Amita vs Union Of India & Anr on 11 August 2005

Introduction

This case is a writ petition filed by a visually challenged girl in the Supreme Court of India on the grounds of her being rejected on the basis of her disability for the post of probationary officer in the Banking services recruitment board, Chennai.

Facts

An advertisement was released by the Banking services recruitment board Chennai for the appointment of a probationary officer. Seeing the advertisement, Amita, a visually challenged girl applied for the post. The criteria for the post were as follows.

1. The candidate must be a graduate from any recognized university.
2. The candidate should not be less than 21 years of age and not more than 30 years of age.
   These criteria also included any other qualifications mentioned by the government of India.
   The petitioner sent her application along with a demand draft. She mentioned in her application that she is visually impaired so that the board can make the necessary arrangements regarding providing of scribe for the examination. After a few days her application was returned to her and it was mentioned there that ‘As we don’t hire visually challenged candidates for the post of probationary officer, your application is rejected.’ Aggrieved by the decision of the board, Amita filed a writ petition in the supreme court of India under Article 32 of the constitution of India.
   The petitioner was also allowed to amend her petition in which she prayed for the following reliefs.
3. An order of mandamus should be passed in order to allow her to sit for the entrance examination.
4. The board in the instant case has not given her an equal opportunity which is a violation of articles 14, 16, 19, and 21.
5. An order of mandamus should be passed whereby a proper action should be taken keeping in view the rights of persons with a disability, equal opportunities Act 1995.

Arguments on behalf of the petitioner

The learned counsel on behalf of the petitioner argued that the denial of opportunity by the Board only on the ground of her disability is erroneous on the face as the advertisement only mentioned that the candidates applying for the post should be more than 21 and less than 30 years of age and should be a graduate. The petitioner had fulfilled these criteria. The order of the Board has violated article 14, 16, 19, and 21 of the constitution.

Arguments on behalf of the respondent

The learned counsel on behalf of the respondent argued that the post of a probationary officer is not earmarked for the visually challenged so the rejection of application of the writ petitioner is valid.

Judgment

It was held that the order of the Board cannot be sustained as the writ petitioner has fulfilled all the criteria mentioned in the advertisement, hence she cannot be rejected only on the grounds of her visual impairment. It was also found that the petitioner also applied for the same post in Bangalore and she was given the admit card for the entrance test even after mentioning that she is visually impaired. This clearly proves that visual impairment cannot be a reason for the rejection of the application.

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Neetu Kukar Vs Union Of India And Others

FACTS:

In this case, a case was filed in the High Court of Punjab and Haryana by Neetu Kukar- The petitioner against Dashmesh Public school in Faridkot. The concern of the petitioner was that the children of the school from 6^th standard were bifurcated in different sections on the basis of their performance and marks in the examinations, this was an issue which was raised by several parents as they were against this process. This bifurcation led to all the high-scorers being placed in one class and the others were put in different classes. This upset a lot of students and the petitioner’s daughter was very upset because she could not make it to the top performing section. She took the extreme step of consuming hand wash liquid as an attempt to end her life. The petitioner along with several other parents claimed that this discrimination led to mental trauma among students who couldn’t make it to the top section of their division and the parents were finding it hard to motivate them.

ISSUE:

Whether it is discriminative and violate of the child’s rights to bifurcate students of the class from 6^th standard on the basis of their performance and marks? And should action be taken against the school for practising this discrimination.

PETITIONER CONTENTION:

The petitioner contended that, it is violative of the provisions of Right of Children to Free and Compulsory Education Act, 2009 to differentiate and discriminate the students on the basis of their marks and that this process should be revoked immediately. Further, the petitioner said that this practice of bifurcating students into sections based on their marks and performance is a discriminatory practice and it is violative of Article 14 under the Constitution of India. It affects the mental health of the students and makes them think that they are not good enough when they fail to make it to the top performing sections.

RESPONDENT CONTENTION:

The respondent contended that, none of the claims made by the petitioner are true and the school has done nothing that is discriminative and violative of article 14 of the constitution of India and also does not break the provisions of right of children to free and compulsory education act,2009. Further, the respondent said that the petitioner has made wrong and false allegations against the school as her daughter could not make it to the top section and justified the reason behind bifurcating the sections that the top section has been constituted on the basis of performance and all other sections have students having different merit. A top Section has been created in the interest of the students so that the School can get better results.

