LAND MARK JUDGEMENT ON DISABLED PEOPLE's RECRUITMENT & PROMOTION MATTERS @ DELHI HIGH COURT
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kodakkal
Jan 11, 2009, 10:38:23 AM1/11/09
to DISABILITY & THEIR MOVEMENT
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IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) NO. 15828/2006
19.12.2008
Reserved on : 12th December, 2008
Date of decision: 19th December, 2008
NATIONAL FEDERATION OF THE BLIND ... Petitioner
Through: Mr. S.K. Rungta with
Ms. Pratiti Rungta, Advocates
Versus
UNION OF INDIA and ORS. ... Respondents
Through: Mr. P.P. Malhotra, ASG with
Mr. Dalip Mehra, Mr. Rajiv Ranjan Mishra, Advocates for UOI.
Mr. Ashwani Bhardwaj, Advocate for respondents 4 and 5
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE S. MURALIDHAR
1.Whether reporters of the local newspapers be
allowed to see the judgment? Yes
2.To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in the Digest ? Yes
AJIT PRAKASH SHAH, C.J.
National Federation of the Blind, an apex body working for the
protection of the rights of the visually challenged, has filed this
petition in
public interest to highlight the discrimination of the blind and low
vision
persons by virtually excluding them from the process of recruitment to
government posts in violation of the scheme of reservation contained
in section
33 of the Persons with Disabilities (Equal Opportunities, Protection
of Rights
and Full Participation) Act, 1995 (?Disabilities Act? for short). The
grievance
of the petitioner is that the respondents have failed to provide
reservation to
the blind and low vision candidates in accordance with section 33 of
the
Disabilities Act in all its recruitments right from 1996 till date.
The
Disabilities Act, which was brought into force on 7.2.1996, mandates
the
Government to make reservation in all groups of posts to the extent of
3% at
least of which 1% each shall be reserved for persons suffering from
blindness
and low vision, persons suffering from hearing impairment and persons
suffering
from locomotor disability or cerebral palsy. It is obligatory upon
every
appropriate Government to identify the posts for various categories of
disabled,
which may be earmarked for them. According to the petitioner several
advertisements, which have been issued in the Employment News from
1996 to 2006,
do not contain any provision for reservation for the blind and low
vision. Not
only the respondents have failed to give one per cent reservation to
blind and
low vision in terms of section 33 of the Act but also expressly
excluded blind
persons from applying and from being considered for appointment
against the
posts sought to be filled up by these advertisements. The public
sector
undertakings under the Central Government have also failed to comply
with the
provisions of section 33 of the Disabilities Act. This according to
the
petitioner amounts to clear violation of the fundamental right
guaranteed to the
blind and low vision under Article 16(1) of the Constitution. The
petitioner has
drawn attention to OMs dated 29.12.2005 and 26.04.2006, issued by the
Central
Government for implementation of the scheme for reservation to the
disabled as
contained in section 33 of the Disabilities Act. A reference is also
made to a
letter dated 13.1.2006 of the Secretary, Ministry of Social Justice
and
Empowerment conveying the decision of the Government to various
departments for
clearing up backlog of vacancies under section 33 in a time bound
manner. The
petitioner contends that in spite of the OMs and the letter, various
departments
of the Government and public sector undertakings did not even workout
the
vacancies which ought to have been reserved but have not been reserved
and have
not been filled by them. The petitioner has prayed for a mandamus
directing the
respondents to work out the vacancies which ought to have been
reserved for each
of the categories of persons with disabilities separately to the
extent of one
per cent each in a time bound manner in terms of OMs dated 29.12.2005
and
26.4.2006 and to undertake a special drive for filling up such
vacancies to be
completed in a time bound manner. The petitioner has also prayed for a
direction to the respondents to frame rules for ensuring compliance of
the
provisions of section 33 of the Disabilities Act and for further
ensuring that
persons suffering from blindness and low vision are allowed to appear
in all
recruitments / selection tests and to monitor the implementation of
the
reservation scheme for persons with disabilities in the same manner as
is done
in the case of SC, ST and OBC.
2. A notice of the petition was issued to the respondents and the
respondent
No.1 ? Union of India has appeared and a counter affidavit has been
filed on its
behalf. Since the petition raises some important questions relating to
section
33 of the Disabilities Act and other related provisions of the said
Act, notice
was also issued to the Chief Commissioner for Persons with
Disabilities, who has
filed his written response to the various contentions raised by the
petitioner
in the writ petition.
3.Before adverting to the issues raised in the petition, we may
briefly refer to
the legislative history of the Disabilities Act. With a view to
realising the
objective that people with disabilities have the same rights, hopes
and
aspirations as everyone else, and they are to be provided with equal
opportunities and rather better incentives for their rehabilitation in
the
society, a meeting was held in Beijing on 1st to 5th December, 1992
called the
?Meet to Launch the Asian and Pacific Decade of Disabled Persons?. A
proclamation was adopted by the Asian and Pacific countries to ensure ?
full
participation and equality of people with disabilities in the Asian
and the
Pacific regions?. India was a signatory to the said proclamation and
with a
view to implementing the same, the Disabilities Act was enacted and it
came into
force on 7.2.1996.
4.The Statement of Objects and Reasons to the Disabilities Act, which
was
appended to the Bill, before it was enacted, reads as under:
?STATEMENT OF OBJECTS AND REASONS
The meeting to launch the Asian and Pacific Decade of the Disabled
Persons 1993-2002 convened by the Economic and Social Commission for
Asian and
Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted
the
Proclamation on the Full Participation and Equality of People with
Disabilities
in the Asia and the Pacific region. India is a signatory to the said
proclamation and it is necessary to enact a suitable legislation 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-a-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 programmes
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.
2. Accordingly, it is proposed to provide inter alia for the
constitution
of Co-ordination Committees and Executive Committees at the Central
and State
levels to carry out the various functions assigned to them. Within the
limits
of their economic capacity and development the appropriate Governments
and the
local authorities will have to undertake various measures for the
prevention and
early detection of disabilities, creation of barrier-free environment,
provision
for rehabilitation services, etc. The Bill also provides for
education,
employment and vocational training, reservation in identified posts,
research
and manpower development, establishment of homes for persons with
severe
disabilities, etc. For effective implementation of the provision of
the Bill,
appointment of the Chief Commissioner for persons with disabilities at
the
Central level and Commissioners for persons with disabilities at the
State level
clothed with powers to monitor the funds disbursed by the Central and
State
Governments and also to take steps to safeguard the rights of the
persons with
disabilities is also envisaged.
3. The Bill seeks to achieve the above objects.?
5.The employment rights of persons with disabilities covered by
Chapter VI of
the Disabilities Act containing Sections 32 to 41 (except Section 39
which
relates to education) comprise the most empowering provisions of the
Disabilities Act as they yield the most tangible and substantial
rights to
persons with disabilities. Section 32 of the Disabilities Act provides
for
identification of posts, section 33 provides for reservation and
section 36
thereof provides that in case a vacancy is not filled up due to non-
availability
of a suitable person with disability, the vacancy is to be carried
forward in
the succeeding recruitment year. The provisions are reproduced below:
32. Identification of posts which can be reserved for persons with
disabilities:- Appropriate Governments shall--
(a) Identify posts, in the establishments, which can be reserved for
the persons
with disability;
(b) At periodical intervals not exceeding three years, review the list
of posts
identified and up-date the list taking into consideration the
developments in
technology.
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) loco motor 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.
