Reservations of 3% for disabled persons under the persons with Disabilities Act in various Govt. institution - some directions to implement the same =
wherein the High Court interpreted Section 33 of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (in short ‘the Act’) and issued various
directions to be complied with by the appellants herein.=
Held that Thus, after thoughtful consideration, we are of the view that the
computation of reservation for persons with disabilities has to be computed
in case of Group A, B, C and D posts in an identical manner viz.,
“computing 3% reservation on total number of vacancies in the cadre
strength” which is the intention of the legislature. Accordingly, certain
clauses in the OM dated 29.12.2005, which are contrary to the above
reasoning are struck down and we direct the appropriate Government to issue
new Office Memorandum(s) in consistent with the decision rendered by this
Court.
Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, Indra Sawhney (supra) is not applicable with respect to the disabled persons.
We also reiterate that the decision in R.K. Sabharwal (supra) is not applicable to the reservation for the persons with disabilities because in the above said case, the point for consideration was with regard to the implementation of the scheme of reservation for SC, ST & OBC, which is vertical reservation, whereas reservation in favour of persons with disabilities is horizontal.
In our opinion, in order to ensure proper implementation of the
reservation policy for the disabled and to protect their rights, it is
necessary to issue the following directions:
(i) We hereby direct the appellant herein to issue an appropriate order
modifying the OM dated 29.12.2005 and the subsequent OMs consistent with
this Court’s Order within three months from the date of passing of this
judgment.
(ii) We hereby direct the “appropriate Government” to compute the number
of vacancies available in all the “establishments” and further identify the
posts for disabled persons within a period of three months from today and
implement the same without default.
(iii) The appellant herein shall issue instructions to all the
departments/public sector undertakings/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 Nodal
Officer in department/public sector undertakings/Government companies,
responsible for the proper strict implementation of reservation for person
with disabilities, be departmentally proceeded against for the default.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
1
2 CIVIL APPEAL NO.9096 OF 2013
3 (Arising out of SLP (Civil) No. 7541 of 2009)
Union of India & Anr. .... Appellant(s)
Versus
National Federation of
the Blind & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, CJI.
1) Leave granted.
2) This appeal is directed against the final judgment and order dated
19.12.2008 passed by the High Court of Delhi at New Delhi in Writ Petition
(C) No. 15828 of 2006 wherein the High Court interpreted Section 33 of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (in short ‘the Act’) and issued various
directions to be complied with by the appellants herein.
3) Brief facts:
(a) National Federation of the Blind-Respondent No. 1 herein is an apex
organization and a society registered under the Societies Registration Act,
1860, having its Head Office at New Delhi and is working for the
protection of the rights of the visually challenged.
(b) In the year 2006, Respondent No. 1 herein filed a writ petition
before the High Court in public interest seeking implementation of Section
33 of the Act alleging that the appellants herein have failed to provide
reservation to the blind and low vision persons and they are virtually
excluded from the process of recruitment to the Government posts as
stipulated under the said Act.
(c) In the above backdrop, it is relevant to mention that way back in
1977, the erstwhile Ministry of Social Welfare, Government of India, made
reservation in favour of the following three categories of disabled persons
in Group C & D posts to the extent of 1 per cent each for the (i) Blind;
(ii) Hearing and Speech Impairment; and (iii) persons suffering from
locomotor disability.
In the year 1986, the Department of Personnel &
Training (DoPT), directed all the departments to take into account both
identified and unidentified posts for working out the total number of
vacancies to be reserved for each of the disabled categories. In spite of
the above said executive order, various government departments and public
sector undertakings did not give effect to the scheme of reservation which
compelled Respondent No. 1 herein to organize a nation wide agitation, as a
result of which, an agreement was arrived at between the parties on
27.08.1987 to undertake a Special Recruitment Drive for clearing up the
backlog of vacancies.
