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TAMILNADU ASSOCIATION FOR THE RIGHTS OF ALL TYPES OF DIFFERENTLY REP. BY ITS STATE SECRETARY S. NAMBURAJAN V/S THE SECRETARY TO GOVERNMENT, DIFFERENTLY ABLED WELFARE DEPARTMENT & OTHERS, decided on Tuesday, June 19, 2012.
[ In the High Court of Madras, Writ Petition No.14449 of 2012 & M.P.No.1 of 2012. ] 19/06/2012
Judge(s) : N. PAUL VASANTHAKUMAR
Advocate(s) : M. Christopher. V. Subbiah, Spl. Govt. Pleader.
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  " 2012 (3) LLN 380"  







judgment - (Prayer: Writ petition filed under Article 226 of the Constitution of India to issue a writ of mandamus directing the third respondent to relax the upper age limit upto 10 years for the persons with disability in the appointment under the ICDS Scheme as provided under Section 38(1)(b) of The Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act 1995 and according to G.O.(Ms) No.704 dated 15.4.1964 issued by the public (services-A) department Government of Tamil Nadu and also as per the proceedings of the second respondent in D.O.Letter No.5910/DAW 3 1/2012 dated 24.5.2012.)1. The prayer in the writ petition is to issue a writ of mandamus directing the third respondent to relax the upper age limit upto 10 years for the persons with disability in the appointment under the Integrated Child Development Scheme as provided under Section 38(1)(b) of The Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act 1995 and according to G.O.(Ms) No.704 dated 15.4.1964 issued by the public (services-A) department Government of Tamil Nadu and also as per the proceedings of the second respondent dated 24.5.2012.2. The case of the petitioner is that it is an association viz. TAMILNADU ASSOCIATION FOR THE RIGHTS OF ALL TYPES OF DIFFERENTLY ABLED AND CAREGIVERS - TARATDAC having registration number bearing No.292 of 2010. It was formed to protect the welfare of disabled persons of all categories. The petitioner association is affiliated with the National Platform for the Rights of disabled a national body for the disabled citizens.3. The Government of Tamil Nadu recently announced that it is going to fill up about 28 500 vacancies in the Nutritious Meal Programme in the State of Tamil Nadu through G.O.Ms.No.72 Social Welfare and Noon Meals Scheme Department dated 30.4.2012. The said vacancies include Noon Meal Organizer Cook Helper under the Nutritious Meal Programme and Worker and Helper in Integrated Child Development Scheme (ICDS).4. The Government of Tamil Nadu issued G.O.(Ms) No.110 Social Welfare and Nutritious Meal Programme Department dated 14.5.2012 for appointment to the post of Anganwadi Workers Mini Centre Anganwadi Workers and Anganwadi Helpers.5. The Government has also issued G.O (Ms) No.163 Social Welfare and Nutritious Meal Programme Department dated 18.8.2010 reserving 3% posts for Differently Abled Persons in the appointment of Anganwadi Workers and Helpers.6. According to the learned counsel for the petitioner association even though 3% of posts have been reserved for Differently Abled Persons age relaxation has not been given to them and therefore there may not be sufficient number of candidates available to fill up the 3% of the posts which has been reserved for Differently Abled Persons.7. Learned counsel for the petitioner association also submitted that the Government of Tamil Nadu issued G.O (Ms) No.704 Public (Services-A) Department dated 15.4.1964 giving age relaxation to Physically Handicapped persons upto ten years for all posts and the said Government Order is still in force.8. Learned counsel for the petitioner further strongly relied on Section 38 (1) of The Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act 1995 in support of his contention.9. Section 38 (1) of The Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act 1995 is extracted hereunder:-Schemes for ensuring employment of persons with disabilities:- (1) The appropriate Governments and local authorities shall by notification formulate schemes for ensuring employment of persons with disabilities and such schemes may provide for --(a) the training and welfare of persons with disabilities;(b) the relaxation of upper age limit;(c) regulating the employment;(d) health and safety measures and creation of a non-handicapping environment in places where persons with disabilities are employed;(e) the manner in which and the persons by whom the cost of operating the schemes is to be defrayed; and(f) constituting the authority responsible for the administration of the scheme.10. Learned counsel for the petitioner further submitted that the petitioner association approached the second respondent seeking relaxation of age for Physically Challenged Persons and the second respondent through D.O.Letter No.5910/DAW 3.1/2012 dated 24.5.2012 recommended the claim made by the petitioner association for relaxation of upper age limit upto ten years to Differently Abled Persons for appointment to the post of Anganwadi Workers and till date the first respondent has not taken any decision either to grant relaxation of age or not and the last date fixed for submitting application to various categories of posts under ICDS is going to be over by 20.6.2012 and if no decision is taken granting relaxation of upper age limit to the Physically challenged persons their rights would be seriously prejudice.11. When the matter was posted for admission on 7.6.2012 Mr.V.Subbiah learned Special Government Pleader was directed to get instructions and to find out as to whether any decision is taken by the first respondent regarding the grant of relaxation of upper age to Physically Challenged persons as on date. Learned Special Government Pleader on instructions submitted that the Government is examining the issue in detail which will take some more time and he seeks two weeks time to take a decision in this matter by the first respondent.12. In the light of the said submission made by the learned Special Government Pleader appearing for the respondents and having regard to the Government Order in G.O.Ms.No.704 dated 15.8.1964 giving relaxation of upper age limit to Physically Challenged Persons in all Government appointments which is still in force which was issued prior to the enactment of The Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act 1995 and having regard to the statutory provision available under Section 38 (1) of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act 1995 which mandates the appropriate Governments and the local authorities to formulate a scheme for ensuring employment of the persons with disabilities and provide for the relaxation of upper age limit this Court is of the view that the petitioner association is justified in approaching this Court for such a relief.13. As per the Central Act the first respondent cannot reject the request seeking upper age relaxation. The only discretion available to the first respondent is to what extent relaxation of upper age can be granted.14. In the above circumstances this writ petition is disposed of giving direction to the first respondent to consider the proposal seeking relaxation of upper age limit to Physically Challenged persons for appointment of Anganwadi Workers and Helpers which was recommended by the second respondent as early as 24.5.2012 and take a decision in the light of the statutory provision viz. Section 38 (1) of the The Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act 1995 within a period of two weeks from the date of receipt of a copy of this order.15. As the last date fixed for submitting applications is going to expire on 20.6.2012 and no decision is taken by the first respondent regarding upper age limit of the Physically Challenged Persons the respondents may stick on to the last date already fixed in so far as other category of candidates are concerned except the quota reserved for Physically Challenged Persons for the post of Anganwadi Workers and Helpers. After the decision is taken by the Government regarding the grant of upper age relaxation to the Physically Challenged Persons to the above said category atleast two weeks time should be given to them to apply for the said posts based on the upper age relaxation to be granted. It is also ordered that the selection process in respect of all the posts of Anganwadi Workers and Anganwadi Helpers for whom the reservation is now made available to Physically Challenged Persons shall commence only after the last date for submitting the applications by the Physically Challenged Persons is over. No costs. Consequently connected miscellaneous petition is closed.