36. Vacancies not filled up to be carried forward : Where in any
recruitment
year any vacancy under section 33, cannot be filled up due to non-
availability
of a suitable person with disability or, for any other sufficient
reason, such
vacancy shall be carried forward in the succeeding recruitment year
and if ;r
the succeeding recruitment year also suitable person with disability
is not
available, it may first be filled by interchange among the three
categories and
only when there is no person with disability available for the post in
that
year, the employer shall fill up the vacancy by appointment of a
person, other
than a person with disability:
Provided that if the nature of vacancies in an establishment is such
that a
given category of person cannot be employed, the vacancies may be
interchanged
among the three categories with the prior approval of the appropriate
Government.?
6.It is apparent from a reading of the aforesaid provisions that the
appropriate
Government is statutorily enjoined to appoint in every establishment
such
percentage of vacancies in the posts identified for each disability
not less
than 3% for persons with disabilities, of which 1% each shall be
reserved for
three categories mentioned in section 33 of the Act, namely, blindness
and low
vision, hearing impairment and locomotor disability or cerebral palsy.
The term
?establishment? has been defined in section 2(k) of the Act to mean ?a
corporation established by or under a Central, Provincial or State
Act, or an
authority or a body owned or controlled or aided by the Government or
local
authority or a Government company as defined in Section 617 of the
Companies
Act, 1956 (1 of 1956) and includes department of a Government?.
Therefore, each
department of the Government has to be treated as an 'establishment'
and the
Government is bound to reserve not less than 3% vacancies in an
establishment in
posts identified in accordance with section 33 of the Act. The posts
have been
identified for all the categories of persons with disabilities
including persons
suffering from blindness and low vision vide Notification dated
31.05.2001 which
has been further updated by Notification dated 1.1.2006.
7.At this stage, we may refer to the OM dated 29.12.2005 which was
issued with a
view to consolidate the existing instructions with a view to bringing
them in
line with the Disabilities Act and clarifying certain issues including
procedural matters. The relevant clauses of the OM read as follows:
?2. QUANTUM OF RESERVATION
(i)Three percent of the vacancies, in case of direct recruitment to
Group A, B,
C and D posts shall be reserved for persons with disabilities of which
one per
cent each shall be reserved for persons suffering from (i) blindness
or low
vision, (ii) hearing impairment and (iii) locomotor disability or
cerebral palsy
in the posts identified for each disability;
(ii)Three percent of the vacancies in case of promotion to Group D,
and Group C
posts in which the element of direct recruitment, if any, does not
exceed 75%,
shall be reserved for persons with disabilities of which one per cent
each shall
be reserved for persons suffering from (i) blindness or low vision,
(ii) hearing
impairment and (iii) locomotor disability or cerebral palsy in the
posts
identified for each disability.
13. COMPUTATION OF RESERVATION: Reservation for persons with
disabilities in
case of Group C and Group D posts shall be computed on the basis of
total number
of vacancies occurring in all Group C or Group D posts, as the case
may be, in
the establishment, although the recruitment of the persons with
disabilities
would only be in the posts identified suitable for them. The number of
vacancies to be reserved for the persons with disabilities in case of
direct
recruitment to Group C posts in an establishment shall be computed by
taking
into account the total number of vacancies arising in Group C posts
for being
filled by direct recruitment in a recruitment year both in the
identified and
non-identified posts under the establishment. The same procedure shall
apply for
Group D posts. Since reservation is limited to identified posts only
and number
of vacancies reserved is computed on the basis of total vacancies (in
identified
posts as well as unidentified posts), it is possible that number of
persons
appointed by reservation in an identified posts may exceed 3 percent.
14. Reservation for persons with disabilities in Group A posts shall
be computed
on the basis of vacancies occurring in direct recruitment quota in all
the
identified Group A pots in the establishment. The same method of
computation
applies for Group B posts.
15. EFFECTING RESERVATION ?MAINTENANCE OF ROSTERS:
(a) all establishment s shall maintain separate 100 point reservation
roster
registers in the format given in Annexure II for determining/effecting
reservation for the disabled ? one each for Group A posts filled by
direct
recruitment, Group B posts filled by direct recruitment, Group C posts
filled by
direct recruitment, Group C posts filled by promotion, Group D posts
filled by
direct recruitment and Group D posts filled by promotion.
(b) Each register shall have cycles of 100 points and each cycle of
100 points
shall be divided into three blocks, comprising the following points :
1st Block ? point No.1 to point NO.33
2nd Block ? point No.34 to point NO.66
3rd Block ? point No.67 to point No.100
(c) Points 1, 34, and 67 of the roster shall be earmarked reserved for
persons
with disabilities ? one point for each of the three categories of
disabilities.
The head of the establishment shall decide the categories of
disabilities for
which the points 1,34 and 67 will be reserved keeping in view all
relevant
facts.
(d) All the vacancies in Group C posts falling in direct recruitment
quota
arising in the establishment shall be entered in the relevant roster
register.
If the post falling at point NO.1 is not identified for the disabled
or the
head of the establishment considered it desirable not fill it up by a
disabled
person or it is not possible to fill up that post by the disabled for
any other
person, one of the vacancies falling at any of the points from 2 to 33
shall be
treated as reserved for the disabled and filled as such. Likewise a
vacancy
falling at any of the points from 34 to 66 or from 67 to 100 shall be
filled by
the disabled. The purpose of keeping points 1,34 and 67 as reserved is
to fill
up the first available suitable vacancy from 1 to 33, first available
suitable
vacancy from 34 to 66 and first available suitable vacancy from 67 to
100 person
with disabilities.
(e) There is a possibility that none of the vacancies from 1 to 33 is
suitable
for any category of the disabled. In that case two vacancies from 34
to 66
shall be filled as reserved for persons with disabilities. If the
vacancies
from 34 to 66 are also not suitable for any category, three vacancies
shall be
filled as reserved from the third block containing points from 67 to
100. This
means that if no vacancy can be reserved in a particular block, it
shall be
carried into the next block.
(f) After all the 100 points of the roster are covered, a fresh cycle
of 100
points shall start .
(g) If the number of vacancies in a year is such as to cover only one
block or
two, discretion as to which category of the disabled should be
accommodated
first shall vest in the head of the establishment, who shall decide on
the basis
of the nature of the post, the level of representation of the specific
disabled
category in the concerned grade/post etc.
(h) A separate roster shall be maintained for Group C posts filled by
promotion
and procedure as explained above shall be followed for giving
reservation to
persons with disabilities. Like wise two separate rosters shall be
maintained
for Group A and Group B posts, all vacancies of direct recruitment
arising in
identified posts shall be entered and reservation shall be effected
the same way
as explained above.
(i) Reservation in group A and group B posts is determined on the
basis of
vacancies in the identified posts only. Separate rosters for Group A
posts and
Group B posts in the establishment shall be maintained. In the rosters
maintained for Group A and Group B posts, all vacancies of direct
recruitment
arising in identified posts shall be entered and reservation shall be
effected
the same way as explained above.
16. INTER SE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF
DIRECT
RECRUITMENT
(a) Reservation for each of the three categories of persons with
disabilities
shall be made separately. But if the nature of vacancies in an
establishment is
such that a person of a specific category of disability cannot be
employed, the
vacancies may be interchanged among the three categories with the
approval of
the Ministry of Social Justice and Empowerment and reservation may be
determined
and vacancies filled accordingly.
(b) If any vacancy reserved for any category of disability cannot be
filled due
to non-availability of a suitable person with that disability or, for
any other
sufficient reason, such vacancy shall not be filled and shall be
carried forward
as a 'backlog reserved vacancy' to the subsequent recruitment year.
