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CIVIL APELLATE JURTSDICTION

SPECIAL LEAVE PETITION

.E 130 OF THE,OONSTITUTION OF

'*P'O)- '

WI-TH PRAYER FOR INTERITVI RELIEF!.

PO$ITION OF THE PARTIES

Before theHon'ble High Court

rw Tl'll$ couRT

BET$JEEN:

1. The Selection Authority and l

Deputy Director tAdministration)'

Department of Puhlic lnstructiotts

(Kolar DiEtrict), $tate of Kartrataka'

KARNATAKA STATE ..ResPondent No'1 .,PETITIONER'l

2. The secretary'

DePartmerrt of Personnel anC

Administrative Reiorrns"

State Governmdnt of Karnataka

No"32. Vidhana Soudha'

. KARNATAKq STATE. ..ResPondent Not2 ..PETITIONER'2

2. The Cornmissione.

for Disability, No.10,

Thami:uchetti Roacl.

Cock Torvn, B;rngalore,

KARNATAKA STATE. ,,RESPONCIENT-2 ..RESPONDENT-2

a

Tc,:

THE HON'BLE CHIEF JUSTICE OF INDIA

AI{D HIS OTI{ER COMPAN'CN JUSTICES

OF Tl{E SUPRETVIE CCURT OF INDIA NEW DELHI

THE $PECIAL I".EAVE PETITION CF THE PETITIONHRS ABOVE

NAlvlED MOST RESPECTFU{-LY $HQWTH:

i. The petitioners above narned respectfully subrnit this petition

seeking special leave to appeal uncler Article 136 of the Constitution

of lndia against the judgernent and final orcler dated 29.6.2007 passed

by the Divis.or'r Benclr of the Hon'bie Fligh Gourt of Karrrataka in

W.P.No.1 6396/2006. [{ence. t'ris Speciat Leave Petition,

a J1

QUESTIONS OF LAW:

The following questions of law of general public importance

anses tor consicieration of thrs Fion'ble Court:

2.1 Whether the High court of Karnataka is justified in directing the

petitioners to hold a special recruitineni exclusively for tlre Physically

lrandicapped persons more particularlv to fill up the post of 'lo/o to the ,

visually' impaired persons ?

2.2 Whether the Hrn'ble High Court rrf Karnataka is justified in

directing the petittoners herein to reserve 1% of the vacancy of

primary school i:tchers to tlte visuallV tmfralred or low vision

persons ?

?..g Whether the Hott'lrle Hiqh Couri of Karttatarka is justified in

holding that the Government has not issuecl any notificatlon under

Section 33 of the Persons with Disabiiity( Equal opportunities,

Protection of i'ight and full partictpatlon) Aci 1995 exemptlng the

pntltary school teat:hers flotn Section 33 of the Act. When the

Notification dated 29, 11.2002 is;sueci by ihe lstate

Government

produced as Annexure-G irr the tvrrt petition?

2.

a

4.

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3. DECLARATION UNDER RULE - 1I2I

The petitioners state that no other petition seetring Special

Lea're to Appeal has tieen filed by tfrem against the itnpugned order of

rhe Hon'ble Hi11h Court ot Karnataka date J 29.6.2007 made in

W.P.No.1 6396i2005

DECLARATIof\r UNDER RULE 4(6)

The nnne.xures protlucerl alonq with the Special Leave Petition

are true coptes of the documents which forrned part of the records of

the case rn the Court below agatnst whose order the Special Leave to

5. ]he petitiot'lers seek leave to appeal on the following among

other grour,',is:-

GROUNDS

5.1 The order passed by the Hon'ble High Court of Karna{afa is

contraril to law. facts and probatrilities of the case.

5,2, That the order pass:d by the Hon'ble High Cotrrt of Karnataka

runs contrary trl the Recruitment Rules and the roster policy of the

State Governme.nt.

