Kalluri Sidamma, Kadapa Dist. vs Secy., Education Dept., Hyd. 10 ...
2023 Latest Caselaw 110 AP

             HON'BLE SRI JUSTICE M.GANGA RAO
                            and
              HON'BLE SRI JUSTICE V. SRINIVAS


                  Writ Petition No.29292 of 2012

ORDER: (as per Hon'ble Justice M. Ganga Rao, J)


     This writ petition is filed seeking to issue an appropriate

writ, order or direction more particularly one in the nature of writ

of Certiorari to call for the records pertaining to the common

judgment in O.A.No.11784 of 2009 and O.A.No.2889 of 2010

dated 03.10.2010 passed by the Andhra Pradesh Administrative

Tribunal and quash the same by declaring it as illegal, arbitrary

and contrary to the judgment of the Division Bench of this Court

in W.P.No.25048 of 2005 dated 04.08.2006.


2.   The case of the petitioner is that she is a physically

challenged person with 49% hearing impairment. Pursuant to the

District Selection Committee, 2006 (DSC-2006) notification dated

29.05.2006 issued by the 2nd respondent, the petitioner applied

for the posts of School Assistant and Secondary Grade Teacher

and appeared for the written examination and secured 54 and

68.50 marks respectively. The grievance of the petitioner is that

some of the candidates whose percentage of hearing disability is

less than the petitioner were appointed basing on the orders of the

Andhra Pradesh Administrative Tribunal (hereinafter called

"APAT"), whereas the same benefit is not extended to the petitioner

herein. The petitioner filed O.A.No.11784 of 2009 before the

APAT seeking a direction to consider her case under reservation of

hearing impairment. Pursuant to the interim order dated

09.11.2009 granted by the APAT, the case of the petitioner was

considered and rejected vide proceedings dated 20.2.2010 on the

ground that the petitioner is having below 50% of deformity of

hearing impaired, which is not considerable for reservation benefit

in view of Government Memo dated 3.11.2009. Challenging the

same, the petitioner filed O.A.No.2898 of 2010 before the APAT

questioning the Memo dated 3.11.2009 of the 1st respondent and

the consequential proceedings dated 20.2.2010 of the 5th

respondent and proceedings dated 30.3.2010 of the 6th respondent

in rejecting her case for appointment to the post of School

Assistant in DSC-2006 under physically handicapped (Hearing

Impairment) category and to set aside the same as illegal,

arbitrary and contrary to the provisions of the Persons with

Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995 (Act No.1 of 1996), which came intoforce

on 1st January, 1996. The APAT clubbed both the OAs and heard

the matter and passed a common order on 03.10.2010 dismissing

the same, without taking into consideration the judgment of the

Division Bench of this Court in W.P.No.25048 of 2005 dated

04.08.2006. The Tribunal held that the petitioner/applicant in

the OAs is having 50% of their Hearing Impairment as such, not

entitled for the benefit of job reservation at the most they fall

under the Category-II and are entitled for hearing aid at free of

cost or concessional rate and such of the candidates whose

disability is severe i.e., 75% and above are alone entitled for job

reservation and on that ground alone, the respondents have

rejected the claim of the petitioner. Following the same, the OAs

are dismissed declining to interfere with the impugned

proceedings. Aggrieved by the same, the present writ petition

came to be filed.

3. Sri Posani Venkateswarlu, learned Senior Counsel appearing

for Sri Gangisetti Rajeswara Rao, Advocate on Record states that

the based on the merit secured by the petitioner in the written

examination she was called for interview and considered her case

for appointment as School Assistant and found that she is not

eligible for job reservation under Physically challenged (Hearing

Impaired) quota as she is only having 49% Hearing Impairment as

per the certificate issued by the Regional Medical Board, Tirupati,

which is contrary to G.O.Ms.No.115 Women and Child Welfare

dated 30.7.1991, whereby 3% of posts were reserved in respect of

physically handicapped category for direct recruitment in the

State and Subordinate Services for each category i.e., Visually

Handicapped 1%, Hearing Impaired 1% and Orthopedically

Handicapped 1%. The Government issued G.O.Ms.No.56 dated

02.12.2003 classifying the Hearing Impaired candidates into four

categories. For Category-I, with impairment of less than 40% - no

special benefits are awarded, for Category-II with impairment of 40

to 50% - considered for hearing aids at free or concessional costs,

for Category-III with impairment of 50 to 75%, job reservation and

benefit of special employment exchange along with hearing aids at

free cost and for Category-IV with 100% impairment - facilities of

reservation and special employment are provided. The said GO

was issued contrary to the earlier GO.Ms.No.115 dated 30.7.1991.

