JoymalyaBagchi, J.
1. The petitioner, who is an orthopedically challenged person, being partially affected with polio had overcome his adversities and sought appointment to the post of Assistant Motor Vehicle Inspector (for short, 'AMVI') in A.P. Transport Subordinate Service, pursuant to the Notification No. 45/2008, dated 30.12.2008, issued by the Andhra Pradesh Public Service Commission (APPSC). Petitioner was qualified in all respects for the said post and, in fact, also possessed a driving license issued by the competent authority. However, as the respondents had exempted rule of reservation under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, ' the of 1995') with regard to the said post, the petitioner was not given a call letter. In fact, Rule 5(a) of the A.P. Transport Subordinate Service Rules (for short, 'the Rules'), prescribed no appointment shall be made for the post of AMVI in direct recruitment for Physically Handicapped Persons. Under such circumstances, petitioner approached the Andhra Pradesh Administrative Tribunal at Hyderabad (for short, 'the Tribunal') in OA No. 1480 of 2012, assailing the aforesaid Rule exempting reservation, praying for a direction upon the respondents to provide reservation to persons with disabilities under the Physically Handicapped especially Orthopedically handicapped persons to the post of AMVI, permit him to participate in the selection process, and appoint him to the said post with all consequential benefits. The matter was contested on behalf of the respondents, who contended before the Tribunal that the petitioner having participated in the selection process was estopped from challenging the process itself. It was further pleaded that in view of the very nature of duties of the AMVI, the post was exempted from the reserved categories under the of 1995. The Tribunal, having accepted the contentions of the respondents, dismissed the said application. Hence, the petitioner is presently before this Court.
2. Sri J. Sudheer, learned Senior Counsel, appearing on behalf of the petitioner, submits that the reservations under the of 1995 were promulgated to give effect to international commitments and in furtherance of the constitutional mandate of extending the doctrine of equality and fraternity amongst all persons including persons with disabilities. It is further submitted no notification was issued by the appropriate Government exempting the nature of work i.e., the post of AMVI from the reservation under the proviso to Section 33 of theof 1995. Hence, the Tribunal erred in law in not setting-aside Rule 5(a) of the Rules, which is ultra vires to the of 2016 and in not directing the petitioner to be considered for appointment to the post of AMVI by applying the reservation as envisaged under the of 1995.
3. In view of the submissions made on behalf of the petitioner, we called upon the State to clarify whether the impugned notification was issued in terms of the proviso to Section 33 of theof 1995. Additional documents have been filed before us wherefrom it appears that on 22.3.2021 a notification bearing G.O. Ms. No. 4, purportedly new Act i.e., Act of 2016 was issued, which reads as follows:
"In exercise of the powers conferred under Section 34 of Rights of Persons with Disabilities Act, 2016 (Central Act No. 49 of 2016), the Governor of Andhra Pradesh hereby order that partial exemption on 6th, 56th and 86th roster points for the posts of Regional Transport Officer (by Direct Recruitment and Promotion) and Deputy Transport Commissioner (by Promotion) and convert the posts for Deaf and Hard of hearing and to give full exemption from implementation of Rule of Reservation for Persons with Disabilities in the posts of Motor Vehicle Inspector (by Promotion), Assistant Motor Vehicle Inspector (by Direct Recruitment and Promotion), Transport Head Constable (by Promotion) and Transport Constable (by Direct Recruitment) in the Transport Department as it is a pre-condition that the persons holding these uniformed positions must possess driving license.
2. The Transport Commissioner, Andhra Pradesh is requested to take further immediate action for necessary/appropriate suitable amendments to the A.P. Transport Subordinate Service Rules and A.P. Transport Service Rules, accordingly."
4. Sri S. Sriram, learned Advocate General, appearing on behalf of the respondents, argues that the post of AMVI requires active movement and alertness. This is imperative not only for the purpose of discharging the duties assigned to the post but also in public safety. Furthermore, such post requires possession of a valid driving license, which may not be issued to persons with certain degrees of disability. Having considered these circumstances, the State has issued notification under the proviso to Section 33 of theof 1995 exempting the aforesaid post-under the of 2016. Learned Advocate General, however, fairly admitted that the notification would be prospective in operation.