(d) On 07.02.1996, the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 was brought into
force making reservation of at least 3 percent posts in all government
establishments to the extent of 1 per cent each for the persons suffering
from (i) blindness or low vision; (ii) hearing impairment; and (iii)
locomotor disability or cerebral palsy.
After enactment of the said Act,
Union of India issued various orders for ensuring proper implementation of
the provisions of the Act for the persons with disabilities.
(e) Respondent No. 1 herein, by filing the above said petition before the
High Court asserted that despite statutory provisions and various executive
orders, discrimination against the persons with disabilities continued in
filling up the vacancies in various government departments whereas it was
contended by the other side that the Office Memorandum (OM) dated
29.12.2005, issued by the Department of Personnel & Training, inter alia
provides a system for ensuring proper implementation of the provisions of
the Act for the persons with disabilities.
(f) Vide order dated 19.12.2008, the High Court disposed of the petition
directing the Union of India to modify the OM dated 29.12.2005 being
inconsistent with the provisions of Section 33 of the Act and issued
several other directions.
(g) Being aggrieved of the above, the appellants have preferred this
appeal by way of special leave before this Court.
(h) Tamil Nadu Handicapped Federation Charitable Trust, Smt S. Rajeswari
and Association for Physically Challenged People Ordnance Clothing Factory
filed applications for impleadment. Vide order dated 22.07.2011, this
Court did not allow them to implead but to act as intervenors in the
proceedings.
4) Heard Ms. Indra Jaisingh, learned Additional Solicitor General for
the Union of India, Mr. S.K. Rungta, learned senior counsel (R-1) appearing
in person and Mr. R. Prabhakaran, learned counsel for Intervenors.
Submissions:
5) Ms. Indra Jaisingh, learned Additional Solicitor General for the
Union of India, after taking us through various provisions of the Act and
OM(s) issued by the Government of India submitted that the impugned
judgment of the High Court is against the provisions of the Act. She
further pointed out that the finding of the High Court that in terms of
Section 33 of the Act, 3% reservation for the disabled persons has to be
computed on the basis of total strength of the cadre, i.e., both identified
as well as unidentified posts is erroneous. In any event, according to
her, the direction of the High Court to work out backlog vacancies for the
disabled persons on the total cadre strength in different establishments
within one month from the date of the order is impractical and not
executable. It is further highlighted that according to Section 33 of the
Act, reservation to the persons with disabilities in an establishment shall
be 3% of the vacancies arising in the posts which are identified for the
persons with disabilities. The High Court, by the impugned judgment,
disturbed the very basic system of the reservation of posts for the persons
with disabilities. She further highlighted that the reservation for Group
C and D posts is being calculated on the basis of the vacancies in
identified as well as unidentified posts prior to the Act came into
existence and in view of the provisions of Section 72 of the Act, continued
in the same way, however, reservation for Group A and B posts is being
calculated on the basis of the vacancies for identified posts as per the
provisions of the Act.
6) On the other hand, Mr. S.K. Rungta, learned senior counsel (R-1)
appearing in person submitted that in terms of the provisions of the Act,
more particularly, Sections 32 and 33 of the Act, it is obligatory on the
part of the Government establishments to provide at least 3% reservation of
posts in the total cadre strength and not in the identified vacancies. He
further pointed out that though the Act was passed in 1995 since then the
provisions have not been strictly implemented. He prayed for further time
bound direction for implementation of the same.
7) Mr. R. Prabhakaran, learned counsel for intervenors reiterated the
submissions made by Mr. S.K. Rungta.
8) We have perused all the relevant materials and considered the rival
submissions.
