SRR 2008 dated

marked as ANNEXURE-J)

(A copy of the State Government

03-08-2008 is annexed herein and

13.|t is submitted that though the application form for the candidates in pursuance

of the said Notification has a column which requires them to state whether they

are physically handicapped; it further does not provide a column for the visually

impaired candidates. The application form mentions only four categories'

namely,leprosycured,hearingimpaired,locomotordisability,andmental

retardation/mental illness. The category of 'visually impaired' or 'blind / low

vision, is not provided for in the application form. Therefore, candidates who are

blind or have low vision cannot apply to the posts under the Notification under

the said categories. Further, the instructions for filling the application form

states that all questions should be answered and that any question left

unanswered will render the application incomplete and will not be considered'

Therefore'thisimpliesthatinordertosubmitacompleteform'candidateswho

are blind or have low vision can only apply through general merit and not under

any reserved categories.

(copies of the Application Form and instructions for candidates are herewith

produced and marked collectively as ANNEXURE -K)

14. lt is submitted that the 1't petitioner submitted a representation dated 23-5-2A11

to Respondent No. t highlighting the fact that there was no reservation for

visually impaired candidates in accordance with the Government Order dated

1,8.2009 of the Government of Karnataka prescribing lhal2% of the posts shall

be reserved foi' visually impaired persons, that the application form did not have

a :ategory for visually impaired persons, and that the Notification did not make

:^" -c1:rcr of provision of necessary facilities for visually impaired candidates

: -:- : > )---=-3erents for scribes extension of time for complet o" :' :-: ::::-

.4<\.

reprserrtatbn dated 23.5.2011 till date.

iA Copy of tfre Petitioneis representation dated 23.5.2011 is hererrith produce'd

and marked as ANNEXURE- L)

15. lt is submitted the 2nd Petitioner who is also a person with disability, being blind,

possesses all the qualification under the impugned notification for the post of a

social science teacher submitted his application leaving the question regarding

the type of disability unanswered. He has been given a hall ticket to write the

examination but when he made a request for a scribe to write his exam' his

request was denied by the Respondents. Subsequently, he submitted a

representation dated 31.5.2011 to the 1tt Respondent requesting the authc*-e}

to provide him with a scribe to write his examination. However, till date :*e 2-'

Petitioner has not received a response from the 1't Respondent'

(A copy of the 2nd Petitioner's application form is annexed herein and r.-,ate: as

ANNEXURE-M)

(A Copy of the Representation dated 31.5.2011 is herewith p'caL;-r ar:

marked as ANNEXURE - N)

16.lt is submitted thatthe impugned Notification is in violation:f recnn&lnstr,ls:fJthe PWD Act. The PWD Act was enacted with the cEr'erare lf rmoffirc

employment and education opportunities to all peopb ud} $sg}ffiites Smlrcr

32 of the PWD Act specifically provides that the approg6rm muermmrm mal

identify posts in establishments which can be reser'*eId fiT 3ertcrs mrut*

disability. Further section 33 of the PWD Aci specif;@l' =ffiire$ qwlmry-t

No. 1 to reserve vacancies of not less than 3% for pefEgrs 3r ffi g 6m6t"rs

r,":: disability. Section 33 reads as follows:

'-ie;r,,cfr 33: Every appropriate Govemment s*a![ amoffi r ecd'B:rr

?fi3f,rs:$.r::r€!rl such percentage of vacancies nof less ihar- firee jErrs-n #:n

Itr"grs :r 3€ss cf persons with disabitity of whidt orne Fe€8rs ary srd le

i.-l)

2 -.2:.g impairment

c Locomotor disability or cerebral palsy

in posfs identified for each disability;

Providedthattheappropriategovernmentmay,havingregardtothetypeof

work carried on in any depariment or estabrishment, by Notification subject to

suchconditions,ifany,asmaybespecifiedinsuchNofification,exemptany

establishment from the provisions of this secflon""

lT.TheRespondentscannotdiscriminateamongthedifferentcategoriesof

disabilityandtheyareunderanobtigationtoimptementtheprovisionsoftheAct

andtomakereservationfordisabledpeopleinallclassesofpostsinthepublic

sector in accordance with its obrigations under section 33 of the PwD Act'

Respondent No.1 is therefore bound to make reservation for visua*y impaired for

thepostofschoolteachersespeciallywhentheyfulfilalltherequirededucational

and age qualifications'

lB.TheimpugnedNotificationisalsoincompleteviotationofthedefinitionof

,personswithdisability,underthepwDAct.section2(t)defines'personswith

disabitity, to mean persons with not less than 40% disability' Further under the

PWDAct,thedefinitionof.disability,includespersonswithvisualimpairment.