The petitioner is entitled for appointment as per GO.Ms.No.115

dated 30.7.1991. However, the respondents by applying the

subsequent Memo No.12429/Genl.II/A1/2009 dated 03.11.2009

issued by the Government have rejected the case of the petitioner,

which is illegal and arbitrary. He would further contend that the

ratio decidendi that has been formulated by the Hon'ble Supreme

Court is to be followed in the case of appointment of the petitioner.

4. Learned Government Pleader for Services-III states that the

petitioner is not entitled for any job reservation as per

G.O.Ms.No.56 dated 02.12.2003 and Memo dated 03.1.2009,

since the petitioner does not fit in category-III (50-75%) hearing

impairment, which category entails for job reservation. The

petitioner falls under Category-II for which category there is no job

reservation and only hearing aids are provided at free or

concessional costs. The petitioner is not eligible for appointment

as she is having the deformity of Hearing Impairment of 49% only

and the APAT has rightly dismissed the OAs filed by the petitioner

and there is nothing illegal or irregular in the order of the APAT.

5. Having considered the facts and circumstances of the case,

submissions of the counsel and perused the record, this Court

found that the Tribunal while dismissing the OAs, observed that

when the applicants were sent for medical examination, the duly

constituted Medical Board examined the applicants and came to a

conclusion that the percentage of deformity is below 50% and they

are not entitled for the benefit of job reservation and at the most

such persons fall under Category-II and are entitled for hearing

aids at free or concessional costs. Only such of the candidates

whose disability is severe i.e., 75% and above are only entitled for

job reservation. The Tribunal further took a view that the

judgment of the Division Bench of this Court passed in

W.P.No.25048 of 2005 dated 4.8.2008 has not become final, since

the Government aggrieved by the said judgment went in appeal by

filing Civil Appeal No.868 of 2009 before the Hon'ble Supreme

Court of India, wherein the operation of the judgment of the High

Court was stayed and as such, the applicants are not entitled for

the benefit of the said judgment of the Hon'ble Supreme Court.

The Tribunal further held that when some illegality is committed

by the respondents in some other districts regarding

appointments, the applicants cannot seek relief of extending the

same illegality, which amounts to perpetrating the illegality and

the said requests were not conceded by the Tribunal. A perusal

of the record show that when the applicant was sent to

Government ENT Hospital, Koti for verification regarding the

genuineness of the Hearing Impaired certificate, the Medical Board

categorized the respondent/applicant falling under second

category as stipulated in G.O.Ms.No.56 dated 02.12.2003 in

respect of hearing impaired, classifying the candidates as

categories-I, II, III and IV. For candidates falling under category-I,

no special benefits are given. For candidates falling under

Category-II, Hearing Aids are provided at free or concessional

costs. For candidates falling under Category-III, Hearing Aids at

free of cost or at concessional rates are provided and the benefit of

job reservation of special employment exchange is given. The

candidates falling under Category-IV have the benefit of Hearing

Aids, facilities of reservation, special employment exchange and

special facilities in schools like scholarship. Since the petitioner

fall under Category-II of moderate disability of 40% and above and

not severe and profound, the respondent's case has rightly been

denied for appointment. While things stood thus, the Hon'ble

Supreme Court disposed of the Civil appeal No.3726 of 2007 filed

by the Government on 11.08.2015 as follows:

"We have seen the Medical Report given to us by All India Institute of Medical Sciences (AIIMS). As per the Report, Mr P. Eswara Reddy does not suffer from minimum 40% disability in PH (HI) category and similarly Mr P. Ramachandrudu does not suffer from minimum 40% disability in PH (HI) category. Under the circumstances, the issue raised in this appeal is rendered academic.

We accordingly dispose of appeal leaving the question of law open.

The disposal of the appeal does not affect the other persons who have been found to be physically handicapped having minimum 40% disability."

The contention of the learned Senior Counsel is that the petitioner

is entitled for appointment as School Assistant (Social Studies) as

per G.O.Ms.No.56 dated 02.12.2003 and also as per the orders of

the Tribunal in OA.No.9523 of 2010 & Batch dated 26.04.2011.