(c) In the subsequent recruitment year the 'backlog reserved vacancy'
shall be
treated as reserved for the category of disability for which it was
kept
reserved in the initial year of recruitment. However, if a suitable
person with
that disability is not available, it may be filled by interchange
among the
three categories of disabilities. In case no suitable person with
disability is
available for filling up the post in the subsequent year also, the
employer may
fill up the vacancy by appointment of a person other than a person
with
disability. If the vacancy is filled by a person with disability of
the category
for which it was reserved or by a person of other category of
disability by
inter se exchange in the subsequent recruitment year, it will be
treated to have
been filled by reservation. But if the vacancy is filled by a person
other than
a person with disability in the subsequent recruitment year,
reservation shall
be carried forward for a further period upto two recruitment years
whereafter
the reservation shall lapse. In these two subsequent years, if
situation so
arises, the procedure for filling up the reserved vacancy shall be the
same as
followed in the first subsequent recruitment year.
19. HORIZONTALITY OF RESERVATION FOR PERSONS WITH DISABILITIES:
Reservation for
backward classes of citizens (SCs, STs and OBCs) is called vertical
reservation
and the reservation for categories such as persons with disabilities
and ex-
servicemen is called horizontal reservation. Horizontal reservation
cuts across
vertical reservation (in what is called interlocking reservation) and
person
selected against the quota for persons with disabilities have to be
placed in
the appropriate category viz. SC/ST/OBC/General candidates depending
upon the
category to which they belong in the roster meant for reservation of
SCs/STs/OBCs. To illustrate, if in a given year there are two
vacancies reserved
for the person with disabilities and out of two persons with
disabilities
appointed, one belongs to a Scheduled Caste and the other to general
category
then the disabled SC candidate shall be adjusted against the SC point
in the
reservation roster and the general candidate against unreserved point
in the
relevant reservation roster. In case none of the vacancies falls on
point
reserved for the SCs, the disabled candidate belonging to SC shall be
adjusted
in future against the next available vacancy reserved for SCs.
20. Since the persons with disabilities have to be placed in the
appropriate
category viz., SC/ST/OBC/General in the roster meant for reservation
of
SCs/STs/OBCs, the application form for the post should require the
candidates
applying under the quota reserved for persons with disabilities to
indicate
whether they belong to SC/ST/OBC or General category.?
8.Paragraphs 21 and 22 of the OM respectively provides for relaxation
in age
limit and relaxation for standard suitability.
9.As the directions contained in OM dated 29.12.2005 were not
implemented as a
result of which, representations were made by the petitioner to
Central
Government complaining that its departments, establishments and public
sector
undertakings have not even worked out the vacancies which ought to
have been
reserved. Consequently another OM dated 26.04.2006 came to be issued
directing
that all establishments, departments and public sector undertakings
should
maintain reservation rosters registers beginning from 1996 by
designating points
numbers 1, 34 and 67 for persons with disabilities with an object to
grant one
vacancy each to persons suffering from blindness and low vision,
persons
suffering from hearing impairment and persons suffering from locomotor
disability or cerebral palsy respectively. In the same OM, while
admitting that
the reservation policy has not been implemented in the right earnest,
a clear
direction was given to all establishments as follows:
?In order to achieve this objective, all the establishments should
prepare the
reservation roster registers as provided in this Department's O.M. No.
36035/3/2004-Estt. (Res) dated 29.12.2005 starting from the year 1996
and
reservation for persons with disabilities be earmarked as per
instructions
contained in that OM. If some or all the vacancies so earmarked had
not been
filled by reservation and were filled by able bodied persons either
for the
reason that points of reservation had not been earmarked properly at
the
appropriate time or persons with disabilities did not become
available, such
unutilized reservation may be treated as having been carried forward
to the
first recruitment year occurring after issue of this O.M. And be
filled as
such. If it is not possible to fill up such reserved vacancies during
the said
recruitment year, reservation would be carried forward for further two
years,
whereafter it may be treated as lapsed.?
10.It appears that even after issuance of OMs dated 29.12.2005 and
26.4.2006
only a handful of departments of Union of India claimed to have
maintained
roster but even those who made this claim have not made the rosters
properly nor
have effectively implemented 3% reservation in favour of the disabled.
In fact,
the Central Government has been compelled to issue a fresh OM dated
10.12.2008
requiring all the ministries / departments to take action to identify
unfilled
vacancies due to non-implementation of the provisions of section 33 of
the
Disabilities Act and to treat these vacancies as backlog vacancies for
the
current recruitment year.
11.Mr.Rungta, learned counsel appearing for the petitioner,
strenuously
contended that neither Department of Personnel and Training and Public
Grievances nor Ministry of Social Justice and Empowerment nor office
of the
Chief Commissioner for Persons with Disabilities is monitoring the
implementation the scheme of reservation for persons with
disabilities. As a
result various departments of the Government of India as well as the
public
sector undertakings have been openly flouting the policy of
reservation
contained in section 33 of the Disabilities Act for over 12 years now.
Mr.Rungta also took exception to some of the provisions of the OM
dated
29.12.2005. According to him the reservation under section 33 is
required to be
computed on the basis of the total cadre strength of the establishment
and not
on the basis of the vacancies in posts identified for the purpose of
appointment
of persons from the disabled categories. He submitted that para 13 of
OM dated
29.12.2005 clearly provides that 3% reservation has to be worked out
in Groups C
and D posts on the basis of vacancies in identified posts as well as
unidentified posts in an establishment whereas paragraph 14 provides
that
reservation in Groups A and B shall be computed on the basis of the
vacancies
occurring only in the identified posts in the establishment.
Therefore,
according to him para 14 is clearly inconsistent with the mandate of
section 33.
He prayed that the respondents should be directed to work out the
backlog of
vacancies by obtaining necessary information from respective
departments as well
as public sector undertakings, government companies etc. and to take a
centralized special recruitment drive to fill up the backlog of
vacancies for
the blind and low vision as well as other categories of disabled in
accordance
with section 33 of the Disabilities Act.
12.In reply, learned Additional Solicitor General fairly conceded that
there had
been laxity on the part of various ministries / departments and public
sector
undertakings in implementation of the scheme of reservation under
section 33.
He submitted that the Union of India is taking all necessary steps to
complete
the process of reservation and for that purpose OM dated 10.12.2008
has already
been issued. Learned Additional Solicitor General, however, opposed
the plea of
Mr.Rungta that reservation under section 33 is required to be computed
on the
basis of the total strength of the cadre in an establishment.
According to him
the Act provides 3% reservation only in the vacancies in posts
identified for
the disabled categories and not on the total strength of the cadre.
The
Government, however, keeping in mind the fact that reservation in
Groups C and D
posts was being calculated on the basis of vacancies in identified as
well as
unidentified posts prior to the Disabilities Act came into force and
the
provisions of section 72 of the Disabilities Act continued to compute
reservation the same way in Groups A and B on the basis of vacancies
in
identified as well as unidentified posts. He submitted that the
reservation
under section 33 is a horizontal reservation and not vertical
reservation. He
referred to the decision of the Supreme Court in Indra Sawhney and
others v.
Union of India and others 1992 Supp (3) SCC 217 wherein the Supreme
Court has
explained the concept of horizontal reservation. He submitted that
paragraph 15
of the OM dated 29.12.2005 provides for a vacancy based roster and not
post
based roster. According to him the purpose of providing for vacancy-
based
roster was to give more representation to disabled categories which
would not be
possible in the case of post based roster.