Relevant Provisions:
9) In order to answer the rival contentions, it is desirable to quote
the relevant provision of the Act. Sections 2(a), 2(i), 2(j) and 2(k) of
the Act read as under:
“2(a) “appropriate Government” means,-
i) in relation to the Central Government or any establishment
wholly or substantially financed by that Government, or a
Cantonment Board constituted under the Cantonment Act, 1924 (2
of 1924), the Central Government;
ii) in relation to a State Government or any establishment wholly or
substantially financed by that Government or any local
authority, other than a Cantonment Board, the State Government;
iii) in respect of the Central Co-ordination Committee and the
Central Executive Committee, the Central Government;
iv) in respect of the State Co-ordination Committee and the State
Executive Committee, the State Government;
2(i) "Disability" means-
i) blindness;
ii) low vision;
iii) leprosy-cured;
iv) hearing impairment;
v) locomotor disability;
vi) mental retardation;
vii) mental illness;
2(j) "employer" means,-
i) in relation to a Government, the authority notified by the
Head of the Department in this behalf or where no such
authority is notified, the Head of the Department; and
ii) in relation to an establishment, the Chief Executive Officer
of that establishment;
2(k) "establishment" means 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 a local authority or a
Government company as defined in section 617 of the Companies Act,
1956 (1 of 1956) and includes Departments of a Government;”
10) Among the above definitions, we are more concerned with the
definition of “establishment” under Section 2(k) of the Act, which is an
exhaustive definition and covers (i) a corporation established by or under
a Central, Provincial or State Act, or (ii) an authority or a body owned or
controlled or aided by the Government or a local authority, or (iii) a
Government company as defined in Section 617 of the Companies Act, 1956 and
(iv) Departments of a Government.
11) Chapter VI of the Act deals with the employment of persons with
disabilities. The relevant Sections of the said Chapter are as under:-
“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) locomotor disability or cerebral palsy,
in the posts identified for each disability:
Provided that the appropriate Government may, having regard to
the type of work carried on in any department or establishment, by
notification subject to such conditions, if any, as may be specified
in such notification, exempt any establishment from the provisions of
this section.
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 in 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.”
12) In exercise of the powers conferred by sub-sections (1) and (2) of
Section 73 of the Act, the Central Government enacted the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Rules, 1996.
13) After enactment of the above Act, in order to consolidate the
existing instructions in line with the provisions of the Act, on
29.12.2005, Government of India, Department of Personnel and Training,
issued certain instructions by way of an Office Memorandum (OM), with
regard to the reservation for the persons with disabilities (physically
handicapped persons) in posts and services. The said Office Memorandum
specifically states that it shall supersede all previous instructions
issued on the subject so far.
Respondent No. 1 herein has commended
various clauses of the OM dated 29.12.2005. The relevant clauses of the
same are extracted hereinbelow:
“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.
3. EXEMPTION FROM RESERVATION:
If any Department/Ministry considers it necessary to exempt any
establishment partly or fully from the provisions of reservation for
persons with disabilities of which one percent 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, it may make a reference to the
Ministry of Social Justice and Employment giving full justification
for the proposal. The grant of exemption shall be considered by an
Inter-Departmental Committee set up by the Ministry of Social Justice
and Empowerment.
4. IDENTIFICATION OF JOBS/POSTS:
The Ministry of Social Justice and Empowerment have identified the
jobs/posts suitable to be held by persons with disabilities and the
physical requirement for all such jobs/posts vide their notification
no. 16-25/99.NII dated 31.5.2001. The jobs/posts given in Annexure II
of the said notification as amended from time to time shall be used to
give effect to 3 per cent reservation to the persons with
disabilities. It may, however, be noted that:
(a) The nomenclature used for any job/post shall mean and include
nomenclature used for other comparable jobs/posts having identical
functions.
(b) The list of jobs/posts notified by the Ministry of Social
Justice & Empowerment is not exhaustive. The concerned
Ministries/Departments shall have the discretion to identify
jobs/posts in addition to the jobs/posts already identified by the
Ministry of Social Justice & Empowerment. However, no
Ministry/Department/Establishment shall exclude any identified
job/post from the purview of reservation at its own discretion.
(c) If a job/post identified for persons with disabilities is
shifted from one group or grade to another group or grade due to
change in the pay-scale or otherwise, the job/post shall remain
identified.
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. Similarly, all vacancies in promotion quota
shall be taken into account while computing reservation in promotion
in Group C and 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 posts in the establishment. The
same method of computation applies for Group B posts.