HencetheimpugnedNotificationbyprovidingreservationforpersonswith

disability, but fa*ing to reserve posts for visually impaired persons is violating

the Provisions of the PWD Act' 1995'

,lgTheimpugnedNotificationisalsoinviolationoftheAmendmentmadetoRule

31A)oftheKarnatakaCivilservices(GeneralRecruitment)Rules,1977,by

*?2-s :".'e \clirication rssued by the Personnel and Administrative Reforms

PAR 50 SRR 20OO on 03'09'2005'

= -t._t: ,:t,=t,=,=-.:tt - . =u. :, .- ?:^i,S,oa,.;,,hancicacced candidate'

.-:s3 L-:-::: =.- es as se:- '-:- l-3 nr:=-:.-3:: :: =- ' - ': : ':

-^ j^- -eie^.ai C: Of three percenf r3',:t Of lne VaCanCreS io: p''r)'S Ca "

:a:dicapped 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'

20'The impugned Notification dated 27-04-2011 is in violation O. :.3 S:a:=

Government Notification dated o1-08-2009' The Government c'(a"="2.2 '

pursuance of section 33 issued Government order No' DPAR ',Z= := = - - :'

dated 1-8-2009 providing 5% reservation for persons with 3 s3: ' - "-i

wherein 2o/o is to be reserved for blind and persons ,,.;i:h :,.' .. S :.

aSpertheGovernmentorderdatedl-8-2009theRespo:33^:S2.:-:

reserye 5% of the posts for persons with disabitity o: '.'- :. .,

reservedforvisuallyimpairedpersons.However,thisis-...::.=

impugnedNotificationdated2T-04-2Ollwhichdoesn::i=s:-'::'

under the Notification for blind or low vision persons'

21.It is submitted that as stated above' the Notificaticr

provide for the reservation of the post of First D.'" s

persons with low visions even though the post :as

theStateGovernmentNotificationdated2g-11-2--2:"-'-'

tothelistofpostsbyaNotificationdatedl0-C..2:-,_-=.=.:

the impugned Notification dated 27-04-20"' : a -= ': ::

rcentrfication of posts under the Notification oa:e; z:-' ' '- - ' -

l,s:nAssistantwhichisnowidentifiedforD";';a*:-":

-::-::'a'.ed under the impugned Notification

:-aiSection32ofthePWDActspe"'=''r-l'13:,r .,r--r:!.. ^^^ta in oclan,iq^a'e^"S

",l-:-

I

resened for persons witr dis*ility and that the state goyemment shall review

the list of posts identified at periodical intervals not exceeding three years and

update the list taking into consideration the developments in technology.

Keeping this in mind, the Union of lndia through the Ministry of Social Justice

and Empowerment had issued a Notification dated 15.03.2007 in pursuance 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. for the

Orthopedically Handicapped, Hearing Handicapped and Visually Handicapped.

This Notification identifies several posts to be suitable for persons who are Blind

or with Low Vision. This Notification has identified the posts of teachers for

various subjects for both primary education as well as higher secondary

education to be suitable for persons who are blind or with low vision. Several

State Governments such as Rajasthan, MP and Haryana, have adopted the List

of Posts as identified by the Central Government, and therefore these state

governments also consider the visually impaired for employment for a similar

post. Further, the States of Andhra Pradesh, Tamil Nadu, Kerala and Uttar

Pradesh have identified the posts of teachers for the visually impaired and

persons with low vision.

(A copy of the Notification dated 15.03.2007, bearing No. '16-7012004-D.D.lll

issued by the Ministry of Social Justice and Empowerment is annexed herein

and is marked as ANNEXURE - P)

(A copy of the Rajasthan Notification dated 10-10-2002 is annexed herein and

is marked as ANNEXURE - Q)

(A copy of the Andhra Pradesh Notification is annexed herein and is marked as

ANNEXURE - R)

(A copy of the Tamil Nadu Notification is annexed herein and is marked as

ANNEXURE - S)

23.lt is submitted that the post of a Head .Master for a High School has bee.