13.At the outset we may state that the Government has utterly failed
in ensuring
proper implementation of the statutory reservation under section 33
and
protecting the rights of the persons with disabilities and in
particular those
suffering from blindness or low vision. Admittedly, the persons
suffering from
blindness and low vision have not only been deprived of the benefit of
reservation but they have been excluded from consideration in the
recruitments
held in the past. This is clearly brought out from various
advertisements
attached along with the petition particularly Annexure G and K at
pages 103-138
and 168-173. It appears that prior to 2005 there were no written
instructions
laying down the manner in which implementation of the scheme of
reservation for
disabled has to be ensured. Even after issuance of OM dated 29.12.2005
and OM
dated 26.4.2006 reservation roster has not been properly maintained
nor the
policy of reservation has been effectively implemented for different
categories
of disabled as envisaged by section 33. It is distressing to note that
in spite
of lapse of 12 years after the Act came into force, the scheme of
reservation
has virtually remained on paper and there is no effective
implementation of the
reservation policy due to apathy of the concerned ministries /
departments
towards the disabled. We hasten to add that the learned Additional
Solicitor
General has taken a very positive approach of the matter and has
assured the
Court that the Government will do its best for the full implementation
of the
reservation scheme for the disabled. He submitted that the Court may
issue
appropriate directions for the strict implementation of the
reservation policy
for the disabled.
14.The reservation for disabled falls under Article 16(1) of the
Constitution of
India and is a horizontal reservation. In Indra Sawhney and others v.
Union of
India and others (supra) the principle of horizontal reservation was
explained
thus: (SCC pp.?735-36, para 812)
?[A]ll reservations are not of the same nature. There are two types of
reservations, which may, for the sake of convenience, be referred to
as
?vertical reservations? and ?horizontal reservations?. The
reservations in
favour of Scheduled Castes, Scheduled Tribes and Other Backward
Classes [under
Article 16(4)] may be called vertical reservations whereas
reservations in
favour of physically handicapped [under Clause (1) of Article 16] can
be
referred to as horizontal reservations. Horizontal reservations cut
across the
vertical reservations?what is called interlocking reservations. To be
more
precise, suppose 3% of the vacancies are reserved in favour of
physically
handicapped persons; this would be a reservation relatable to Clause
(1) of
Article 16. The persons selected against this quota will be placed in
the
appropriate category; if he belongs to SC category he will be placed
in that
quota by making necessary adjustments; similarly, if he belongs to
open
competition (OC) category, he will be placed in that category by
making
necessary adjustments. Even after providing for these horizontal
reservations,
the percentage of reservations in favour of Backward Class of citizens
remains?and should remain?the same.?
15.Coming to the question of manner of computation of reservation
under section
33, after giving anxious thought to the submissions made at the Bar we
are not
inclined to accept the submissions of the learned Additional Solicitor
General
that the 3% reservation has to be computed only on the basis of
vacancies in
identified posts in the cadre. In the first place, section 33 provides
for 3%
reservation in posts in an establishment and not just in the vacancies
in posts
identified for disabled. Heading of section 33 is reservation of posts
and it
mandates the Government to appoint in every establishment ?such
percentage of
vacancies not less than 3% of which 1% each has to be reserved for
persons
suffering from blindness or low vision, hearing impairment and
locomotor
disability or cerebral palsy in the posts identified for each
disability?. In
our opinion the plain meaning of section 33 is that while 3%
reservation has to
be computed on the basis of the total strength in an establishment,
such
appointment has to be made in the posts identified for each
disability. Section
32 of the Act requires the appropriate Government to identify posts in
the
establishment which can be reserved for the persons with disability.
In our
opinion the words ?every appropriate Government shall appoint in every
establishment such percentage of vacancies not less three per cent ?.
in the
posts identified ?.? clearly indicates the intention of the
legislature to
provide at least 3% of reservation on the basis of the total number of
posts in
an establishment. The fact that persons belonging to disabled
categories are to
be appointed in the posts identified for such disabilities does not
mean that 3%
reservation is to be computed only on the basis of identified posts.
The
computation has to be with reference to the cadre strength.
16.The Disabilities Act was enacted for protection of the rights of
the disabled
in various spheres like education, training, employment and to remove
any
discrimination against them in the sharing of development benefits
vis-?-vis
non-disabled persons. In the light of the legislative aim it is
necessary to
give purposive interpretation to section 33 with a view to achieve the
legislative intendment of attaining equalization of opportunities for
persons
with disabilities. The fact that the vacancy-based roster is to be
maintained
does not mean that 3% reservation has to be computed only on the basis
of
vacancy. The difference between the posts and vacancies has been
succinctly
pointed out in the Supreme Court decision in the case of R.K.
Sabharwal and ors.
v. State of Punjab and ors. ?AIR 1995 SC 1371 wherein it was held that
the word
?post? means an appointment, job, office or employment, a position to
which a
person is appointed. ?'`Vacancy'` means an unoccupied post or office.
The plain
meaning of the two ex-pressions make it clear that there must be a
'post' in
existence to enable the 'vacancy' to occur. The cadre-strength is
always
measured by the number of posts comprising the cadre. ?Right to be
considered
for appointment can only be claimed in respect of a post in a cadre. ?
As a
consequence the percentage of reservation has to be worked out in
relation to
the number of posts which form the cadre-strength. The concept of
'vacancy' has
no relevance in operating the percentage of reservation. Therefore, in
our
opinion, 3% reservation for disabled has to be computed on the basis
of total
strength of the cadre i.e. both identified as well as unidentified
posts. We
are in agreement with Mr.Rungta that the paragraph 14 of the OM dated
29.12.2005
is inconsistent with the provisions of section 33 of the Disabilities
Act.
17.In our opinion, in order to ensure proper implementation of
reservation
policy for the disabled and to protect their rights it is necessary to
issue the
following directions:
i.We direct the respondents to constitute a committee consisting of
the Chief
Commissioner for disabilities (Chairman), Joint Secretary, Department
of
Personnel and Training, Joint Secretary, Ministry of Social Justice
and
Empowerment, Joint Secretary, Department of Public enterprises, and
Secretary,
Staff Selection Commission to do the following acts in terms of this
order:
(a) To solicit information with regard to recruitments made by
departments/public sector undertakings/government companies from the
date when
the Disabilities Act came into force in 1996 and to work out backlog
of
vacancies for the disabled on the total cadre strength in different
establishments within one month from the date of this order.
(b) To undertake special recruitment drive by organising centralised
recruitment
against backlog so worked out so as to fill up the vacancies by
utilising at
least 50% of the vacancies available with the respective
establishments for this
purpose only.
(c ) To organise further special recruitment drive as required so as
to fill up
the remaining backlog of vacancies by 31st December, 2010.
ii.Respondent No.1 will issue an appropriate order modifying the OM
dated
29.12.2005 and the subsequent OMs consistent with this Courts order.
iii.The respondent No.1 shall issue instructions to all the
departments /public
sector undertaking/government companies declaring that the non
observance of the
scheme of reservation for persons with disabilities should be
considered as an
act of non-obedience and the Nodal Officer in departments/Public
Sector
undertakings/government companies responsible for the proper strict
implementation of reservation for person with disabilities to be
departmentally
proceeded against for his default.
iv.The respondent No.1 is further directed to issue instructions to
all the
departments/public sector undertakings/government companies as well as
recruiting agencies not to undertake recruitment for any department/
public
sector undertakings/government company unless the departmental/public
sector
undertaking/ government company makes provisions for reservation for
persons
with disabilities in terms of the order of this Court and a clearance
is granted
by the Committee headed by the Chief Commissioner for Disabilities.
v.The Committee headed by the Chief Commissioner for Disabilities
shall submit a
status report on implementation of the above directions of this Court
within
three months from the date of this order.
18.List on 6th April, 2009.
