TMI Blog2013 (7) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... recruitment to this Group 'D' post even on the date when the interview was conducted and completed. However, the Appellant's contention is that he was entitled to relaxation in the maximum age as a consequence of his suffering from a hearing disability to the extent of sixty per cent (60%). The factum of his said affliction is not in dispute, although it has been faintly argued by Mr. Sanyal, Learned Counsel for Respondent No. 1 that the applicable Rules and Regulations contemplate complete loss of audio powers for favourable treatment; and that the forty per cent (40%) disability, indubitably prescribed by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [hereafter referred to as, 'Disabilities Act'] does not come to the succour of the Appellant. Despite the fact that the Appellant had not succeeded in the writ proceedings before the learned Single Judge and thereafter had also failed in his Appeal before the Division Bench of the Calcutta High Court, he appears to have been in the employment of Respondent No. 6 throughout the duration of litigation and remained so on 01.10.2007 when the maintenance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The two sections, i.e., Sections 39 and 40 containing these stipulations are preceded by Section 38, which is germane to the conundrum at hand. It postulates that the appropriate Government and local authority shall formulate schemes for ensuring employment of persons with disabilities and such schemes may provide for the relaxation of upper age limits. Owing to the use of the word 'may' in the section, the question that immediately arises is whether even in the absence of an implemental scheme, can a superior Court issue an inviolable order with regard to the relaxation of upper age limits. Chinnamarkathian v. Ayyavoo (1982) 1 SCC 159 holds that whenever the word 'may' is employed in a statute it confers discretion to do something. It seems to us that in instances where the Legislature uses the words 'shall' and 'may' in close proximity of each other, as in Section 38, there is virtually no room to construe the word 'may' as mandatory. Indeed, the decisions in this context dwell predominantly on the scope of interpreting shall as merely obligatory, whereas the nodus in hand is the obverse. G.P. Singh in his treatise titled, the 'Prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedlessly lead to prolixity. However, despite this legal posit, as will presently be seen, relief will still not be available to the Appellant. 5. Reverting to the position obtaining in the State of West Bengal at the relevant time, our attention has been drawn to the Government Order dated August 26, 1986 which reads as follows: Sub: Recruitment of Assistant teacher, non-teaching staff and Headmaster/Headmistress of non-Government Secondary Schools - Upper-age limit for physically handicapped candidates. The undersigned is directed to say that in terms of this department Memo No. 454-Edn.(S) dated 25.4.83 the upper-age limit for first entry into service of Assistant Teachers and non-teaching staff has been prescribed as 35 years. The age limit is relaxable upto 40 years for experienced and highly qualified candidates and for candidates belonging to Scheduled Caste and Scheduled Tribe, disabled defence personnel and physically handicapped candidates. But in terms of Finance Department Memo No. 105-17-F dated 2.12.80 the upper-age limit for recruitment to State Government Service and posts whether recruited through the Public Service Commission or otherwise, has been prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onging to Scheduled Caste and Scheduled Tribe, Disabled defence personnel and physically handicapped candidates. .... As will be palpably clear, age relaxation was available for the physically handicapped or disabled till 1999 although the relaxation stood reduced from 45 years to 40 years of age. 7. Mr. Sanyal, Learned Counsel for the Respondent No. 1 has emphasized the point that age relaxation was specifically dealt with in both the above Government Orders, and since the age relaxation for the defence personnel and physically handicapped or disabled has notably been deleted from subsequent Government Orders it is facially clear that this advantage was not found by the State of West Bengal to be expedient any longer. It is for this purpose that reliance was placed on behalf of Respondent No. 1 to Memo No. 1736(21) G.A. Dated 1st November 1999 which, inter alia, introduced benefits to Other Backward Classes whilst withdrawing or depriving it to disabled defence personnel and physically handicapped candidates: GUIDELINE FOR RECRUITMENT OF NON-TEACHING STAFF (LIBRARIAN, CLERK, GROUP D STAFF) OF NON GOVT. AIDED SECONDARY SCHOOLS, HIGHER SECONDARY SCHOOLS, GOVT. SPONSORED ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and keeping the ethos, expectations and endeavours of the Disabilities Act as well as the Beijing Declaration in mind as well as at heart, it seems to us that the deletion of age relaxation is facially a retrograde action. However, keeping extant legislation and executive fiats in perspective, since age relaxation is not available post 1st November 1999 to the physically handicapped in the State of West Bengal, regrettably, succour cannot be extended to the Appellant who is indubitably suffering from a disability. Relief for the disadvantaged in our society should be holistic and should be implemented with vigour. Although the issue is not focal before us, we also think that it is most unfortunate that the exercise to identify and earmark posts suitable for being filled up by total reservation for the disabled to the extent of a minimum of three per cent has not been completed thereby reducing the statutory promise to a mere hallucination. We hasten to reiterate that the present case does not fall in the genre of reservation but of relaxation of age. 9. Since the legal regime applicable to amelioration of the persons suffering from disabilities has been argued before us, we ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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