5. We have considered the submissions of the parties.
6. The petitioner, a physically challenged person suffering from orthopedic disabilities, had applied for the post of AMVI in 2008. He possessed and continues to possess a driving license, which is annexed to the writ petition. It appears that the petitioner was qualified in all respects to apply for the said post and was successful both in the written test as well as physical examination. However, as no reservation had been provided for appointment to the said post, in view of the embargo under Rule 5(a) of the Rules, he was not appointed.
7. We find much force in the submission of learned Counsel for the petitioner that the embargo under Rule 5(a) of the Rules exempting physically challenged persons from appointment to the said post cannot be treated as an exemption of reservation to the said post as envisaged under the of 1995 or the present legislation i.e., the of 2016.
8. Act of 1995 was promulgated pursuant to the adoption of the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region in the Economic and Social Commission for Asia and Pacific meeting held at Beijing in 1992. India was a signatory to the aforesaid declaration and in view of such international commitment, it became obligatory on the part of our country to make a law to provide for the following:
"(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-à-vis non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmers and services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream."
9. The solemn pledge of equality of opportunity and dignity to all enshrined in our Preamble was sought to be extended to all individuals including those challenged with various disabilities by promulgation of the said legislation. The law provided for setting up of various authorities to lay down policies to extend equal opportunities to people with disabilities in the area of education, employment, affirmative action, social security as well as institutional assistance. Section 33 of theof 1995 inter alia provided that the appropriate Government shall in every establishment make appointment of not less than 3% of persons or classes of persons with disabilities of which 1% each shall be suffering from (i) blindness or low vision; (ii). hearing impairment; and (iii) locomotor disability or cerebral palsy respectively.
10. Section 33 of theof 1995 relating to reservation of posts reads as follows:
"33. Reservation of Posts.-Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
11. The aforesaid provision unequivocally casts a statutory duty on every Government to reserve atleast 3% of posts in favour of persons with disabilities, of which 1% of each shall be reserved for persons suffering from (1) blindness or low vision, (2) hearing impairment and (3) locomotor disability or cerebral palsy respectively. The sole exception to such reservation is when the appropriate Government upon due enquiry to the nature of work publishes a notification in the Official Gazette by exempting such type of work/posts from reservation. Furthermore, such notification is required to be laid before the Parliament or the Legislative Assembly of the State, as the case may be, under Section 73(2) of theof 1995. Appointment to public posts must confirm to the principles of equal opportunity as envisaged under Articles 14 and 16 of the Constitution of India. Un-equals cannot be treated as equals and in order to ensure that the equality clause in the constitutional scheme is a palpable reality and not a mere formalism, affirmative action provided for persons with disabilities under the law must be given its fullest expression in the matter of public employment. Denial of reservation for persons with disabilities as provided under the of 1995 in the appointment to public posts would render the selection process un-constitutional being violative of the constitutional pledge of ensuring equality of opportunity to all in matter of public employment under Articles 14 and 16 and thereby assuring dignity and self respect to every individual in society.
12. The present selection process, which was undertaken in 2008 for appointment to the post of AMVI, falls foul of the statutory requirement of affirmative action which, in fact, extends the constitutional mandate of real equality. In that prospective of the matter, we are of the opinion the Tribunal erred in law in coming to a finding that the petitioner having participated in the selection process, could not have challenged the impugned Rule, which excluded reservation for persons with disabilities. It is settled law that there cannot be any estoppel against statute and therefore selection process which runs counter to the statutory mandate of reservation for persons with disabilities was illegal and ought to have been declared so by the Tribunal.
13. We are of the view the exemption from the statutory rule of reservation could not have been issued in the manner as provided under Rule 5(a) of the Rules. Proviso to Section 33 of theof 1995 mandates that, the appropriate Government, upon considering the type of work carried on in any department or establishment, may issue notification subject to such conditions exempting such type of work/post from the provision of such section.
14. Sub-section (3) of Section 73 of theof 1995 provides that the notification issued under the proviso to Section 33 of theof 1995 shall be laid before the Parliament in the case of Central Government or before the State Legislatures in case the appropriate Government is the State, in the manner as provided therein. The Scheme of the of 1995, therefore, provides for a rigorous exercise to exempt any post from the reservation envisaged under it. Firstly, the appropriate Government must after due assessment of the nature of work come to a subjective conclusion that the benefit of affirmative action cannot be extended to persons with disabilities to such post. The exercise is in the nature of an exception to the general rule of reservation and the Government must in all cases extend the benefit of reservation save and except where such reservation cannot be extended due to impossibility. It is apposite to mention that the petitioner had in fact placed on record the decision of other States like Tamilnadu and Kerala where reservations had in fact been extended to similar posts rendering the impugned rule un-reasonable and unjust. Failure to lay subordinate legislations before the house of Parliament may render such regulations invalid in law.