CHIEF JUSTICE
S. MURALIDHAR, J.
DECEMBER19, 2008
pk/nm/v
http://courtnic.nic.in/dhcorder/dhcqrydisp_j.asp?pn=4998&yr=2008
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) NO. 15828/2006
19.12.2008
Reserved on : 12th December, 2008
Date of decision: 19th December, 2008
NATIONAL FEDERATION OF THE BLIND ... Petitioner
Through: Mr. S.K. Rungta with
Ms. Pratiti Rungta, Advocates
Versus
UNION OF INDIA and ORS. ... Respondents
Through: Mr. P.P. Malhotra, ASG with
Mr. Dalip Mehra, Mr. Rajiv Ranjan Mishra, Advocates for UOI.
Mr. Ashwani Bhardwaj, Advocate for respondents 4 and 5
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE S. MURALIDHAR
1.Whether reporters of the local newspapers be
allowed to see the judgment? Yes
2.To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in the Digest ? Yes
AJIT PRAKASH SHAH, C.J.
National Federation of the Blind, an apex body working for the
protection of the rights of the visually challenged, has filed this
petition in
public interest to highlight the discrimination of the blind and low
vision
persons by virtually excluding them from the process of recruitment to
government posts in violation of the scheme of reservation contained
in section
33 of the Persons with Disabilities (Equal Opportunities, Protection
of Rights
and Full Participation) Act, 1995 (?Disabilities Act? for short). The
grievance
of the petitioner is that the respondents have failed to provide
reservation to
the blind and low vision candidates in accordance with section 33 of
the
Disabilities Act in all its recruitments right from 1996 till date.
The
Disabilities Act, which was brought into force on 7.2.1996, mandates
the
Government to make reservation in all groups of posts to the extent of
3% at
least of which 1% each shall be reserved for persons suffering from
blindness
and low vision, persons suffering from hearing impairment and persons
suffering
from locomotor disability or cerebral palsy. It is obligatory upon
every
appropriate Government to identify the posts for various categories of
disabled,
which may be earmarked for them. According to the petitioner several
advertisements, which have been issued in the Employment News from
1996 to 2006,
do not contain any provision for reservation for the blind and low
vision. Not
only the respondents have failed to give one per cent reservation to
blind and
low vision in terms of section 33 of the Act but also expressly
excluded blind
persons from applying and from being considered for appointment
against the
posts sought to be filled up by these advertisements. The public
sector
undertakings under the Central Government have also failed to comply
with the
provisions of section 33 of the Disabilities Act. This according to
the
petitioner amounts to clear violation of the fundamental right
guaranteed to the
blind and low vision under Article 16(1) of the Constitution. The
petitioner has
drawn attention to OMs dated 29.12.2005 and 26.04.2006, issued by the
Central
Government for implementation of the scheme for reservation to the
disabled as
contained in section 33 of the Disabilities Act. A reference is also
made to a
letter dated 13.1.2006 of the Secretary, Ministry of Social Justice
and
Empowerment conveying the decision of the Government to various
departments for
clearing up backlog of vacancies under section 33 in a time bound
manner. The
petitioner contends that in spite of the OMs and the letter, various
departments
of the Government and public sector undertakings did not even workout
the
vacancies which ought to have been reserved but have not been reserved
and have
not been filled by them. The petitioner has prayed for a mandamus
directing the
respondents to work out the vacancies which ought to have been
reserved for each
of the categories of persons with disabilities separately to the
extent of one
per cent each in a time bound manner in terms of OMs dated 29.12.2005
and
26.4.2006 and to undertake a special drive for filling up such
vacancies to be
completed in a time bound manner. The petitioner has also prayed for a
direction to the respondents to frame rules for ensuring compliance of
the
provisions of section 33 of the Disabilities Act and for further
ensuring that
persons suffering from blindness and low vision are allowed to appear
in all
recruitments / selection tests and to monitor the implementation of
the
reservation scheme for persons with disabilities in the same manner as
is done
in the case of SC, ST and OBC.
2. A notice of the petition was issued to the respondents and the
respondent
No.1 ? Union of India has appeared and a counter affidavit has been
filed on its
behalf. Since the petition raises some important questions relating to
section
33 of the Disabilities Act and other related provisions of the said
Act, notice
was also issued to the Chief Commissioner for Persons with
Disabilities, who has
filed his written response to the various contentions raised by the
petitioner
in the writ petition.
3.Before adverting to the issues raised in the petition, we may
briefly refer to
the legislative history of the Disabilities Act. With a view to
realising the
objective that people with disabilities have the same rights, hopes
and
aspirations as everyone else, and they are to be provided with equal
opportunities and rather better incentives for their rehabilitation in
the
society, a meeting was held in Beijing on 1st to 5th December, 1992
called the
?Meet to Launch the Asian and Pacific Decade of Disabled Persons?. A
proclamation was adopted by the Asian and Pacific countries to ensure ?
full
participation and equality of people with disabilities in the Asian
and the
Pacific regions?. India was a signatory to the said proclamation and
with a
view to implementing the same, the Disabilities Act was enacted and it
came into
force on 7.2.1996.
4.The Statement of Objects and Reasons to the Disabilities Act, which
was
appended to the Bill, before it was enacted, reads as under:
?STATEMENT OF OBJECTS AND REASONS
The meeting to launch the Asian and Pacific Decade of the Disabled
Persons 1993-2002 convened by the Economic and Social Commission for
Asian and
Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted
the
Proclamation on the Full Participation and Equality of People with
Disabilities
in the Asia and the Pacific region. India is a signatory to the said
proclamation and it is necessary to enact a suitable legislation 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-a-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 programmes
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.
2. Accordingly, it is proposed to provide inter alia for the
constitution
of Co-ordination Committees and Executive Committees at the Central
and State
levels to carry out the various functions assigned to them. Within the
limits
of their economic capacity and development the appropriate Governments
and the
local authorities will have to undertake various measures for the
prevention and
early detection of disabilities, creation of barrier-free environment,
provision
for rehabilitation services, etc. The Bill also provides for
education,
employment and vocational training, reservation in identified posts,
research
and manpower development, establishment of homes for persons with
severe
disabilities, etc. For effective implementation of the provision of
the Bill,
appointment of the Chief Commissioner for persons with disabilities at
the
Central level and Commissioners for persons with disabilities at the
State level
clothed with powers to monitor the funds disbursed by the Central and
State
Governments and also to take steps to safeguard the rights of the
persons with
disabilities is also envisaged.
3. The Bill seeks to achieve the above objects.?
5.The employment rights of persons with disabilities covered by
Chapter VI of
the Disabilities Act containing Sections 32 to 41 (except Section 39
which
relates to education) comprise the most empowering provisions of the
Disabilities Act as they yield the most tangible and substantial
rights to
persons with disabilities. Section 32 of the Disabilities Act provides
for
identification of posts, section 33 provides for reservation and
section 36
thereof provides that in case a vacancy is not filled up due to non-
availability
of a suitable person with disability, the vacancy is to be carried
forward in
the succeeding recruitment year. The provisions are reproduced below:
32. Identification of posts which can be reserved for persons with
disabilities:- Appropriate Governments shall--
(a) Identify posts, in the establishments, which can be reserved for
the persons
with disability;
(b) At periodical intervals not exceeding three years, review the list
of posts
identified and up-date the list taking into consideration the
developments in
technology.
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) loco motor 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.