,tentffied for persons with low vision under the State Q,s,.'s'--*-1 t'uff,TfrlsTr:F

dated 03-08-2008 marked as ANNEXURE-J herein. Further the posts of

different teachers have been identified under the Central Government

notification dated 15-03-2007 marked as ANNEXURE-R herein. Moreover this

Hon'ble Court in W.P. No. 16396/2006 by its Order dated 29-06-2007, has held

that the exclusion of blind and low vision persons from the post of teachers in

core subjects and languages was not permissible. Added to this, by virtue of

the State Government Notification dated 10-06-2011, the post of the First

Division Assistant has been identified for blind and low vision persons.

Therefore, when all these posts have in fact been identified, there is no reason

as to why tne 1tt Respondent has not provided for the reservation of these

posts under the impugned Notification dated 27-04-2011.

(A copy of the Order of this Hon'ble High Court dated 29-06-2007 in W.P. No.

16396/2006 dated is annexed herein and marked as ANNEXURE-T)

24.|t is submitted that the visual impairment of visually impaired candidates would

not restrict them from carrying out any duties as prescribed for the teaching and

non teaching posts and they would be fully able to pursue their duties, Thus the

failure of the Respondents to reserve posts for the visually impaired candidates

is arbitrary and unfair.

25.Thus, being aggrieved by the action of the Respondents and having no other

alternative and equally efficacious remedy, the Petitioners have filed this

petition before this Hon'ble Court. The Petitioners have not filed any other

petition on the same cause of action before this court or any other court.

GROUNDS:

26. THAT the action of the Respondent in not reserving 2% of the posts for visually

impaired persons is in contravention of the Government Order dated 1-8-2009,

is illegal and in violation of Section 32 of the PWD Act and denies equal

opportunitres of employment to visually impaired persons.

27.THAT the ReSpOndent lacKs compelenue ru ii^rsrllrJs vrevsr'' ""r-'- :

from the benefit of reservation under the PWD Act' The policy behind

reservations for persons with disabilities has already been laid down by

Parliament through the PWD Act, and the State Government is only given

limited powers to implement the same strictly in accordance with what is

provided in the PWD Act and the orders of this Hon'ble court' ln E'V'

Chinnaiahy.SfafeofA.P.,AIR2005SC162,aConstitutionBenchofthe

Hon',ble supreme court of lndia has held that the state Government lacks

competence to tamper with the list of scheduled castes and scheduled Tribes

and provide for differential percentage of reservation for the different castes

fallingwithintheSamecategory.ThePWDActitselfprovidesforsub-

categorisation of such persons into those with visual' aural and locomotor

disabilities with 170 reservation for each' ln such an event' the Respondent No'

1 lacks the competence to exclude one among these specified categories from

any reservation i'e the visually impaired persons'

2S,THATbyexcludingvisuallyhandicappedpersonsfromthereservationfor

personsfordisabilities'thisNotificationisdiscriminatoryunderArticlel4,lS

and16ofthelndianConstitutionandisaviolationofthestatutoryrightsof

visually impaired persons under the PWD Act, 1995 as well as the Government

order No. DPAR 128 SRR 2006 dated 1-8-2009 issued by the Government of

Karnataka.

29.THAT the action of the Respondents in failing to reserve 2% of the posts for

visually impaired candidates out of the 5% posts reserved for persons with

disabilities, despite the fact that they would be fully capable of meeting the job

requirements of the teaching and non teaching positions' amounts to denying

visuallyimpairedcandidatesequalopportunitiesinpublicemploymentas

enshrined in Article 16 of the constitution'

30.THAT the Respondent No' t has failed to provide reservation for visuatly

impaired persons for the teaching and non teaching posts without any reasons.

The PWD Act does not give the Respondent State Government the power to

tamper with the category of disabled persons who come under this Act. Section

33 as well as the explanation a (i) of Rule 2(1) (tl) of the General Recruitment

Rules of Karnataka, 1977 include visually impaired persons within the scope of

physically handicapped persons or Persons with Disability. Once these posts

that are in contention here have been earmarked for reservations, anyone who

comes under the purview of 'persons with disability' cannot be excluded from

the benefits of such reservation, unless they are incapable of doing the job'

When this is not the case, as visually impaired persons are clearly able to do

the job of a primary school teacher, the impugned Notification in so far as it has

failed to provide reservation for visually impaired candidates is outside the

scope of the power of the State Executive and violates Articles 256 and 257

and thus deserves the interference of this Hon'ble court.