15. The Hon'ble Apex Court in Association of Management of Private Colleges v. All India Council for Technical Education and others, (2013) 8 SCC 271 , held failure to lay amended regulations under Section 24 of the All India Council for Technical Education Act, 1987 (for short, 'the AICTE Act') (parimateria to Section 373 of theof 1995) before the Parliament vitiates the said Regulations. The Hon'ble Apex held as follows:
"67. The position of law is well settled by this Court that if the Statute prescribes a particular procedure to do an act in a particular way, that act must be done in that manner, otherwise it is not at all done. In Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422 , after referring to this Court's earlier decisions and Privy Council and Chancellor's Court, it was held as under:
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, 1875 (1) Ch. D 426, which was followed by Lord Roche in Nazir Ahmad v. King Emperor, 1936 (44) LW 583, who stated as under:
x xxx
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 and again in Deep Chand v. State of Rajasthan, AIR 1961 SC 1527 . These cases were considered by a three-Judges Bench of this Court in State of U.P. v. Singhara Singh, AIR 1964 SC 358 and the rule laid down in Nazir Ahmad's case (supra), was again upheld. This rule has since been applied to the exercise of jurisdiction by the Courts and has also been recognised as a salutary principle of administrative law."
In view of the above said decision, not placing the amended Regulations on the floor of the House of Parliament as required under Section 24 of the AICTE Act vitiates the amended Regulations in law and hence the submissions made on behalf of the appellants in this regard deserve to be accepted. Accordingly, Points 47.4 and 47.5 are answered in favour of the appellants."
16. When a thing is prescribed by law to be done in a particular manner, it is to be done in that manner or not at all. This wholesome proposition of law applies with full force to the facts of the present case. Without adverting to the aforesaid rigorous procedure, the rule of reservation for appointment to the post of AMVI under sub-sections (i), (ii) and (iii) to Section 33 of theof 1995, was exempted by Rule 5(a) of the Rules. Hence, the impugned rule is ultra vires to the of 1995 and creates a hostile discrimination violative of Article 14 and liable to be declared un-constitutional. Under such circumstances the plea of the petitioner to seek appointment to the post of AMVI, who possesses a valid driving license and is qualified in all other respects to seek appointment to the post by applying the reservation as envisaged under Section 33 of theof 1995 is well merited and deserves consideration.
17. In this connection, we may observe that various other States i.e., Tamilnadu and Kerala have extended the beneficial rule of reservation to the self same post and therefore we are of the considered opinion, it would be un-reasonable not to extend the benefit of affirmative action to the said post, particularly when the petitioner is in possession of a driving license. Subsequent Notification, dated 22.3.2021, promulgated under the of 2016 is prospective in nature and does not affect the selection process to which the petitioner participated and more so as he possesses a driving license. Nothing has been placed before us to show that the subsequent notification has been placed before the Legislative Assembly till date and we choose not to express any opinion with regard to its legal validity.
18. Accordingly, in the light of the aforesaid discussion, we allow the writ petition and set-aside the order of the Tribunal in OA No. 1480 of 2012, dated 23.1.2014, holding that the respondents ought to have extended the rule of reservation as envisaged under Section 33(ii) of theof 1995 in the selection process undertaken in 2008 to the post of AMVI and, accordingly, we direct the 1st and 2nd respondents to appoint the petitioner to the post of AMVI in any available or future vacancies, in accordance with law, by applying the rule of reservation under Section 33 of theof 1995, within eight (8) weeks from the date of communication of this order. No order as to costs.
19. It is needless to mention, appointment of the petitioner, which shall be made by providing necessary age relaxation, be treated notionally from the date of appointment of other candidates in the 2008 selection process only for the purpose of computation of his qualifying service for pension and other retrial benefits but not for any other purposes including arrears of salary and seniority etc.
20. As a sequel, miscellaneous applications pending, if any, shall stand closed.
