Smt. Shruti Kalra vs University Of Delhi & Ors.
2001 Latest Caselaw 125 Del

ORDER

A.K. SIKRI, J.

1. The credentials of the petitioner in this petition demonstrate as to how the petitioner who is a handicapped person, as she was born with congenital blindness, has not allowed this disability to disable her. Even without any vision or proper vision since birth, the petitioner not only pursued her studies but proved to the world at large that what a normal student could do she could do the same equally well or even better. This is clearly demonstrated by the testimony of her academic record. She passed her Senior Secondary Examination with distinction in Accountancy as well as Economics in 1981. She joined B.A. (Hons.) degree course in Instrumental Music and topped in Daulat Ram College, University of Delhi in all three years; in 1984, received third prize in Culturefest, for Sitar Vadan during the Diamond Jubilee Celebration of Delhi University; in 1985 she was awarded of All India Post Graduate Scholarship for Instrumental Music by the University of Delhi. After Graduation she pursued higher studies by joining M.A. (Instrumental Music) and topped in her College. She was awarded L.Jugal Kishore Jagdish Prasad Memorial Prize for this. She was awarded Junior Research Fellowship for Instrumental Music by University of Delhi during the period 1986-90. With burning desire to achieve more milestones, she joined and completed her M.Phil. (Masters Course in Philosophy) from Delhi University with First Division. Adorning all these qualifications, medals and prizes, this visually handicapped person dreamt of a brilliant career as well. AND it was a well deserved dream, a legitimate expectation. She started with modest beginnings by getting appointment as Trained Graduate Teacher (Instrumental Music) in Bal Bharati Public School, Delhi. In March, 1985 she was selected by U.P.S.C. for appointment as Lecturer in Instrumental Music. In April, 1986 she was appointed T.G.T. (Instrumental Music) by Delhi Administration. However, she has the aspiration to become a teacher in Delhi University. Saw the opportunity coming her way when two posts of Lecturer (Instrumental Music) in Shyama Prasad Mukherjee College (for women) were advertised in April, 1995. She also applied. She got the interview call. She was interviewed by Selection Committee. But to her dismay, she was not selected. The respondent-college filled only one post by appointing Respondent No.5. The petitioner felt that she had been ignored.

2. It may be mentioned that the advertisement, inter alia, provided for reservation for blind persons by stipulating as under:

"3% reservation is for blind and orthopaedically handicapped candidates. However, the prescribed qualifications in no way will be relaxed for these categories."

3. She felt that injustice was done to her inasmuch as she not only deserved to get the said post on merit even without reservation and in any case she was bound to get the post in view of Circular dated 25th October, 1994 of the Delhi University providing for reservation to the following effect:

"A) The 3% reservation as recommended by the Committee for blind and orthopaedically handicapped categories be made known in every advertisement of the University College."

[emphasis supplied]

"B) Atleast one disabled person must be appointed in each college during the academic year 1994-95. The disabled persons are mostly available in Humanities and Social Sciences."

[emphasis supplied]

4. As there was no handicapped person appointed in the college, she claims the appointment on two grounds: firstly, there could be no possibility of her not being appointed as there had been none appointed as a handicapped candidate and at least one had to be appointed and she was the only such deserving candidate. Secondly, there was no other candidate, of course none handicapped who could be considered equal on merit to the petitioner in view of her proven ability based on experience of teaching for half a decade to the satisfaction of all and her personal unmatched merit of academic and practical experience.

5. She made representation dated 8th May, 1995, to the Vice-Chancellor. According to her, the Vice-Chancellor assured her that he would take up the matter with the College authorities. When according to her the matter was still under active consideration in August, 1996, again the second post of Lecturer (Instrumental Music) which was not filled up earlier, was advertised. Not to lose the right of participation in the selection process, the petitioner applied again and was interviewed on 2nd August, 1996. However, she was placed second in the merit panel, first being Respondent No.6. At this stage, she filed the present writ petition when Respondent No.6 had also not been given the appointment.

