flB

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

(oRtct NAL J U RtSDtCTtON)

W.P. No. l2Afi

...PETITIONERS

ETWEEN:

1. The National Federation of the Blind,

Having its Registered Office at:

Plot P. 21, Sector 6,

M.B. Road, Pushpavihar, New Delhi-1 10017

And its Bangalore Branch Office at.

!. No. 18, 14th Cross, Cholorupalya,

Bangalore- 23,

Represented by its General Secretary Mr. Nagaraj

2. Mr. Basavaraj K.N.,

S/o Mr. Nijaanandaiah,

Aged 23 Years,

Residing at Kodihalli village,

Kotenayakanahalli Post,

Kasaba Hobli, Tiptur Taluk,

Tumkur District- STZ2O1

3. Mr. Santhosha Basavaraja Chalavadi,

S/o Mr. Basavaraja Chalavadi,

Aged 20 Years,

Residing at No.1436,Ward No. 2,

Netaji Nagar, Muddebihal Taluk,

Bijapur- 586212

AND

i. The Karnataka public Service Commission

Udyoga Soudha,

Bangalore- 560001

Represented by its Chairman

2. The Secretary,

\J

]eoarrn ent of Personne I and Adm in istrative Reform s

Siaiie Govemment of Kamataka

No.32. Vidhana Soudna

Bangalore 560 001

The State Govemment of Karnataka

Department of Women and Child Welfare

M.S. Building

Bangalore-560001.

Represented by its Principal Secretary

4. The Commissionerfor Disabilities

No.40, Thambuchetty Road

Cox Town,

Bangalore-560 005 RESPONDENTS

CONSTITUTION OF INDIA

The Petitioners above-named most respectfully submit as follows:

1. This Petition is filed as a public interest litigation by the Petitioners on O"53ff t-ri

all visually impaired persons in the State of Karnataka to protect their rights for

equal opportunity to seek employment as Junior Assistants / Second Division

Assistants under the Persons with Disabilities (Equal Opportunities, Protection

of Rights & Full Participation) Act 1995 (hereinafter referred to as the "P\A.{}

Act'). The 1$ Respondent Department issued a Notification dated 02-02-20'1 i

No.E(3)/2010-11 PSC calling for applications from interested candidates tot th+:

post of Assistants/First Division and Junior AssistanU Second Division. l-l':i',

Notification provides for reservation for persons with disabilities only in case ,.i

persons who are leprosy cured, hearing impaired, locomotor disai:ility, *s6tnl

retardation and mental illness. The said Notification does not reserve any posts

for the visually impaired candidates for the post of Junior Assistantl Seccrr'i

Division and specifically bars visually impaired candidates and candidates u'iitt

r,i

,;l* vrsron from berrg eligibte to the post and applying for the same Th,-,=

ag3reved by the actions of the Respondents in not identrfying and arbitrar,r.,

exciuding the visually impaired candidates from being eligible and applying to

the post of Junior AssistanU Second Division, the Petitioners have filed this

petition in public interest.

ARRAY OF PARTIES:

2. The 1$ Petitioner is the National Federation of the Blind, New Delhi. Thr.r

Petitioner is an apolitical federation of visually impaired and low vision people

formed in 1970 with the philosophy of "Let the Blind Lead the Blind". The

Petitioner Federation strives for equality of opportunity for the Blind in the field

of Education, Training and Employment etc. The Federation is serving the blincl

community through its various Welfare programmes in the state. The Petiticrn,.:r

Federation presently has around 900 members all over the State. The Petitionr:r

is represented by its General Secretary.

3. The 2nd Petitioner is visually impaired, being fully blind and is therefore a per$sr:

with disability, having 100% disability. He has passed his SSLC examinationr;

with Second Class (59.M%), P.U.C examinations with First Class {72.6a/o) arrd

is currently pursuing B.A degree studies from Vijayanagar College, Bangalore

which is affiliated to Bangalore University. The 3d Petitioner is visually impairer,i,

being fully blind and is therefore a person with disability, having l}Oyo disabilitl;

He has passed his SSLC examinations with Second Class (82.56%) and he ir

currently pursuing B.A degree studies.