15. EFFECTING RESERVATION - MAINTENANCE OF ROSTERS:
(a) all establishments 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 considers it
desirable not to fill 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 persons 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. Likewise two separate
rosters shall be maintained for Group D posts, one for the posts
filled by direct recruitment and another for posts filled by
promotion.
(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 persons 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.”
14) Clauses 21 and 22 of the said OM enable the Government for relaxation
in age limit as well as standard of suitability.
15) After the OM dated 29.12.2005, based on the representations made by
Respondent No. 1 herein, another OM dated 26.04.2006 came to be issued.
The details and the directions contained in the said OM are as follows:
“Dated the 26th April, 2006
OFFICE MEMORANDUM
Sub: Reservation for the Persons with Disabilities
The undersigned is directed to say that the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 which came into existence on 01.01.1996
provides for reservation for persons with disability in the posts
identified for three categories of disabilities namely (i) blindness
or low vision, (ii) hearing impairment and (iii) locomotor disability
or cerebral palsy. Instructions have also been issued by this
Department for providing reservation for such persons. In spite of the
Act and the instructions of this Department, vacancies were not
earmarked reserved or were not filled by reservation in some
establishments.
2. The matter has been considered carefully and it has been decided
that reservation for persons with disabilities should be implemented
in right earnest and there should be no deviation from the scheme of
reservation, particularly after the Act came into effect. 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.
3. It has been observed that some recruiting agencies declare in their
advertisements that blind/partially blind candidates need not apply
and that separate examinations would be conducted for visually
handicapped candidates. Attention is invited to para 7 of this
Department's O.M. No. 36035/3/2004-Estt (Res) dated 29.12.2005 which
provides that persons with disabilities selected on their own merit
will not be adjusted against the reserved share of vacancies. It means
that persons with disabilities who are selected on their own merit
have to be adjusted against the unreserved vacancies and reservation
has to be given in addition. If visually handicapped candidates or any
other category of handicapped candidates are debarred from applying on
the ground that a separate examination would be conducted for them,
chances of handicapped candidates being selected on their own merit
would be eliminated. Thus, debarring of any category of handicapped
candidates in the above manner is against the provisions contained in
the aforesaid O.M. It is, therefore, requested that persons with
disabilities should not be debarred from applying for the posts
identified suitable for them and should be provided opportunity to
compete for the unreserved vacancies as well by holding a common
examination.
4. Contents of this O.M. may be brought to the notice of all
concerned.
Sd/-
(K.G.Verma)
Deputy Secretary to the Govt. of India”
16) Another OM dated 10.12.2008, issued by the Department of Personnel
and Training, was also brought to our notice whereunder a Special
Recruitment Drive to fill up the backlog reserved vacancies for the persons
with disabilities was initiated. The said OM mainly speaks about filling
up of “backlog reserved vacancies”. Relevant portion of the said OM is
extracted hereinbelow:
“Dated the 10th December, 2008
OFFICE MEMORANDUM
Sub: Special Recruitment Drive to fill up the backlog reserved
vacancies for Persons with Disabilities
The undersigned is directed to say that this Department's O.M.
No. 36035/3/2004-Estt(Res) dated 29.12.2005 provides that 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 is not filled and is carried
forward as a 'backlog reserved vacancy' to the subsequent recruitment
year. In the subsequent recruitment year, the 'backlog reserved
vacancy' is treated as reserved for the category of disability for
which it was kept reserved in the initial year of recruitment and
filled as such. However, if a suitable person with that disability is
not available in the subsequent recruitment also, it may be filled by
interchange among the three categories of disabilities, failing which
by appointment of a person other than a person with disability. It
may, thus, be seen that if a vacancy is earmarked reserved for any
category of disability and a suitable person with that disability is
not available to fill it up in the initial year of recruitment, it
becomes a 'backlog reserved vacancy' for first subsequent recruitment
year.