36. Vacancies not filled up to be carried forward : Where in any
recruitment
year any vacancy under section 33, cannot be filled up due to non-
availability
of a suitable person with disability or, for any other sufficient
reason, such
vacancy shall be carried forward in the succeeding recruitment year
and if ;r
the succeeding recruitment year also suitable person with disability
is not
available, it may first be filled by interchange among the three
categories and
only when there is no person with disability available for the post in
that
year, the employer shall fill up the vacancy by appointment of a
person, other
than a person with disability:
Provided that if the nature of vacancies in an establishment is such
that a
given category of person cannot be employed, the vacancies may be
interchanged
among the three categories with the prior approval of the appropriate
Government.?
6.It is apparent from a reading of the aforesaid provisions that the
appropriate
Government is statutorily enjoined to appoint in every establishment
such
percentage of vacancies in the posts identified for each disability
not less
than 3% for persons with disabilities, of which 1% each shall be
reserved for
three categories mentioned in section 33 of the Act, namely, blindness
and low
vision, hearing impairment and locomotor disability or cerebral palsy.
The term
?establishment? has been defined in section 2(k) of the Act to mean ?a
corporation established by or under a Central, Provincial or State
Act, or an
authority or a body owned or controlled or aided by the Government or
local
authority or a Government company as defined in Section 617 of the
Companies
Act, 1956 (1 of 1956) and includes department of a Government?.
Therefore, each
department of the Government has to be treated as an 'establishment'
and the
Government is bound to reserve not less than 3% vacancies in an
establishment in
posts identified in accordance with section 33 of the Act. The posts
have been
identified for all the categories of persons with disabilities
including persons
suffering from blindness and low vision vide Notification dated
31.05.2001 which
has been further updated by Notification dated 1.1.2006.
7.At this stage, we may refer to the OM dated 29.12.2005 which was
issued with a
view to consolidate the existing instructions with a view to bringing
them in
line with the Disabilities Act and clarifying certain issues including
procedural matters. The relevant clauses of the OM read as follows:
?2. QUANTUM OF RESERVATION
(i)Three percent of the vacancies, in case of direct recruitment to
Group A, B,
C and D posts shall be reserved for persons with disabilities of which
one per
cent each shall be reserved for persons suffering from (i) blindness
or low
vision, (ii) hearing impairment and (iii) locomotor disability or
cerebral palsy
in the posts identified for each disability;
(ii)Three percent of the vacancies in case of promotion to Group D,
and Group C
posts in which the element of direct recruitment, if any, does not
exceed 75%,
shall be reserved for persons with disabilities of which one per cent
each shall
be reserved for persons suffering from (i) blindness or low vision,
(ii) hearing
impairment and (iii) locomotor disability or cerebral palsy in the
posts
identified for each disability.
13. COMPUTATION OF RESERVATION: Reservation for persons with
disabilities in
case of Group C and Group D posts shall be computed on the basis of
total number
of vacancies occurring in all Group C or Group D posts, as the case
may be, in
the establishment, although the recruitment of the persons with
disabilities
would only be in the posts identified suitable for them. The number of
vacancies to be reserved for the persons with disabilities in case of
direct
recruitment to Group C posts in an establishment shall be computed by
taking
into account the total number of vacancies arising in Group C posts
for being
filled by direct recruitment in a recruitment year both in the
identified and
non-identified posts under the establishment. The same procedure shall
apply for
Group D posts. Since reservation is limited to identified posts only
and number
of vacancies reserved is computed on the basis of total vacancies (in
identified
posts as well as unidentified posts), it is possible that number of
persons
appointed by reservation in an identified posts may exceed 3 percent.
14. Reservation for persons with disabilities in Group A posts shall
be computed
on the basis of vacancies occurring in direct recruitment quota in all
the
identified Group A pots in the establishment. The same method of
computation
applies for Group B posts.
15. EFFECTING RESERVATION ?MAINTENANCE OF ROSTERS:
(a) all establishment s shall maintain separate 100 point reservation
roster
registers in the format given in Annexure II for determining/effecting
reservation for the disabled ? one each for Group A posts filled by
direct
recruitment, Group B posts filled by direct recruitment, Group C posts
filled by
direct recruitment, Group C posts filled by promotion, Group D posts
filled by
direct recruitment and Group D posts filled by promotion.
(b) Each register shall have cycles of 100 points and each cycle of
100 points
shall be divided into three blocks, comprising the following points :
1st Block ? point No.1 to point NO.33
2nd Block ? point No.34 to point NO.66
3rd Block ? point No.67 to point No.100
(c) Points 1, 34, and 67 of the roster shall be earmarked reserved for
persons
with disabilities ? one point for each of the three categories of
disabilities.
The head of the establishment shall decide the categories of
disabilities for
which the points 1,34 and 67 will be reserved keeping in view all
relevant
facts.
(d) All the vacancies in Group C posts falling in direct recruitment
quota
arising in the establishment shall be entered in the relevant roster
register.
If the post falling at point NO.1 is not identified for the disabled
or the
head of the establishment considered it desirable not fill it up by a
disabled
person or it is not possible to fill up that post by the disabled for
any other
person, one of the vacancies falling at any of the points from 2 to 33
shall be
treated as reserved for the disabled and filled as such. Likewise a
vacancy
falling at any of the points from 34 to 66 or from 67 to 100 shall be
filled by
the disabled. The purpose of keeping points 1,34 and 67 as reserved is
to fill
up the first available suitable vacancy from 1 to 33, first available
suitable
vacancy from 34 to 66 and first available suitable vacancy from 67 to
100 person
with disabilities.
(e) There is a possibility that none of the vacancies from 1 to 33 is
suitable
for any category of the disabled. In that case two vacancies from 34
to 66
shall be filled as reserved for persons with disabilities. If the
vacancies
from 34 to 66 are also not suitable for any category, three vacancies
shall be
filled as reserved from the third block containing points from 67 to
100. This
means that if no vacancy can be reserved in a particular block, it
shall be
carried into the next block.
(f) After all the 100 points of the roster are covered, a fresh cycle
of 100
points shall start .
(g) If the number of vacancies in a year is such as to cover only one
block or
two, discretion as to which category of the disabled should be
accommodated
first shall vest in the head of the establishment, who shall decide on
the basis
of the nature of the post, the level of representation of the specific
disabled
category in the concerned grade/post etc.
(h) A separate roster shall be maintained for Group C posts filled by
promotion
and procedure as explained above shall be followed for giving
reservation to
persons with disabilities. Like wise two separate rosters shall be
maintained
for Group A and Group B posts, all vacancies of direct recruitment
arising in
identified posts shall be entered and reservation shall be effected
the same way
as explained above.
(i) Reservation in group A and group B posts is determined on the
basis of
vacancies in the identified posts only. Separate rosters for Group A
posts and
Group B posts in the establishment shall be maintained. In the rosters
maintained for Group A and Group B posts, all vacancies of direct
recruitment
arising in identified posts shall be entered and reservation shall be
effected
the same way as explained above.
16. INTER SE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF
DIRECT
RECRUITMENT
(a) Reservation for each of the three categories of persons with
disabilities
shall be made separately. But if the nature of vacancies in an
establishment is
such that a person of a specific category of disability cannot be
employed, the
vacancies may be interchanged among the three categories with the
approval of
the Ministry of Social Justice and Empowerment and reservation may be
determined
and vacancies filled accordingly.
(b) If any vacancy reserved for any category of disability cannot be
filled due
to non-availability of a suitable person with that disability or, for
any other
sufficient reason, such vacancy shall not be filled and shall be
carried forward
as a 'backlog reserved vacancy' to the subsequent recruitment year.