(A copy of the 1$ Petitionefs Disability Certificate is annexed herein an<l is

marked as ANNEXI,JRE - A)

(A copy of the 1s Petitione/s SSLC Certificate is annexed herein and ir markr-,r,:

as ANNEXURE - B)

(A copy of the 1s Petitionefs P.U.C Certificate is annexed herein anC is markerij

as ANNEXURE - C)

C'annexed herein anci t;

#

A :c;.^y of his B.A. Degree Provisionai Marks Card is

marked as ANNEXUEE - D)

(A copy of the 2nd petitione/s disability certificate is

marked as ANNEXURE - E)

(A copy of the 2nd Petitione/s SSLC Certificate is

marked as AIINP(URE -F)

annexed herein and is

annexed herein and is

4 It is submitted that the 1ut Respondent Department issued a Notification dateel

02-02-2A11 bearing No. E(3)12010-11 PSC calling for applications fri:iir

interested candidates for the post of AssistantslFirst Division and Junicr

Assistant/ second Division. The educational qualifications requtred for applying

for the post of Junlor Assistanu second Division prescribed in this Notificatio,

are as follows:

Must be aged 18 Years or older'

Must have passed either sslc or have an equivalent educational qualification

(A Original copy of the Notification dated a242-2A11 No'E(3)/201A-11 PSC it'

annexed herein and is marked as ANNEXURE-G)

5. However, in addition to the above educational qualifications, the abcve

Notification does not identify any posts for the visually impaired under the list of

posts for Junior Assistanu Second Division. Further the Notification specifically

mentions that the candidates with low vision and blindness would not be eligif:le

for applying to the posts under the Notification'

The above mentioned Notification allows interested candidates to only apply for

the posts only by way of an online application. lt is submitted thai many visually

impairecl candidates, having the requisite qualifications, seeking to apply to th';

post of Junior AssistanV Second Division, sought to submit an online application

for the said post. Although the online application allowed candidates to choose

the category of "Physically Handicapped" it required them to choose onil''

among the categories of leprosy cured, hearing impaired, locomotor disabiltt"

a.

b.

,

.:>-€*r:a retardation and mental illness. The category of 'visually imparred' is rti'l

:.-:r ded for in the online application. Wrthout choosing one of the categorie:

prescnbed in the online application, it is not possible to proceed with the

submission of the application. Therefore, none of the visually impairer"l

candidates were unable to complete the online application and hence havr:

been unsuccessful in applying for the post under the said Notification' Tl-:ts

includes the 2nd and 3'd Petitioners herein.

(A copy of the incomplete Online Application of the 2nd Petitioner is annexecl

herein and marked as marked as ANNEXURE-H)

(A copy of the incomplete Online Application of the 3'd Petitioner is annexeC

herein and marked as marked as ANNEXURE-J)

7. lt is submitted that the said Notification prescribed the last date for tlte

submission of the applications as 08-03-ZAi1. However, on the website of tlrr:r

1"t Respondent, the last date for submission of the applications was extended tr:

16-03-201 1 . Therefore, although the last date is extended, all visually impairei i

candidates are still unable to submit their online applications.

(A copy of the announcement in the website of the 1* Respondent with thr'r

extended last date is annexed herein and marked as ANNEXUEE-K)

g. lt is submitted that the impugned Notification is in violation of the provisions of

pWD Act. The pWD Act was enacted with an objective to provide employmenf

and education opportunities to all people with disabilities. Section 32 of tlrtr

pWD Act specifically provides that the appropriate governments shall identify

posts in establishments which can be reserved for persons with disability.

Further Section 33 of the PWD Act specifically requires Respondent Nos. 1 ancJ

2 to reserve vacancies of not less than 3o/o'for persons or class of persons trui{h

disability. Section 33 reads as follows:

.section 33: Every appropriate GOvernment shall appoin{ in evei\i

establishment such percentage of vacancies nof /ess than three parcent f|t

persons or c/ass of persons with disabitity of which one percent each shall !''c

"E-served for persons suffering from-

a Biindness or low vision

b. Heaing impairment

c. Locomotor disability or cerebral palsy

ln posfs identified for each disability;

Provided that the appropriate government may, ttaving regard ta the type cr

work caried on in any department or establishment, by notificatian subject tr;

such conditions, if any, as may be specrfred in such notification, exempt any

establishment from the provisions of tttis section."