2. As per instructions existing prior to issue of O.M. dated
29.12.2005, if in any year, suitable physically handicapped candidates
were not available to fill up a reserved vacancy, the vacancy was
filled by an other category candidate and reservation was carried
forward for a period of upto three recruitment years. In the event of
non-availability of suitable persons with disabilities, the reserved
vacancies were not kept unfilled. Thus there was no provision of
backlog reserved vacancies of persons with disabilities prior to
29.12.2005. Nevertheless, it is possible that some
Ministries/Departments/ establishments might have kept some vacancies
earmarked reserved for the persons with disability unfilled due to non-
availability of persons with disability. If there exist such
vacancies, these will be treated as backlog reserved vacancies for the
current recruitment year”
17) By issuing such directions, the Department of Personnel and Training
directed all the Ministries/Departments to launch a Special Recruitment
Drive and fixed target dates for fulfilling various stages.
Discussion:
18) In the light of the above statutory provisions as well as various
clauses of the OM dated 29.12.2005, let us analyze whether the High Court
was justified in passing the impugned judgment.
19) Before adverting to the rival contentions submitted by the appellants
and the respondents, it is relevant to comprehend the background and the
objective of the Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995.
20) India as a welfare State is committed to promote overall development
of its citizens including those who are differently abled in order to
enable them to lead a life of dignity, equality, freedom and justice as
mandated by the Constitution of India. The roots of statutory provisions
for ensuring equality and equalization of opportunities to the differently
abled citizens in our country could be traced in Part III and Part IV of
the Constitution. For the persons with disabilities, the changing world
offers more new opportunities owing to technological advancement, however,
the actual limitation surfaces only when they are not provided with equal
opportunities. Therefore, bringing them in the society based on their
capabilities is the need of the hour.
21) Although, the Disability Rights Movement in India commenced way back
in 1977, of which Respondent No. 1 herein was an active participant, it
acquired the requisite sanction only at the launch of the Asian and Pacific
Decade of Disabled Persons in 1993-2002, which gave a definite boost to the
movement. The main need that emerged from the meet was for a comprehensive
legislation to protect the rights of persons with disabilities. In this
light, the crucial legislation was enacted in 1995 viz., the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 which empowers persons with disabilities and
ensures protection of their rights. The Act, in addition to its other
prospects, also seeks for better employment opportunities to persons with
disabilities by way of reservation of posts and establishment of a Special
Employment Exchange for them.
22) For the same, Section 32 of the Act stipulates for identification of
posts which can be reserved for persons with disabilities. Section 33
provides for reservation of posts and Section 36 thereof provides that in
case a vacancy is not filled up due to non-availability of a suitable
person with disability, in any recruitment year such vacancy is to be
carried forward in the succeeding recruitment year. The difference of
opinion between the appellants and the respondents arises on the point of
interpretation of these sections.
23) It is the stand of the Union of India that the Act provides for only
3% reservation in the vacancies in the posts identified for the disabled
persons and not on the total cadre strength of the establishment whereas
Mr. S.K. Rungta, learned senior counsel (R-1) appearing in person
submitted that accepting the interpretation proposed by the Union of India
will flout the policy of reservation encompassed under Section 33 of the
Act. He further submitted that the High Court has rightly held that the
reservation of 3% for differently abled persons in conformity with the Act
should have to be computed on the basis of the total strength of a cadre
and not just on the basis of the vacancies available in the posts that are
identified for differently abled persons, thereby declaring certain clauses
of the OM dated 29.12.2005 as unacceptable and contrary to the mandate of
Section 33 of the Act.
24) Two aspects of the impugned judgment have been challenged before this
Court:-
(a) The manner of computing 3% reservation for the persons with the
disabilities as per Section 33 of the Act.
(b) Whether post based reservation must be adhered to or vacancy based
reservation.
25) Now let us consider the reasoning of the High Court and the
submissions made by the parties.