5.3. That the Hott'b!r High court of KarnataL" lsiied to consider

that, State Go,rernment by its Notification clated 22'2'1979 amentled

Rule I of General Recruittnent Rules oi 1977 and inserterl 1(A)

ranCicaPPed Person. Rule 9(1}(A)

1.A)Notwithstandingaltythingccntaineclintherulesof

recruittnentspeciallymatleinrespectofanyserviceor

post.ifinsuchrulesofrecruitmentdirectrecruitmentis

prescribecl as r>ne crf the rnethods of recruitment tfive

percentofthevacanciessetapartforthatrnethodin

eachotthecategoriesofgeneralmerit.Schedulecastes

artdSclteduledl-ribesanrlirreaclrofthecategories

alllongotherbaci<rvardclassasshailbereservedfor'

and) strall be iilted by direct recruitment frorn among

candidateswhoarephysicallyhandicapped:l

provided that this isub.rule shall not be applicabte to

ii) any post for appointment to which specified

plrysical standards are prescribed in the rules of

recruitrnenti

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iii) the post of Drivers of Motor Vehicles: and

iv) such otherr posts as the Government may be

order directlI

Provided furtner that this sub-rule shall also not be

applicable for direct recruitment of persons suffering

frorn a physical handicap of such nature and in i'espect

ofsuchpostsasmaybespectfiedbyNotification.lbV

Governmerrt From time to time.

The reading of the above Rules makes it clear that, 5% of the seats

have treen reserved for nhystcally handicapped persons as against

3% seats reserved under disabiltry Act. The finding cf the Hon'ble

High Court of Karnataka that the Governnlent has not taken any

steps to aBpoittt tlte rrlrvsicallv ilattclicar:pecl rrersons itt the State

Service is totallv tni;cotlct,ived.

5.4 Ti'rat the Hon'ble High Cottrt of Karnataka further failed to

consider that, government of KarnCtaka issued tiotification dated

20.9.2005 calling for application frorn the eligible candidates for.the:.

post of prirnary school teachers. As per the Recruitment Rules' 57o

seats has been reserved tor tr,e physically hanclicapped persons. ln

the said Notiticatlon. for the ai:pointment of the primary school

teachers- tre persons with fully blind are not eligible to be appointed

r$

as primary school teacher. tn the piirnary schooi level, teachers

have to take care of the small r:hildren and he has to build up the

personality ancj discipline in the sntail children. lf the teachers are

blind, it is not possiLrle to rnonitor and take care of tire small children.

ln vieu.' of that. urhiie issuing notification persons rvith blincl are not

made eligrbie to make apptication for recruitment of the primary

school teacher. This aspect of the rnatter is completely over lootcecl

b1r the Hon'ble High Couri of Karnataka.

o,--,5.5 The Hon'ble Hiqh Court cf Karnataka further failed to corisider

rhat, state Gover nment in rts Notification dated 29.1L2002 in

exercise of its pov/er conferred by sub section 1 of section 32 of

Persons with Disanilities {Euual Opportunitv, protectiorr of rioht and

full rrarticriralronl Act t995 idenril'ecl the t)ost specified in Colurnn

Nos. 3. 4, 5, 6. 7. I and g of ttre $chedule in respect of category of

disalrled specified in the headings of the respective colunrns in the

establishment specifled in column NO.z thereof. ln the said

Notification sorne of the pcsts have been reserved for the blind

person. ln so far as departrnent of Publrc lnstruction is concel'ned.

only ntusic teacher Grade-l and ll were reserverJ tc.r rhe blind persons.

Music teacher Grade.l and ll. packers. counters, Group.D sweeper,

cleaner and peon post has been r;iven to tne lorv vision persons.

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l-4in"", the Government ha:l identlfied the post as required undcr

Sectiorr 32 of the Act. the Government need not issue Nctification

, exempting any department as required under Section 33 of the Act.

The State Governn-'ent has nol exemptefl any department as such

from purvier,v of the Act, Ttre some of the posts are ictentified which

can lre rrlserved ior the physically handicapped rlore particularly

visually impaired person$. State Gove:",tment fully cornplied with the

matldate of Disabilities Act. this aspect of the matter is completety

over lootced bv the tJivision Bench of the Hon'ble High Court ofi

5.E,,' That the Hon'ble High Court of Karnataks further failed to

constcier that. teachers ttt primarV school level educate the children'

moulrling tltelr character, buitcling up their perscnality ald make them

fit to become responsible ctti;en of the countr\. ln the home' small

chilciren grow ttnder the care of the tnother. in the schOol small

children are grow under the care of the teacher. if the teacher is blind

and not in a positiorr to monitor the activities of the children. it is

irnpossible to build up the goocl cltaracter arrd personality at the

initial stage. l'he small chiidren require disciplined edr.rcation at the

formative period. lf the blin6 persons are appointed to the primary

sctrool teachers. it rvill adverselr/ affect the education of the srnall

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children and discipline amonq thsm. Tl,ris aspect of the matter was

also completely over iooked trv the Hon'ble High court of Karnataka.