9. Therefore under Section 33 of the P\ldD Act, the Respondent No. 1 and 2, the:

State Government cannot discriminate among the different categories o{

disability and is under an obligation to implement the provisions of the Act and

to make reservation for disabled people in all classes of posts in the public

sector. Respondent No.1 is therefore bound to make reservation for visuallin

impaired for the post of Junior AsssitanU Second Division Assistant especiaily

when they futfil all the required educational and age qualifications.

10"The impugned Notification is also in complete violation of the definition r:f

'Persons with disability' under the P\AID Act. Section 2(t) defines 'persons wrtlr

disability' to mean persons with not less than 40% disability. Further under tirr,:

PWD Act, 'disability' is defined as to include persons with visual impairment

Hence the impugned Notification by providing reservation for persons witli

disability, but restricting it to persons with disabilities other than visualli,

impaired is violating the provisions of the p\A/D Act, 1995.

1 1. The impugned Notification is also in violation of the Amendment macle to Rr-r!r:

9(1A) of the Karnataka Civil Services (General Recruitment) Rules, 1977, bt,

means of the Notification issued by the Personnel and Administrative Refonl:,

Secretariat, Govenlment of Karnataka No. DPAP. 50 SRR 2000 on 03.09.2005

whicit defines 3 'pr)iSoo with disability' or a 'physically handicapped ,-'anciidat,-:

j

": mean a Person sufferrng from

: sabrirtY including blindness and

these Amended Rules, as seen

not less than forty percent (40%) of anl''

low vision among others' The purpose o{

from the Amendment to Rule 9(1A)' is to

provide for reservation of three percent (3%) of the vacancies for physicallv

handicappedpersonsinGroup,Aor,B,andfivepercent(5%)ofthevacancios

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'

(A copy of the Amended Karnataka civil services (General Recruitment) Rules'

1977,amended by means of the Notification dated 3'9'2005 bearing No' DPAR

50SRR2000isannexedhereinandmarkedasANNEXURE.L)

12.1t is submitted that Section 32 of the P\AID Act specifically provides that the

appropriategovernmentsshallidentifypostsinestablishments,whichcanbe

reservedforpersonswithdisabilityandthatthestategovernmentshallreviev',

thelistofpostsidentifiedatperiodicalintervalsnotexceedingthreeyearsarrd

update the list taking into consideration the developments in technology

Keeping this in mind, the Union of India through the Ministry of social Justice

and Empowerment had issued a Notification dated 15'03'2007 in pursuance of

section32olthep\A/DAct,identifyingalistofpostssuitableforpersonswith

disabilities. This exhaustive list was prepared by setting up an Expei't

committee with one sub-committee on each category of disability i'e' for tltt*

orthopedicatly Handicapped, Hearing Handicapped and visually Handicappect

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

BlindorwithLowVision.ThisNotificationhasidentifiedthepostsofAssistants

tobesuitableforpersonswhoareblindorwithlowvision'severalstatt:

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

Posts as identified by the central Government' and therefore these str;tr:

governments also consider the visually impaired for employment for a simili:r

post.

: :cE-r cl ine Nctrficatlon datec 15C3ZOAi' Dearlng No rc- -'*-*-L

ss-ec Dy,tf-e Minrstry of social Justice and Empowerment ls annexes nerein a'

s marked as ANNEXURE - M)

A copy of the Rajasthan Notification dated 10.1o.2oo2ls annexed herein and Is

marked as ANNEXURE - N)

13.|t is submitted that the visual impairment of the Petitioners would not restrtct

them from canying out any duties as prescribed for Junior Assistants and they

would be fully able to pursue their duties under the post of Junior Asssitantl

second Division Assistant. Thus the exclusion of the Petitioners from this post

is arbitrarY and unfair.