31.THAT The 1't Respondent, in the impugned Notification dated 27-04-2011 has

relied on the State Government Notification No. DPAR 52 SRR 1999 dated29-

11-ZOO2 wherein certain posts in the State Government Departments have

been identified for persons with disabilities. As regards blind persons and

persons with low vision, the Notification dated 29-11-2002 does not identify any

of the posts which called for in the Notification dated 27-04-2011' lt is submitted

that the Notification No. DPAR 52 SRR 1999 dated 29-11-2002 which

prescribes the-list of identified jobs for persons with disabilities in Karnataka,

has not identified all the concerned posts for persons with visual impairment

and the same is not in conformity with the Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995 (Hereinafter

the 'PWD Act, 1995',). Under section 32 of the PWD Act, the state

Government is required to review the list of identified posts at least every three

years. However, the Notification dated 29-11-2002 has not been reviewed since

the year Z112.Therefore, the Notification has remained without any review for 9

(t1 )developments in technology that now allow and assist a visually impaired

person to perform and undertake many activities such as reading, writing etc.

The list remains the same since 2oo2 arthough there are many changes in

technology which warrant a review of the list periodically to identify more posts

for the visually impaired persons. Therefore, the Notification dated" 2g-11-2002

is clearly not in conformity with the PWD Act, 1995 and hence the exclusion of

visually impaired and row vision persons from posts based on the said

Notification is improper and not permissible.

32'THAT the Notification dated 2g-11-2002 was also considered by this Hon,ble

High Court in W.P. No. 16396t2006. The said petition was filed chailenging a

Notification that excluded visually impaired and persons with low vision from

applying to the post of primary teachers. The Respondents in the said petition

also relied on the Notification dated 2g-11-2a02 to justify the basis of the

exclusion' However, Hon'ble Court by its Order dated 29-06-2007 in the said

W'P' No' 16396/2000 allowed the petition and while observing on the

Notification dated 29-11-2002 held, "Ihe posfs of teachers "in languages and

core subiecfs are not set apart for the persons with comptete blindness and low

vision. This kind of exclusion from certain posfs is not permissible unless the

Government reviews the /isf of posfs identified at periodic interuals not

exceeding three years.... tt is high time that the Government brings its

Notification in conformity with the Statute and Rutes framed thereunder.,,

Despite the Order of this Hon'ble Court, the Government has not taken any

measures to bring the Notification in conformity with the pWD Act. Further, the

said Notification has already been challenged by the petitioners in another

matter pending before the Hon'ble court numbered w.p. No. 276s3t2oog.

33'THAT the Notification dated 29-11-2002 is not in conformity with the pWD Act,

1995. Further, the identification made under the said Notification does not take

proper account of the changes and development in technology since 2002 and

with low vision. Many of such posts and duties therein are capable of being

performed by such persons and have in fact been identified by the Central

Government in its Notification dated 15-03-2007. Therefore, the impugned

Notification dated 27-04-2011 is unreasonable and incorrect in restricting itself

to provide for reservation only for the posts identified under the unreviewed

State Governme nt N otification dated 29-1 1 -2002'

34.THAT the Central Government has by its Notification dated 15-03-2007 has

identified several posts to be suitable for persons who are blind or with low

vision. This Notification has identified the posts of teachers for various subjects

for both primary education as well as higher secondary education to be suitable

for persons who are blind or with low vision. Therefore, when the Central---

Government has identified these posts for the blind and low vision and several

states such as Rajasthan have adopted the same, there is no reason why the

Karnataka Government Notification dated 27-04-2011 should not recognise the

same and reserve the teaching posts for the blind and persons with low vision'

3b.THAT by virtue of the Notification dated 10-06-2011, the post of a First Division

Assistant has now been identified even under the State Government

Notification dated 29-11-2002 which the impugned Notification purports to L - -

based on. However, no reservation has been provided for this post under the

impugned Notification and no changes have been made to the Notification

following the identification of the post under the State Government Notification

dated Zg-11-2002. This non-reservation of the post of First Division Assistant

even after identification is done is arbitrary and contrary to the PWD Act'

36.THAT the supreme court of lndia has clearly held that it is not necessary for

posts to be identified in order to provide for reservation to a specific category' ln

Government of lndia v. Ravi Prakash Gupta, (2010) 7 SGC 626, the

Supreme Court while observing on the identification of posts under Section 3l

1-\of the Act, held: "lt is only togicat that, as provided in Section 32 of the aforesaid.

Ac( posfs have to be identified for reseruation for the purposes of Secfion 33,

but such identification was meant to be simultaneously undertaken with the

coming into operation of the Act, to give effect to the provisions of Section 33.