6. In the petition, the petitioner has nurtured the feeling that notwithstanding the University's own reservation policy as well as provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1) of 1996 (hereinafter to be referred as "Disability Act) providing for such reservations, the handicapped persons like the petitioner is left high and dry. She painfully states that where-as the noble gesture of reservation of teaching post for ameliorating the misfortune of the handicapped deserves to be fully implemented; not only it is not done so, the protest and agitation of the handicapped seeking the implementation of the reservations has unfortunately created such a cruel resistance that even a candidate like the petitioner with proven merit, excellent personal academic qualification acquired at a level higher than even the normal scholars and with proven ability as experienced teacher is denied the post most deserved by her. And, it is not bonafide, but on account of the prejudice generated by treating the said reservation, so nobly motivated, as an undesirable imposition.

7. In the counter-affidavit filed on behalf of Respondent No.2 (Vice-Chancellor) as well as counter-affidavits on behalf of respondents 3 and 4, it is emphasised that the petitioner only had the right to be considered for that post. She was interviewed on 2nd May, 1995 and duly considered along with other candidates and the Selection Committee did not find her suitable for the post of Lecturer. Respondent No.5 who was suitable was appointed. As no other candidate was found suitable for filling up of the second vacancy, the post was not filled which was advertised again in 1996. This time petitioner was again considered along with other candidates and Selection Committee recommended the following panel in order to merit:

1. Ms.Reeta Swami, Respondent No.6.

2. Ms.Shruti Kalra, Petitioner.

8. In the affidavit of Respondent No.2, it is further stated that in 1996 when the Selection Committee recommended the aforesaid panel, it was mentioned that appointment letter to respondent No.6 should be issued only after obtaining clarification on 3% reservation for blind candidates. Therefore, letter of appointment on regular basis could not be issued and Respondent No.6 was appointed on ad hoc basis only.

9. Thereafter, affidavit dated 11th August, 1998 was filed by the Principal of the College stating that work load in the College with respect to the subject Music (Instrumental) in the last 3 years had reduced and, therefore, only one teacher in the concerned subject was required who could take the classes of that subject. In order to justify this stand the respondents have filed the Annexure giving number of students in the Department of Music (Instrumental) which are as under:

--------------------------------------------------------------

A       1996-97             No. of students         Total





B       1997-98





C       1998-99




 


 

10. The petitioner has filed reply to this affidavit joining issues on need to appoint another Lecturer. It is her submission that the fallacious attempt has been made to deny justice to the petitioner by coming out with the story of the "reduction in work load". According to her not too many students seek admission for the specialized subjects like Instrumental music is nothing new and the situation has not changed since filing of this writ petition. In any case appointment against the permanent post cannot be affected adversely by fluctuation in number of students.

11. Two issues arise for consideration in this case, viz:

1. Validity of the selection procedure adopted in the years 1995 and 1996 in the light of reservation policy.

2. Validity of respondent-college's decision not to fill second post.

12. I now deal with these questions seriatim:

13. No.1. Validity of the selection procedure adopted in the years 1995 and 1996 in the light of reservation policy:

14. In a separate judgment pronounced today in CWP.No.2549-95 entitled Pushkar Singh & Others Vs. University of Delhi and others, which also relates to the reservation for handicapped persons in teaching post in University of Delhi, I have dealt with this aspect in detail in the light of Resolution No.193/3 dated 16th July, 1994 of Executive Council of the University of Delhi as well as provisions of Disability Act. Therefore, it is not necessary to spell out these provisions again.

15. Admittedly in April, 1995 when the two permanent posts of Lecturers (Instrumental Music) were advertised and the advertisement also mentioned 3% reservation for blind and orthopaedically handicapped candidates, the consideration of the petitioner's candidature should have been keeping in view the aforesaid reservation. It should not have been an empty formality. Apart from mentioning that 3% reservation is provided for the handicapped persons it is not stated or even explained in the counter-affidavit, that one post in question was earmarked for handicapped person or that she was considered as reserved candidate. Considering the case of the petitioner "along with other candidates", as if petitioner also belongs to "general category" itself vitiates the selection process. [State of Uttar Pradesh Vs. Dr. Dina Nath Shukla and another ]

16. In `Brochure on Reservations and Concessions for Physically Handicapped in Central Government Services', it is mentioned that preference is to be given to handicapped persons. The relevant provision reads as under:

"4. Preference in Appointment:- In categories of posts in Group `C' and Group `D', which are identified as being suitable for handicapped persons, other things being equal, preference should be given to handicapped persons even in excess of the quota reserved for them."