14.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 otl-rer

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

GROUNDS:

15.THAT the action of the Respondents in expressly barring visually impairer"l

persons from applying to the posts of Junior Assistanu Second Divisiort

Assistant is illegal and in violation of section 32 of the PWD Act and denies

equalopportunitiesofemploymenttovisuallyimpairedpersonswhoqualifiec-!

from being considered for the posts'

16.THAT by specifically excluding visually handicapped persons, being those whc

are blind or with low vision from applying, this Notification is discriminatoii.

under Article 14, 15 and 16 of the lndian Constitution and is a violation of titt:

statutory rights of <jisabled persons under the PWD Act, 1995 as well as tltt+

Karnataka Civil Services Recruitment Rules 1977, as atnended by tl-rr:

Notification dated 3.9.2005 bearing No. DPAR 50 SRR 2000 and deserves tl:e'

interference cf this Hon'ble Court'

t-:--

7 THAT the action of the Respondent No. 1 in not accepting the apprications '---'f

fully qualrfied visually challenged candidates for the posts, and thereby denyinli

them the chance to be considered as candidates for the post of Junioi-

Assistanu second Division Assistant solely because they are visually impaireii

is completely arbitrary and unreasonable' lt is submitted that there is no reasort

why visually impaired candidates should be excluded from being considered fcr'

the post of Junior Assistants as they are fully able to do atl the tasks that wouiq'J

bepartofthejobandthereforesuchaclassificationbetweenpeoplewithvisurrl!

disabilityhasnoreasonablenexuswiththeobjectiveofselectionofqualifierJ

andablecandidatesforthepost,andisthereforeillegalandbadinlawandisitt

violation of Article 14 of the Constitution"

lg.THAT the Notification datedo2.O2.2O11 issued by the Respondent No' 1 is

arbitraryandirrationalasitprovidesreservationforthepostsforallphysicaily

handicapped persons, but specifically excludes blind persons and persons with

lowvisionanddoesnotallowthemtomakeappticationsforthepostsdespittl

thembeingabletodothejob.SuchactionoftheRespondentNolisitl

violatiorrofSec.33ofthePV1DActwhichrecognizesblindperson$aspersons

with disabitity and grants them rights to reservation in employment'

19.THAT the impugned Notification in specifically barring visually impaired person$

from being considered for employment for the post of Junior Assistant/ secoricl

Division Assistant is without any tegal or rational basis. Visually impairerl

persons are fully capable to fulfilling the job requirements of Junior Assistantl

second Division Assistant and they are being appointed in such jobs by thr:

central Govemment vide its Notification dated 15'03'2007 where it has

identified several similar posts such as Assistants' Assistant Supervisors' Junicr

DivisionClerk,seniorDivisionClerks,officeAssistantsetc.fortheblindancj

low visioned. These posts are also identified for the visually impaired by othei

stategovernments.TheimpugnedNotificationwhichexcludesvisuallyimpaire.'|

Gpersns from being considered eligible for the posts denotes a failure of thr_-

state Government to recognize the capabilities of visually handicapped trainecl

and qualified teachers and should therefore be set aside as it violates the rightto equality and the right to life guaranteed to the petitioner under Article 14 and21 of the Constitution.

20' THAT the impugned Notification is based on irrelevant considerations and isvitiated by non-apprication of mind. The Respondent No. t has not given anyreasons whatsoever as to why there has an excrusion imposed in the case olvisually impaired candidates while such exctusion does not apply in the case ofpersons suffering from other kinds of disability. This being the case, it is difficuttto see any special reason for continuing with this exclusion in the impugnednotification, more so when no such reason has been stated by the RespondentNo' 1 as prompting such exclusion. The Notification thus is arbitrary andunreasonable and deserves to be set aside.

21'THAT the action of the 1d and 2nd Resoondents in excluding visually impairecrpersons from applying for the post Junior Assistant/ second Divisio, Assistariiand failing to reserve one-third of the posts out of the 5% posts reserved f*rpersons with disabirities, despite the fact that they would be fuly capabte ofmeeting the job requirements of Junior Assistanu seeond Division Assisiant.amounts to denying visually impaired candidates equal opportunities in publir.:

employment as enshrined in Articre 16 of the constitution.

Z2'THAT the impugned Notification in excluding visually impaired persons fronrapplying for the post Junior Assistanu second Division Assistant, is completeil.in violation of the Karnataka civil services (General Recruitment) Rules 1g77as amended by the r,rotification dated 3.9.2005 bearing No. DpAR 50 sR*2000 which mandates that posts be reserved for all persons with clisabilityincluding persons suffering from complete blindness, for upto 5% of the [rosts i;-,

the Group c and Group D categories and 30/o of the posts in the Group A ai_.,

Group B categories. /i tf ,)