The legistature never intended the provisions of Secfion 32 of .the Act to be

used as a tool to deny the benefifs of Secfio n 33 to fhese categories of disabled

persons indicated therein. Such a submlssion stikes at the foundation of the

provisions relating to the duty cast upon the appropriate Government to make

appointments in every establishment...reservation under Secfion 33 of the Act

is nof dependent on identification, as urged on behalf of the Union of lndia,

though a duty has been cast upon the appropriate Government to make

appointments in the number of posfs reserved for the three categories

mentioned in Section 33 of the Act in respect of persons suffering from the

disabilities spe/f out therein." Hence, the fact that the posts have not been

identified for visually impaired does not result in the conclusion that reservation

to these posts cannot be made. Therefore, in the present case, merely because

the posts notified have not been identified by the State Government, it cannot

exempt the Government from its duty to reserve posts for the visually impaired

and persons with low vision when such persons are capable of effectively

performing the duties required by such posts.

GROUNDS FOR INTERIM RELIEF:

37. The Petitioners submit that the impugned Notification dated 27-04-2011

disregards the obligations under the PWD Act and the Constitution and if the

application, selection and recruitment process is completed pursuant to this

Notification, grave injustice will be caused to visually impaired persons. Since

the application form does not provide for blind and low vision persons to apply

under the category of 'disability', many disabled candidates who are blind or

with low vision have not been able to sUbmit their application forms. Therefore it

is imperative that application forms are modified to include the category of

G9 accepted. lt is also imperative that they are also given the opportunity to sit for

an entrance test scheduled to be held on 25-07-2011 and additional facilities,

such as scribes, are provided to them to enable them to write the examination.

3g.lt is submitted that if the forms are not modified and the visually impaired

candidates are not given the opportunity to submit their applications, the rights

of the visually challenged persons wilt be greatly affected. lf selections are

made without accepting the applications from the visually impaired, the visually

impaired candidates will be left out of such selection process. Further, third

party rights of other candidates will be created. lt is submitted that if this

opportunity is missed by visually impaired persons, they would indeed be

prevented from taking the benefit of the reservations provided under the PWD

Act. lf all the posts reserved for the visually impaired are filled up, then this writ

petition would be rendered infructuous. Therefore it is imperative that the

selection process should be stayed till the pendency of proceedings under this

petition. ln the light of these facts, it is prayed that the interim relief sought for

be granted and the visually impaired candidates be allowed to submit their

applications, sit for examinations and be considered for the selection for the

posts of teaching and non teaching staff in Morarji Desai and Kittur Rani

Chenamma schools under the impugned Notification dated 27-04-2011'

PRAYER

WHEREFORE, in light of the above facts and circumstances, the Petitioner most

respectfully prays that this Hon'ble Court be pleased to:

A. Pass an order directing the Respondents to set aside the Notification dated

27.4.2011bearingNo.KRElS/Administration(1)cR(1)109/2010-llproduced

herein as ANNEXURE - D to the extent that it does not provide 2% reservation

for visually impaired persons in the posts of Language Teachers, social science

Teachers, Music Teachers, Principal'and First Division Assistant and Warden so

!rr ^:- ^L:l:1. . l-^,.^l Annarl| rnifiac

lY/ L

Full Participation and Protection of Rights) Act 1995 and The Karnataka civil

Services Recruitment Rules, 1977;

B. Direct the 1.t Respondent to identify and provide reservation for the blind and low

visioned persons in the Teaching posts of Principal, Language Teachers, social

science Teachers, MUSiC Teachers, warden and First Division Assistant' and the

post of First Division Assistant called for under the Notification dated 27'4'2011

bearing No. KRE|s/Administration (1) cR (1) 109/2010-11' produced herein as

ANNEXURE - D;

c. Direct the 1.t Respondent to accept the application of qualified blind candidates

and candidates with low vision for the posts under the impugned Notification

dated21-04-2ollandgivethemanopportunitytobeconsideredfortheposts

notified'

D. Grant any other relief, which this Hon'ble court deems fit under the

circumstances of the case in the interests of justice and equity'

INTERIM PRAYER

pending finar disposar of the above writ petition, it is most respectfuily prayed that this

Hon'ble Court may be pleased to direct the Respondent No' 1 to accept the applications

of visuary impaired persons for the posts of teaching and non teaching staff under the

impugned Notificatio n daled-ll:zotlproduced herein as ANNEXURE - D and to

provide all necessary facilities for visually impaired candidates for writing the

examination to be held on ZfitlOl1, such as providing them with scribes and giving

-them extra time for the examination and stay the selections, in the interest of justice and

equity.

Place: Bangalore

Date:Counsel for the Petitioner

Address folServlce:

JAYNA KOTHARI