(c) In the subsequent recruitment year the 'backlog reserved vacancy'
shall be
treated as reserved for the category of disability for which it was
kept
reserved in the initial year of recruitment. However, if a suitable
person with
that disability is not available, it may be filled by interchange
among the
three categories of disabilities. In case no suitable person with
disability is
available for filling up the post in the subsequent year also, the
employer may
fill up the vacancy by appointment of a person other than a person
with
disability. If the vacancy is filled by a person with disability of
the category
for which it was reserved or by a person of other category of
disability by
inter se exchange in the subsequent recruitment year, it will be
treated to have
been filled by reservation. But if the vacancy is filled by a person
other than
a person with disability in the subsequent recruitment year,
reservation shall
be carried forward for a further period upto two recruitment years
whereafter
the reservation shall lapse. In these two subsequent years, if
situation so
arises, the procedure for filling up the reserved vacancy shall be the
same as
followed in the first subsequent recruitment year.
19. HORIZONTALITY OF RESERVATION FOR PERSONS WITH DISABILITIES:
Reservation for
backward classes of citizens (SCs, STs and OBCs) is called vertical
reservation
and the reservation for categories such as persons with disabilities
and ex-
servicemen is called horizontal reservation. Horizontal reservation
cuts across
vertical reservation (in what is called interlocking reservation) and
person
selected against the quota for persons with disabilities have to be
placed in
the appropriate category viz. SC/ST/OBC/General candidates depending
upon the
category to which they belong in the roster meant for reservation of
SCs/STs/OBCs. To illustrate, if in a given year there are two
vacancies reserved
for the person with disabilities and out of two persons with
disabilities
appointed, one belongs to a Scheduled Caste and the other to general
category
then the disabled SC candidate shall be adjusted against the SC point
in the
reservation roster and the general candidate against unreserved point
in the
relevant reservation roster. In case none of the vacancies falls on
point
reserved for the SCs, the disabled candidate belonging to SC shall be
adjusted
in future against the next available vacancy reserved for SCs.
20. Since the persons with disabilities have to be placed in the
appropriate
category viz., SC/ST/OBC/General in the roster meant for reservation
of
SCs/STs/OBCs, the application form for the post should require the
candidates
applying under the quota reserved for persons with disabilities to
indicate
whether they belong to SC/ST/OBC or General category.?
8.Paragraphs 21 and 22 of the OM respectively provides for relaxation
in age
limit and relaxation for standard suitability.
9.As the directions contained in OM dated 29.12.2005 were not
implemented as a
result of which, representations were made by the petitioner to
Central
Government complaining that its departments, establishments and public
sector
undertakings have not even worked out the vacancies which ought to
have been
reserved. Consequently another OM dated 26.04.2006 came to be issued
directing
that all establishments, departments and public sector undertakings
should
maintain reservation rosters registers beginning from 1996 by
designating points
numbers 1, 34 and 67 for persons with disabilities with an object to
grant one
vacancy each to persons suffering from blindness and low vision,
persons
suffering from hearing impairment and persons suffering from locomotor
disability or cerebral palsy respectively. In the same OM, while
admitting that
the reservation policy has not been implemented in the right earnest,
a clear
direction was given to all establishments as follows:
?In order to achieve this objective, all the establishments should
prepare the
reservation roster registers as provided in this Department's O.M. No.
36035/3/2004-Estt. (Res) dated 29.12.2005 starting from the year 1996
and
reservation for persons with disabilities be earmarked as per
instructions
contained in that OM. If some or all the vacancies so earmarked had
not been
filled by reservation and were filled by able bodied persons either
for the
reason that points of reservation had not been earmarked properly at
the
appropriate time or persons with disabilities did not become
available, such
unutilized reservation may be treated as having been carried forward
to the
first recruitment year occurring after issue of this O.M. And be
filled as
such. If it is not possible to fill up such reserved vacancies during
the said
recruitment year, reservation would be carried forward for further two
years,
whereafter it may be treated as lapsed.?
10.It appears that even after issuance of OMs dated 29.12.2005 and
26.4.2006
only a handful of departments of Union of India claimed to have
maintained
roster but even those who made this claim have not made the rosters
properly nor
have effectively implemented 3% reservation in favour of the disabled.
In fact,
the Central Government has been compelled to issue a fresh OM dated
10.12.2008
requiring all the ministries / departments to take action to identify
unfilled
vacancies due to non-implementation of the provisions of section 33 of
the
Disabilities Act and to treat these vacancies as backlog vacancies for
the
current recruitment year.
11.Mr.Rungta, learned counsel appearing for the petitioner,
strenuously
contended that neither Department of Personnel and Training and Public
Grievances nor Ministry of Social Justice and Empowerment nor office
of the
Chief Commissioner for Persons with Disabilities is monitoring the
implementation the scheme of reservation for persons with
disabilities. As a
result various departments of the Government of India as well as the
public
sector undertakings have been openly flouting the policy of
reservation
contained in section 33 of the Disabilities Act for over 12 years now.
Mr.Rungta also took exception to some of the provisions of the OM
dated
29.12.2005. According to him the reservation under section 33 is
required to be
computed on the basis of the total cadre strength of the establishment
and not
on the basis of the vacancies in posts identified for the purpose of
appointment
of persons from the disabled categories. He submitted that para 13 of
OM dated
29.12.2005 clearly provides that 3% reservation has to be worked out
in Groups C
and D posts on the basis of vacancies in identified posts as well as
unidentified posts in an establishment whereas paragraph 14 provides
that
reservation in Groups A and B shall be computed on the basis of the
vacancies
occurring only in the identified posts in the establishment.
Therefore,
according to him para 14 is clearly inconsistent with the mandate of
section 33.
He prayed that the respondents should be directed to work out the
backlog of
vacancies by obtaining necessary information from respective
departments as well
as public sector undertakings, government companies etc. and to take a
centralized special recruitment drive to fill up the backlog of
vacancies for
the blind and low vision as well as other categories of disabled in
accordance
with section 33 of the Disabilities Act.
12.In reply, learned Additional Solicitor General fairly conceded that
there had
been laxity on the part of various ministries / departments and public
sector
undertakings in implementation of the scheme of reservation under
section 33.
He submitted that the Union of India is taking all necessary steps to
complete
the process of reservation and for that purpose OM dated 10.12.2008
has already
been issued. Learned Additional Solicitor General, however, opposed
the plea of
Mr.Rungta that reservation under section 33 is required to be computed
on the
basis of the total strength of the cadre in an establishment.
According to him
the Act provides 3% reservation only in the vacancies in posts
identified for
the disabled categories and not on the total strength of the cadre.
The
Government, however, keeping in mind the fact that reservation in
Groups C and D
posts was being calculated on the basis of vacancies in identified as
well as
unidentified posts prior to the Disabilities Act came into force and
the
provisions of section 72 of the Disabilities Act continued to compute
reservation the same way in Groups A and B on the basis of vacancies
in
identified as well as unidentified posts. He submitted that the
reservation
under section 33 is a horizontal reservation and not vertical
reservation. He
referred to the decision of the Supreme Court in Indra Sawhney and
others v.
Union of India and others 1992 Supp (3) SCC 217 wherein the Supreme
Court has
explained the concept of horizontal reservation. He submitted that
paragraph 15
of the OM dated 29.12.2005 provides for a vacancy based roster and not
post
based roster. According to him the purpose of providing for vacancy-
based
roster was to give more representation to disabled categories which
would not be
possible in the case of post based roster.