5.7. Tnat the Hon'trle Higlr Court of Kanrataka further tailed to

consider that. this Flon'ble Court in a judgement reported in AIR 1989

SC 183 laid doln a law that:

"Though teaching is the last choice in the job market, the

rcle ot teachers is central to all processes of formal

education. Tl're reacher alorre cotrld bring out the skills arrd

intellectual calrauilities oi stutJents. t{e is l..te engine of the

,.clucational system, He is a principai instrument in

alvakening the chiid to cultural values, He neecjs to be

encJoweci anci energised wath l)eeded potential to deliver

enliqhtened servicr e.{llected r.rf hirn. His quality shculd be

such as would irrspire and motivate into action the benefiter,

He rnust keep himself abreast of ever cnanging conditions.

He is not to perform in .r wooden arrd unimaginative way. He

rnust eliminate fissiparous tendencles and aititudes and

infuse nobler and national ideas irt younger tninds. He

tnvolvetnent in national integration is tnore importartt,

-^- --Lt^ t,indeed i,ndisper;s able."

I

/It

ln view of the law laid down by tlris Hon'ble Court. the quali$ among

the teacher 1as to b: tnaintained, otherwise. whole education system

ulill be spoiled. ln view of that, State Govelnment after examining the

matter has taken decision to appoint the blind persons and low vieuat

persons only' to the post of the music teacher in the department of

Putrlic lnstructions and for the po$t of Music teacher, Packers.

Gounters. Group-D post. Srueepers. Cleaners and Peon. The order

passed by the Hon'ble Higll Court of Karnakka run contrary to the

law laid down by this Hon'ble Gourt referred to above.

5.8.- fhat the Hon'hle High Court of Karnateka further failed to

I*uiO*, that. the writ petition filed by the first respondent is barred

by resjudicata. Thd petitioner . Sangha earlier approached the

Hon'hle High Court of Karnataka in W.P.No.3$17t2OA5 seeking

direction to the State Government and its authorities to appoint blind

persons to the post of prilnary school teachers to the extent of 1%'

l'his Hon'ble Cotrrt by its oi'der datecl I5.11.2005 clearly held that:

,, No provision has beerr rnade for reservation of blinci

persons, we are satisfied that since the notification does

not intend to fill up any of the iclentified trosts, it was not

pecessarV for the State $overntnent to titare atly provision

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for the reservation of blind persons. ,As ana when the

identifiecj and notified ;. osts are fillecl up, the res-ervation

, provision snall be given effect to,"

ln view of the order ptassecl fiV the l{ort'ble t{igh Court of Karnataka,

the first respon,Cent cannot approach the Hon'ble High Court of

Karnataka tn tnothe; wrlt petition with a verv same prayer to appoint

thern to the post of primary schooi teacher. The writ petition filecl by

the first responclent is barred try resJudtcata. '[he i']on'ble High Court

of Karnataka ought not to lra,re etrtertain the rvrit petition filed by the

first respondent, The eltire apprcach made by the Hon'b'le High Court

of Karnataka is contrary to law.

5.9. The reasonings of tl're l{on'hle High Court of Karnataka that

-the Notification daterj 20.9.2005 rssued bi' tlte $tate Government

calling for applicaticn for ihe Bost of pritnary sctlool teacher

exclusion of the blirtq persone is contrar'r' tc 9i1) of General

Recruitment Rutes ie totaliy misconceiveO. The Hon'ble t'liqh Couri of

Karnataka rrrisunclerstood and mtsreacl Rule g{1t of the General

Recruitment Rules, lt rs nurnbly sutrtnitteci that, State Goverriment

has not excludeq the i:li^d persolls lletttg appoitttecl as teacher' As

per the Notification dated ?9.11.2002, the slate Government has

reservedthepostcftttl,tsicteachertotheblindFr€leoIr'Hence'itis

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clear that the Goverrrment has not excludect the blind teacher being

appointed as a primarv r:lrool teachers, This aspect of the matter is

cornpletely over iooked bv the Horr,ble Hiqh Court of Karnataka.