26) Primarily, we would like to clarify that there is a sea of difference
in computing reservation on the basis of total cadre strength and on the
basis of total vacancies (both inclusive of identified and unidentified) in
the cadre strength. At the outset, a reference to the impugned OM dated
29.12.2005 would, in unequivocal terms, establish that the matter in
dispute in the given case is whether the latter method of computation of
reservation will uniformly apply to the posts in Group A, B, C and D or
will it be applicable only to Group C and D. The question pertaining to
computation of reservation on the basis of total cadre strength does not
even arise in the given circumstance of the case. However, the High Court,
in the impugned judgment, went on to uphold the view that the computation
of reservation must be on the basis of total cadre strength which is
clearly erroneous on the face of it. Inadvertently, the respondents herein
have also adopted the same line of argument in their oral and written
submissions. As a result, the point for consideration before this Court is
whether the modus of computation of reservation on the basis of total
number of vacancies (both inclusive of identified and unidentified) in the
cadre strength will uniformly apply to Group A, B, C and D or will it be
applicable only to Group C and D.
27) It is the stand of the Union of India that for vivid understanding of
the reservation policy laid down under Section 33 of the Act, it is
essential to read together Sections 32 and 33 of the Act. It was also
submitted that a conjoint reading of the above referred sections, mandates
only reservation of vacancies in the identified posts and not in all the
posts or against the total number of vacancies in the cadre strength.
However, it was also admitted that the computation of reservation is being
done in respect of Group C and D posts on the basis of total number of
vacancies (both inclusive of identified and unidentified) in the cadre
strength since 1977.
In fact, the abovesaid contention has been raised in
Govt. of India through Secretary and Anr. vs. Ravi Prakash Gupta & Anr.
(2010) 7 SCC 626 and, therefore, it is no longer res integra.
28) The question for determination raised in this case is
whether the
reservation provided for the disabled persons under Section 33 of the Act
is dependent upon the identification of posts as stipulated by Section 32.
In the aforementioned case, the Government of India sought to contend that
since they have conducted the exercise of identification of posts in civil
services in terms of Section 32 only in the year 2005, the reservation has
to be computed and applied only with reference to the vacancies filled up
from 2005 onwards and not from 1996 when the Act came into force. This
Court, after examining the inter-dependence of Sections 32 and 33 viz.,
identification of posts and the scheme of reservation, rejected this
contention and held as follows:-
“25. …..The submission made on behalf of the Union of India regarding
the implementation of the provisions of Section 33 of the Disabilities
Act, 1995, only after identification of posts suitable for such
appointment, under Section 32 thereof, runs counter to the legislative
intent with which the Act was enacted. To accept such a submission
would amount to accepting a situation where the provisions of Section
33 of the aforesaid Act could be kept deferred indefinitely by
bureaucratic inaction. Such a stand taken by the petitioners before
the High Court was rightly rejected. Accordingly, the submission made
on behalf of the Union of India that identification of Grade `A' and
`B' posts in the I.A.S. was undertaken after the year 2005 is not of
much substance.
26. As has been pointed out by the High Court, neither Section 32 nor
Section 33 of the aforesaid Act makes any distinction with regard to
Groups A, B, C and D posts. They only speak of identification and
reservation of posts for people with disabilities, though the proviso
to Section 33 does empower the appropriate Government to exempt any
establishment from the provisions of the said Section, having regard
to the type of work carried on in any department or establishment. No
such exemption has been pleaded or brought to our notice on behalf of
the petitioners.
27. It is only logical that, as provided in Section 32 of the
aforesaid Act, posts have to be identified for reservation for the
purposes of Section 33, but such identification was meant to be
simultaneously undertaken with the coming into operation of the Act,
to give effect to the provisions of Section 33. The legislature never
intended the provisions of Section 32 of the Act to be used as a tool
to deny the benefits of Section 33 to these categories of disabled
persons indicated therein. Such a submission strikes at the foundation
of the provisions relating to the duty cast upon the appropriate
Government to make appointments in every establishment.