I v \//

23. THAT the Respondent No. t has excluded visually impaired persons frorrt

applying for the teaching posts without any reasons for exemption or any

notification exempting them. The P\AID 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) (li)

of the General Recruitment Rules of Karnataka, 1977 include visually impairerJ

persons within the scope of Persons with Disability and they cannot [:r*

excluded from the benefits of such reservation, unless they are incapable af

doing the job. \Mren this is not the case, as visually impaired persons arc

clearly able to do the job of Junior Assistants, the impugned Notification in so

farasitintendstomakesuchexclusionisoutsidethescopeofthepowerofthe

state Executive and in violation of section 33 0f the P\A/D Act'

24.THATthe supreme court of lndia has clearly held in secretary and AnL vs'

Ravi Prakash Gupta and Anr. {2OlO) 7 SCC 626, that reservation und+r

section 33 of the PV\/D Act is not dependent on identification of posts anr'i a

duty has been cast upon the Respondents to make appointments in tn" n'*hr:t

of posts reserved for the three categories mentioned in section 33 of the Act in

respect of persons suffering from the disabilities spelt. out therein. In view of tl'tir:

finding, the Respondents cannot refuse applications and fail to consider

applications from visually impaired candidates and not reserve posts from thern

only because the said post of Junior Assistant has not been identiiied by ti-t*

Respondents in th;* State of Karnataka'

25.The Petitioners submit that the impugned notification disregards the obligations

under the PWD Act and the constitution and excludes visually impaireri

qualified candidates even from applying for the posts of Junior Assistants' Tirr:

impiugned Notification presently requires candidates to submit ortl\i onlin:

'\__iapplicationS. ln these onltne applications, there is no category of 'visr-r;ri

impairment' under the Physically Handicapped category, as all persons witlt

visual impairment have been illegally excluded and due to this feature in the on-

line application form, persons with blindness or low vision are not able to submit

their application forms. Unless a particular disability is selected, an applicanl

cannot proceed with the submission of the application

26. Unless the online application process is suitably amended and aoplicatiot"tr:

from visually impaired candidates are accepted online or they are pernritted ti-:

submit paper applications, they will not be considered for the examinations artrJ

the selection for the post. As the extended last date for the submission of

applications is 16.03.2O11, it is crucial that the interim prayer is granted, so thilt

the visually impaired candidates are permitted to submit their applications and

are also given the opportunity to sit for the entrance test in July 2A11'

27.It is submitted that if the visually impaired candidates are nct given tirq

opportunity to submit their applications, the rights of the visually clrallengc':l

persons will be greatly affected. lf selections are made without accepting titt:

applications from the visually impaired, the visually impaired candidates will br:

left out of such selection process and they will not be given their rights itt 1'7'

reservation in the posts as mandated under section 33 of the PWD Acl

Further, third party rights of other candidates will be created. lt is submitted ihat

if this chance is missed by visually impaired persons, they would indeed be

prevented from tal<ing the benefit of the reservations provided under the P\AID

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

petition would be rendered infructuous. ln the light of these facts, it is prayr:d

that the interinn relief sought for be granted and the visually impaired candidaics

be allowed to submit their applications for the post of Junior AssistantlSecr:rtcl

Division Assistant.

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 02-

o2-2O11 No.E(3) ntJrc-11 PSC produced as ANNEXURE -G- herein, to the

extent that it bars persons who are blind and with low vision from being

considered for the post of Junior AssistanUsecond Division Assistant, to bring it

in conformity with the Persons with Disability (Equal Opportunities, Ftrll

participation and Protection of Rights) Act 1995 and The Karnataka Civil

Services Recruitment Rules, 1977.,

B. Direct the Respondent No. 1 to accept the applications of qualified visually

impaired persons for the posts of Junior Assistant/Second Division Assistant ancl

give them an opportunity to be considered for the posts of Junior Assistant /

Second Division Assistant;

C. Grant any other relief, which this Hon'ble Court deems fit under thc

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

INTERIM PRAYER

Pending final disposal of tne above writ petition, it is most respectfully prayed that this

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

of visually impaired persons for the post of Junior AssistanUSecond Division Assistarrt

under the impugned Notification dated O2.O2.2A11 in the form of written applications or-

make sr-ritable modifications in the online application format so as to accept applicaticttls

from persons with visually impairment, and permit them to sit for the selection

examinations, and pass any such further orders in the interest of justice and equity.

Place: Bangalore

Date. Counsel for the Petttioner