[O.M. No.39016/6/77-Estt. (SCT), dated 4-11-1977].

A number of jobs under Group 'A' and Group 'B' have been identified as can be held by physically handicapped persons. In the recruitment to these posts preference would be given to physically handicapped persons.

[O.M. No.36034/4/86-Estt. (SCT), dated 25-11-1986]."

17. The aforesaid provision categorically states that in recruitment to even Group 'A' and Group 'B' posts where they have been identified for physically handicapped persons as stipulated in Appendix-II, preference should be given to physically handicapped persons. The teaching posts are the posts which are considered suitably for handicapped persons as per Appendix-II and it was one of the recommendations of the report of the Committee on identification of posts that jobs in Universities in fields such as Humanities, Law and Languages can be handled by orthopaedically handicapped and blind persons. The post in question is a teaching post and falls within the discipline of humanities. Going by the academic record and other achievements of the petitioner, it is not digestable as to how petitioner was not found suitable. No doubt it is the function of the Selection Committee to see the suitability of a candidate and the Court cannot assume this role and substitute itself as Selection Committee. However, it is within the jurisdiction of the Court to examine as to whether there was a proper consideration of a candidate for a post by the Selection Committee. In this case the Selection Committee treated her like any other general candidate and that kind of consideration is clearly not valid. The Selection Committee did not adhere to reservation norms. It also did not consider the case of the petitioner in the manner suggested in the Brochure. The Selection Committee obviously did not even bother about the Resolution dated 16th July, 1994 of the University of Delhi which not only mentions about reservation but specifically mandated that one person should be appointed by each institution during the academic year 1994-95. The respondents, therefore, did not act fairly. The selection by adopting such method of consideration is clearly vitiated. Same applies to the selection procedure adopted by the Selection Committee which met on 2nd August,1996 August, 1996. Both these selections are accordingly quashed and set aside.

18. No.2. Validity of respondent-college's decision not to fill second post:

19. Insofar as not filling of the second post is concerned, no doubt it is the prerogative of the employer to fill or not to fill the post. However, the reason given for not filling of the post is not at all convincing and an impression is left in the mind that the excuse taken is to deprive the petitioner to get the post. The reduction in number of students would be of no excuse so long as the discipline is taught in the College. Each section would be having definite number of classes per week and with 3 years course, the number of classes to be taught gets multiplied by three. Therefore, the work load has to be considered on this basis and not on the basis as to how many students are there in one class. How one teacher can teach all the subjects of B.A. (Honours) degree course in Instrumental Music of all the three years students is not understandable. Be that as it may, since this Court cannot compel the respondents to fill the post. I leave the matter at that with the hope that the authorities may consider filling up second post as well in the interest of students.

20. The writ petition is accordingly allowed with following directions to the respondents:

1. To consider and decide whether the respondent college is to fill up second post of Lecturer in Instrumental Music.

2. If the respondent authorities decide to fill second post, then to consider appointing the petitioner to the post of Lecturer in Instrumental Music by filling the second post as well keeping in view the mandate of the Disability Act and the Resolution No.193/3 dated 16th July, 1994 which inter alia provided that at least one disabled person be appointed in each college during the academic year 1994-95. If this is done then Respondent No.5 who is already teaching for the last 5 years can continue in her post. This should be done within a period of two months from today.

3. In case the aforesaid is not feasible then the selection of the Respondent Nos.5 and 6 stand quashed. The respondents authorities are directed to fill up the post keeping in view the reservation policy contained in that Circular and Disability Act and this exercise is to be done within a period of four months from today.

21. Petitioner shall also be entitled to costs. Counsel fee is fixed at Rs.5,000/- payable by Respondent No.3 College.