29. While it cannot be denied that unless posts are identified for the
purposes of Section 33 of the aforesaid Act, no appointments from the
reserved categories contained therein can be made, and that to such
extent the provisions of Section 33 are dependent on Section 32 of the
Act, as submitted by the learned ASG, but the extent of such
dependence would be for the purpose of making appointments and not for
the purpose of making reservation. In other words, reservation under
Section 33 of the Act is not dependent on identification, as urged on
behalf of the Union of India, though a duty has been cast upon the
appropriate Government to make appointments in the number of posts
reserved for the three categories mentioned in Section 33 of the Act
in respect of persons suffering from the disabilities spelt out
therein. In fact, a situation has also been noticed where on account
of non-availability of candidates some of the reserved posts could
remain vacant in a given year. For meeting such eventualities,
provision was made to carry forward such vacancies for two years after
which they would lapse. Since in the instant case such a situation did
not arise and posts were not reserved under Section 33 of the
Disabilities Act, 1995, the question of carrying forward of vacancies
or lapse thereof, does not arise.
31. We, therefore, see no reason to interfere with the judgment of the
High Court impugned in the Special Leave Petition which is,
accordingly, dismissed with costs. All interim orders are vacated. The
petitioners are given eight weeks' time from today to give effect to
the directions of the High Court.”
29) In the light of the above pronouncement, it is clear that the scope
of identification comes into picture only at the time of appointment of a
person in the post identified for disabled persons and is not necessarily
relevant at the time of computing 3% reservation under Section 33 of the
Act.
In succinct, it was held in Ravi Prakash Gupta (supra) that Section 32
of the Act is not a precondition for computation of reservation of 3% under
Section 33 of the Act rather Section 32 is the following effect of Section
33.
30) Apart from the reasoning of this Court in Ravi Prakash Gupta (supra),
even a reading of Section 33, at the outset, establishes vividly the
intention of the legislature viz., reservation of 3% for differently abled
persons should have to be computed on the basis of total vacancies in the
strength of a cadre and not just on the basis of the vacancies available in
the identified posts. There is no ambiguity in the language of Section 33
and from the construction of the said statutory provision only one meaning
is possible.
31) A perusal of Section 33 of the Act reveals that this section has been
divided into three parts. The first part is “every appropriate Government
shall appoint in every establishment such percentage of vacancies not less
than 3% for persons or class of persons with disability.” It is evident
from this part that it mandates every appropriate Government shall appoint
a minimum of 3% vacancies in its establishments for persons with
disabilities. In this light, the contention of the Union of India that
reservation in terms of Section 33 has to be computed against identified
posts only is not tenable by any method of interpretation of this part of
the Section.
32) The second part of this section starts as follows: “…of which one
percent each shall be reserved for persons suffering from blindness or low
vision, hearing impairment & locomotor disability or cerebral palsy in the
posts identified for each disability.” From the above, it is clear that it
deals with distribution of 3% posts in every establishment among 3
categories of disabilities. It starts from the word “of which”. The word
“of which” has to relate to appointing not less than 3% vacancies in an
establishment and, in any way, it does not refer to the identified posts.
In fact, the contention of the Union of India is sought to be justified by
bringing the last portion of the second part of the section viz.
“….identified posts” in this very first part which deals with the statutory
obligation imposed upon the appropriate Government to “appoint not less
than 3% vacancies for the persons or class of persons with disabilities.”
In our considered view, it is not plausible in the light of established
rules of interpretation. The minimum level of representation of persons
with disabilities has been provided in this very first part and the second
part deals with the distribution of this 3% among the three categories of
disabilities. Further, in the last portion of the second part the words
used are “in the identified posts for each disability” and not “of
identified posts”. This can only mean that out of minimum 3% of vacancies
of posts in the establishments 1% each has to be given to each of the 3
categories of disability viz., blind and low vision, hearing impaired and
locomotor disabled or cerebral palsy separately and the number of
appointments equivalent to the 1% for each disability out of total 3% has
to be made against the vacancies in the identified posts. The attempt to
read identified posts in the first part itself and also to read the same to
have any relation with the computation of reservation is completely
misconceived.