13.At the outset we may state that the Government has utterly failed
in ensuring
proper implementation of the statutory reservation under section 33
and
protecting the rights of the persons with disabilities and in
particular those
suffering from blindness or low vision. Admittedly, the persons
suffering from
blindness and low vision have not only been deprived of the benefit of
reservation but they have been excluded from consideration in the
recruitments
held in the past. This is clearly brought out from various
advertisements
attached along with the petition particularly Annexure G and K at
pages 103-138
and 168-173. It appears that prior to 2005 there were no written
instructions
laying down the manner in which implementation of the scheme of
reservation for
disabled has to be ensured. Even after issuance of OM dated 29.12.2005
and OM
dated 26.4.2006 reservation roster has not been properly maintained
nor the
policy of reservation has been effectively implemented for different
categories
of disabled as envisaged by section 33. It is distressing to note that
in spite
of lapse of 12 years after the Act came into force, the scheme of
reservation
has virtually remained on paper and there is no effective
implementation of the
reservation policy due to apathy of the concerned ministries /
departments
towards the disabled. We hasten to add that the learned Additional
Solicitor
General has taken a very positive approach of the matter and has
assured the
Court that the Government will do its best for the full implementation
of the
reservation scheme for the disabled. He submitted that the Court may
issue
appropriate directions for the strict implementation of the
reservation policy
for the disabled.
14.The reservation for disabled falls under Article 16(1) of the
Constitution of
India and is a horizontal reservation. In Indra Sawhney and others v.
Union of
India and others (supra) the principle of horizontal reservation was
explained
thus: (SCC pp.?735-36, para 812)
?[A]ll reservations are not of the same nature. There are two types of
reservations, which may, for the sake of convenience, be referred to
as
?vertical reservations? and ?horizontal reservations?. The
reservations in
favour of Scheduled Castes, Scheduled Tribes and Other Backward
Classes [under
Article 16(4)] may be called vertical reservations whereas
reservations in
favour of physically handicapped [under Clause (1) of Article 16] can
be
referred to as horizontal reservations. Horizontal reservations cut
across the
vertical reservations?what is called interlocking reservations. To be
more
precise, suppose 3% of the vacancies are reserved in favour of
physically
handicapped persons; this would be a reservation relatable to Clause
(1) of
Article 16. The persons selected against this quota will be placed in
the
appropriate category; if he belongs to SC category he will be placed
in that
quota by making necessary adjustments; similarly, if he belongs to
open
competition (OC) category, he will be placed in that category by
making
necessary adjustments. Even after providing for these horizontal
reservations,
the percentage of reservations in favour of Backward Class of citizens
remains?and should remain?the same.?
15.Coming to the question of manner of computation of reservation
under section
33, after giving anxious thought to the submissions made at the Bar we
are not
inclined to accept the submissions of the learned Additional Solicitor
General
that the 3% reservation has to be computed only on the basis of
vacancies in
identified posts in the cadre. In the first place, section 33 provides
for 3%
reservation in posts in an establishment and not just in the vacancies
in posts
identified for disabled. Heading of section 33 is reservation of posts
and it
mandates the Government to appoint in every establishment ?such
percentage of
vacancies not less than 3% of which 1% each has to be reserved for
persons
suffering from blindness or low vision, hearing impairment and
locomotor
disability or cerebral palsy in the posts identified for each
disability?. In
our opinion the plain meaning of section 33 is that while 3%
reservation has to
be computed on the basis of the total strength in an establishment,
such
appointment has to be made in the posts identified for each
disability. Section
32 of the Act requires the appropriate Government to identify posts in
the
establishment which can be reserved for the persons with disability.
In our
opinion the words ?every appropriate Government shall appoint in every
establishment such percentage of vacancies not less three per cent ?.
in the
posts identified ?.? clearly indicates the intention of the
legislature to
provide at least 3% of reservation on the basis of the total number of
posts in
an establishment. The fact that persons belonging to disabled
categories are to
be appointed in the posts identified for such disabilities does not
mean that 3%
reservation is to be computed only on the basis of identified posts.
The
computation has to be with reference to the cadre strength.
16.The Disabilities Act was enacted for protection of the rights of
the disabled
in various spheres like education, training, employment and to remove
any
discrimination against them in the sharing of development benefits
vis-?-vis
non-disabled persons. In the light of the legislative aim it is
necessary to
give purposive interpretation to section 33 with a view to achieve the
legislative intendment of attaining equalization of opportunities for
persons
with disabilities. The fact that the vacancy-based roster is to be
maintained
does not mean that 3% reservation has to be computed only on the basis
of
vacancy. The difference between the posts and vacancies has been
succinctly
pointed out in the Supreme Court decision in the case of R.K.
Sabharwal and ors.
v. State of Punjab and ors. ?AIR 1995 SC 1371 wherein it was held that
the word
?post? means an appointment, job, office or employment, a position to
which a
person is appointed. ?'`Vacancy'` means an unoccupied post or office.
The plain
meaning of the two ex-pressions make it clear that there must be a
'post' in
existence to enable the 'vacancy' to occur. The cadre-strength is
always
measured by the number of posts comprising the cadre. ?Right to be
considered
for appointment can only be claimed in respect of a post in a cadre. ?
As a
consequence the percentage of reservation has to be worked out in
relation to
the number of posts which form the cadre-strength. The concept of
'vacancy' has
no relevance in operating the percentage of reservation. Therefore, in
our
opinion, 3% reservation for disabled has to be computed on the basis
of total
strength of the cadre i.e. both identified as well as unidentified
posts. We
are in agreement with Mr.Rungta that the paragraph 14 of the OM dated
29.12.2005
is inconsistent with the provisions of section 33 of the Disabilities
Act.
17.In our opinion, in order to ensure proper implementation of
reservation
policy for the disabled and to protect their rights it is necessary to
issue the
following directions:
i.We direct the respondents to constitute a committee consisting of
the Chief
Commissioner for disabilities (Chairman), Joint Secretary, Department
of
Personnel and Training, Joint Secretary, Ministry of Social Justice
and
Empowerment, Joint Secretary, Department of Public enterprises, and
Secretary,
Staff Selection Commission to do the following acts in terms of this
order:
(a) To solicit information with regard to recruitments made by
departments/public sector undertakings/government companies from the
date when
the Disabilities Act came into force in 1996 and to work out backlog
of
vacancies for the disabled on the total cadre strength in different
establishments within one month from the date of this order.
(b) To undertake special recruitment drive by organising centralised
recruitment
against backlog so worked out so as to fill up the vacancies by
utilising at
least 50% of the vacancies available with the respective
establishments for this
purpose only.
(c ) To organise further special recruitment drive as required so as
to fill up
the remaining backlog of vacancies by 31st December, 2010.
ii.Respondent No.1 will issue an appropriate order modifying the OM
dated
29.12.2005 and the subsequent OMs consistent with this Courts order.
iii.The respondent No.1 shall issue instructions to all the
departments /public
sector undertaking/government companies declaring that the non
observance of the
scheme of reservation for persons with disabilities should be
considered as an
act of non-obedience and the Nodal Officer in departments/Public
Sector
undertakings/government companies responsible for the proper strict
implementation of reservation for person with disabilities to be
departmentally
proceeded against for his default.
iv.The respondent No.1 is further directed to issue instructions to
all the
departments/public sector undertakings/government companies as well as
recruiting agencies not to undertake recruitment for any department/
public
sector undertakings/government company unless the departmental/public
sector
undertaking/ government company makes provisions for reservation for
persons
with disabilities in terms of the order of this Court and a clearance
is granted
by the Committee headed by the Chief Commissioner for Disabilities.
v.The Committee headed by the Chief Commissioner for Disabilities
shall submit a
status report on implementation of the above directions of this Court
within
three months from the date of this order.
18.List on 6th April, 2009.
CHIEF JUSTICE
S. MURALIDHAR, J.
DECEMBER19, 2008
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