G.O.Ms.No.56 dated 02.12.2003 states that "Section 2(t) of the

persons with Disabilities (Equal Opportunities protection of rights

and full participation) Act, 1995 states that a persons with

disability, means, a person suffering from not less than 40% of

any disability as certified by a medical authority. A copy of the

Uniform Guidelines of the Government communicated in

D.O.Lr.No.16-22/99-N1-1 (PWD) dated 17.1.2000 is annexed." A

copy of the uniform guidelines of the government of India

communicated in D.O Letter No.16-22/99-N1-1 (PWD) dated

17.1.2000 is annexed. As per the guidelines, the recommended

classification is thus:

S.    Category      Type of         DB level           Speech       Percentage of
No.               Impairment         and/or        discrimination    Impairment
 1        I          Mild         dB 26 to 40      80 to 100% in      Less than
                    hearing       dB in better       better ear         40%
                  impairment           ear
2        II        Moderate      41 to 55 dB in    50 to 80% dB      50 to 70%
                    hearing        better ear       in better ear
                  impairment
3        III        Severe        56 to 70 dB        40 to 50%       50 to70%
                    hearing         Hearing
                  impairment     impairment in
                                   better ear.
4        IV       (a) Total        No hearing            No            100%
                  deafness                         discrimination
                  (b) Near          91dB and            -do-           100%
                  total          above in better
                  deafness             ear
                  © Profound       71 to 90dB      Less than 40%      75-100%
                  hearing                           in better ear
                  impairment

In clause B of the guidelines, the facilities to be offered to the

disabled for rehabilitation are given as under:

Category     I        No Special benefits.

Category     II       Considered for Hearing Aids at Free or
                      concessional costs only.

Category     III      Hearing aids free of cost or at concessional rates.

Jobs reservation Benefit of special Employment Exchange.

Category IV Hearing Aids - facilities of reservation - special employment. Special facilities in schools like Scholarship. Hearing aids - Exemption from 3 language formula (to study in recommended single language).

While considering the written brief filed on behalf of the petitioner

on 09.12.2022 before rendering the judgment, even as per

G.O.Ms.No.56 dated 02.12.2003, those persons having higher

degree of disability as shown in the annexure to the said GO, the

uniform guidelines issued by the Government of India, only the

persons categorised as Category-IV with hearing impairment of

100% alone are eligible for job reservation, but the persons falling

in Category-III with 56 to 70dB hearing impairment in better ear

with 50 to 75% of impairment are entitled for hearing aids free of

cost or at concessional rates, jobs reservation and benefit of

special employment exchange. As per the petitioner's impairment

with 49% disability fall in Category-II 40-50% disability,

considered for hearing aids at free or concessional cost only. The

subsequent Memo dated 03.01.2009 and connected G.O.Ms.No.31

dated 01.12.2009 are only clarificatory in nature, shall have

retrospective operation, hence the contention of the learned

counsel for the petitioner that G.O.Ms.No.31 dated 01.12.2009

has to be applied prospectively and it shall be applied to DSC-

2006 is unsustainable. The petitioner's contention that similarly

situated persons to that of the petitioner were appointed, however,

it is well settled law that Article 14 of the Constitution of India

enshrines only positive equality, hence, the contention of the

counsel for the petitioner holds no water. He also placed reliance

on the decision of the Hon'ble Supreme Court in Civil Appeal

No.3726 of 2007 and contended that the petitioner is entitled for

the ratio decidendi laid by the Hon'ble Supreme Court and entitled

for appointment. The said contention of the learned counsel

holds no water, since no ratio decidendi was laid by the Hon'ble

Supreme Court to apply the same to consider the case of the

petitioner for appointment to the post of School Assistant (Social

Studies) and the issue raised is rendered academic. The finding

given by the Tribunal is perfectly in order and there is no error of

fact to interfere with the order of the Tribunal. There is no

illegality or irregularity in the order passed by the Tribunal, which

warrants interference by this Court. Accordingly, the Writ Petition

is dismissed as devoid of merits. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pending

shall stand closed.

                                                ____________________
                                                 M. GANGA RAO, J



                                                 __________________
                                                   V. SRINIVAS, J

Date:      .01.2023

CSR




      HON'BLE SRI JUSTICE M.GANGA RAO
                     and
       HON'BLE SRI JUSTICE V. SRINIVAS




            W.P.No.29292 OF 2012

               DT:   .01.2023




CSR