5.,f0 That the Hon'ble '{igh Court of Karnatalta furtlrer failed to,t'

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consider that. Governnrent has issued Notification on 29.11.?002

identifiecl the post to flre physically handicapped persons including

the blind person. The saicl norifrcation has beerr reviewecj and issued

Governrnent Order x 12.10.2004 to make F.ecruitment as per the

Notification dated 29.11.2002. Hence. it is clear that Governlnent has

reviewed the list of post identifiecl from tinre to tinre as contemplated

under sectiorr 32 of Disabilities Act. The entire approach made by the

llcn'ble Hiqh Court of Karnataka is contrarv to law,

5.11, The Hon'ble High Cottrt of Karnataka further failecl to consider

that, state Goverrrment in its Notification datecl 13.9.2006 amended

Rule 9{A) of Recruitment Rules of Karnataka Civil Service Rules 1g77

ancl providecl 3Ya of re;ervarion {Horizontal Reservatlon) in

recruitnrent for Group.A and Group-B posts for the persons with

disabilities. ln the said Notifiearioi. post of the teirchers has been

reserved for blind or low vision persons, ln so far as Hearimasters of

the High school which is Group.g post, the lecturer in pre-University

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education. Lecturer in degree colleges. lecturer in polytechnlc

engineeringcl:lleqe.lhiscleartvshowsthet.intentionofthe

Governrnent is that. tre person with visually irnpaired should not be

appointed as a teacher iti prllnary school i.e,, Group''c po*t'

However'pi.ovisionhasneetrntailetoappotntasleciurerinPre'

university college. degree co leqe and engineerlllg college whiclt is

Group.A post. This aspect of the lnafter is contpletely over looked by

the Hon'ble High Coitrt of Karttataka'

That the Division Bench of the Hon'ble High Oourt of, 5.12,

5.13.

Karnataka has not considered an1,of the contentions urged attd the

Notification produced in the statement of objectiorrs' only on the

sl/mpathetic consideration passeci the order which runs contrary to

the Recruitlnent Rules and law laid down by this Hon'ble court'

Ttrat the Hon'ble High oouri of Karitat;tka.frlrther failed

to consider that. the Judqlnent retied upoll bv the first respondent is

not aprrlical:ia Ior the cese of tlre res{ronclent' Further' the Official

fulemorandurn dared 29.12.2005 issuecj by the lri"rister ot Personnel'

Public Grrevances ancl Educitiorr derrarttnent cf t'ersonai training wilt

not give anv assistance ro the respondent. I his aspect of the matter

wascompletelvoverlool<ecbvtheHon,bleHrghCourtofKarnataka;

ri

6. GROUNDS FOR INTER.IM RELIEF

It ts submltteci that. on the l.rasts c,f the crrdcr pasced by the

Hon,irle High Court. the rcspondent ttisisting upon'the petitioneri

iterein to hold the s,recial recruitment to fill ttp 1% of the post cf

visuallv irnpaired and low vision p'ersons and threatening to initiate

contempt of court proceedings against petitiolrer for non

inrrrtementatiop oi the saici order, lf the order passed by the Hon'ble

High Court of Karnataka is enforceci, the small children etudying in

the prtmarV school wrll be put to trarclship and effect the educational

atmosphere of the state. Henc:. rt is Just and necessary to grant

interiin orcler as prayeC for bv the petitioners'

NflAIN PRAYER

ln view of tlre facts and clrcuntstanc:es of the case' it is most

resrrectIull]ipraVedthat.thisHon,bleCourtInaVbepleasedtoi

a.GrantSpecialLeavetoAppealtothepetitioneragainst

tlrefinalJudgmentandorderdated:2906.2007tnadein

W.P.No.16396/?006 passeC bv the Hon'ble High Court of

Karnataka

7.

1tAnd

b. Pass suctt other order or Orders lrs this t-lon'ble CoUrt

rnav deetns fit antJ ptCIper in the circumstances of the case.

INTERIl1/I REI.IEF

It is therefc re. most respectfully prayetl that this Hon'ble Gourt

a) Grant an interim exparte order cf stay. staying the

operatton of ftre impugned order dated:29.06,20u7 made in

W.P.lrjc.1g39612006 Oasseri by the Divisio,t Bench of the

Hon'ble Hiqh Court of l/rslrlataka:

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And

c) pass such oth:r orrler or

may deemed fit and Prop,er

ca5e.

orders as this Flon'ble Court

in the circumstances of the

FILED BY:

(ANITHA SHENOY)ADVOCATE FOR PETITIONERS

STATE OF KARNATAKA.

fr {B.MANOHAR}ADDL.GOW.ADVOCATE

RAWN BY: -roh z, x{b'