JUDGEMENT:

The bench of Justice Sudhir Mittal gave the judgment that Classification of children into sections on the basis of their marks and performance has the tendency of creating a feeling of inferiority amongst children securing less marks and they might face mental trauma thus, the practice is a violation of the fundamental right of elementary education. Further, the court passed the order that this process of bifurcating students should be revoked and stopped immediately for the benefit of the students.

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Ng. Komon Vs State Of Manipur

FACTS:

The facts of the case are the petitioner who is the chairman of a village called Komlathabai which was separated from the village of Liwachangning. There was a government school located in Komlathabai which was a part of Liwachangning village. The building of the school was broken due to a heavy storm in the monsoon season. So the petitioner approached the concerned authority who is responsible for constructing the building of the school but the concerned authority refused to construct the building as said that they are going to shift the school from Komlathabai to Liwachangning village. So the petitioner approached the court of law for quashing the said order of the chief executive officer.

ISSUES:

Whether shifting of school from Komlathabai to Liwachangning village will affect the fundamental right of Article 21A of the Indian Constitution.

PETITIONER CONTENTION:

The petitioner contended that shifting of the government school from the village of Komalathabai to the village Liwachangning will affect the right to education which is a fundamental right of every child under Article 21A of the Indian Constitution. And further contended that the village does not have a government school in case the school is shifted the right of education will be deprived of the children in the village.

RESPONDENT CONTENTION:

The respondent contended that the village in Komalathabai has many private schools so children will not be denied his right to education. And said that they have the authority to shift the school from one place to another according to the need of schools.

OBSERVATION:

The single judge passed an order that it was up to the executive authority where the school to be located based on the interest of the school-going children. The petitioner approached the high court and the court held that shifting of school to other villages would deprive school going children of the Komlathabi village of age 6 to 14 years of the fundamental rights to have free and compulsory education in the government school. This will be a violation of the right to education under Article 21-A of the constitution.

JUDGMENT:    

The high court held that shifting of the school will be a violative of right to education according to Article 21-A of Indian Constitution and the court directed the applicant to approach concern authority of the government of Manipur by filing representation for providing free and compulsory education to the children of Komalathabai village

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Nilabati Behera v. State of Orissa

Facts:

A letter was sent by the petitioner Nilabati Behera to the Supreme Court. This letter was treated as a writ petition under Article 32 for deciding the claim of compensation due to the consequential death of the Petitioner’s son Suman Behera who had been taken into police custody. The petitioner’s son’s age was about 22 years who was taken into police custody for an investigation regarding an offence of theft and was detained at the Police outpost. He was found dead on a railway track near Police outpost the next day and was discovered that he wasn’t released from custody. The multiple wounds on his body ruled out the fact it was a natural death. The medical report which was prepared by the doctor who conducted the post-mortem also contained the medical evidence which consisted of his testimony. This excluded the possibility of all injuries caused to the petitioner’s son due to a train accident which indicated that these injuries resulted from merciless beatings given to him by the police. 

Issue:

• Whether the Supreme court or High Court can exercise their jurisdiction under Art.32 and Art.226 to pass an order for granting monetary compensation violating the fundamental rights?

Petitioner’s Contention: 

The Counsel for petitioner contended that the death of petitioner’s son was custodial, depriving the right to life guaranteed under Article 21 of the Constitution. The stand taken by the Solicitor general was in contrary to the findings of the District judge and it was stated by the petitioner that only on valid grounds, the decision of a District court judge can be rejected.

Respondent’s Argument: 

A defence was taken by the Solicitor general that the petitioner’s son had managed to escape police custody and the police wasn’t able to apprehend him despite continuous searching and was run over by a train, thus denying the custodial death allegations.

Judgment:

The Supreme court held that the award of compensation can be proceeded under Article 32 and Art 226 of the Constitution and is a remedy available under public law. This is based on a strict liability on the state for fundamental right contravention. This principle of sovereign immunity cannot be applied here in cases of violation of fundamental rights enshrined under Part III even though it may be used as a defence in private law issue based on tort. Further a differentiation was provided by the court between these two laws in nature of awarding compensation. Hence, the court observed that the aim of public law is to ensure that the citizens live under a legal system which protects people’s rights and nurture it through public power civilization. It was further observed by the court that in situations where the only remedy possible is compensation, it cannot be substituted with any other form, as this a claim for compensation on deprivation of fundamental rights and not a mere claim for damage under tort law. 

The Supreme Court ordered the State to pay a compensation sum of Rs.1,50,000 to the petitioner and a sum of Rs.10,000 to the Supreme Court Legal Aid Committee Board.

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