33) The third part of the Section is the proviso which reads thus:
“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.” The proviso
also justifies the above said interpretation that the computation of
reservation has to be against the total number vacancies in the cadre
strength and not against the identified posts. Had the legislature intended
to mandate for computation of reservation against the identified posts
only, there was no need for inserting the proviso to Section which empowers
the appropriate Government to exempt any establishment either partly or
fully from the purview of the Section subject to such conditions contained
in the notification to be issued in the Official Gazette in this behalf.
Certainly, the legislature did not intend to give such arbitrary power for
exemption from reservation for persons with disabilities to be exercised by
the appropriate Government when the computation is intended to be made
against the identified posts.
34) In this regard, another provision of the said Act also supports this
interpretation. Section 41 of the said Act mandates the appropriate
Government to frame incentive schemes for employers with a view to ensure
that 5% of their work force is composed of persons with disabilities. The
said section is reproduced hereinbelow:
“41. Incentives to employers to ensure five per cent of the work
force is composed of persons with disabilities.- The appropriate
Government and the local authorities shall, within limits to their
economic capacity and development, provide incentives to employers
both in public and private sectors to ensure that at least five
percent of their work force is composed of persons with disabilities.”
Thus, on a conjoint reading of Sections 33 and 41, it is clear that while
Section 33 provides for a minimum level of representation of 3% in the
establishments of appropriate Government, the legislature intended to
ensure 5% of representation in the entire work force both in public as well
as private sector.
35) Moreover, the intention of the legislature while framing the Act can
also be inferred from the Draft Rights of Persons with Disabilities Bill,
2012, which is pending in the Parliament for approval. In Chapter 6 of the
Bill, viz., Special Provisions for Persons with Benchmark Disabilities,
similar sections like Sections 32 & 33 in the Act have been incorporated
under Sections 38 and 39 which are as under:-
“Section 38. Identification of Posts which can be Reserved for Persons
with Benchmark Disabilities:
Appropriate Governments shall – (a) identify posts in establishments
under them which can be reserved for persons with benchmark disability
as mentioned in section 39;
(b) at periodical intervals not exceeding three years, review and
revise the list of identified posts, taking into consideration
developments in technology.
Section 39. Reservation of Posts for Persons with Benchmark
Disabilities:-
(1) Every appropriate Government shall reserve, in every establishment
under them, not less than 5% of the vacancies meant to be filled by
direct recruitment, for persons or class of persons with benchmark
disability, of which 1% each shall be of all posts reserved for
persons with following disabilities:-
i) blindness & low vision (with reservation of 0.5% of the
vacancies for each of the two disabilities).
ii) hearing impairment & speech impairment.
iii) locomotor disability including cerebral palsy, leprosy cured and
muscular dystrophy.
iv) autism, intellectual disability and mental illness
v) multiple disabilities from among i to iv above including deaf
blindness
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.
(2) If sufficient number of qualified persons with benchmark
disabilities are not available in a particular year, then the
reservation may be carried forward for upto the next three recruitment
years, and if in such succeeding recruitment years also a suitable
person with benchmark disability is not available, then the post in
the fourth year may be first filled by interchange among the
categories of disabilities; and only when there is no person with any
benchmark disability available for the post in that year, the vacancy
may be filled by appointment of a person, other than a person with
benchmark disability.”
A perusal of Sections 38 and 39 of the Bill clarifies all the ambiguities
raised in this appeal. The intention of the legislature is clearly to
reserve in every establishment under the appropriate Government, not less
than 3% of the vacancies for the persons or class of persons with
disability, of which 1% each shall 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.
36) Admittedly, the Act is a social legislation enacted for the benefit
of persons with disabilities and its provisions must be interpreted in
order to fulfill its objective. Besides, it is a settled rule of
interpretation that if the language of a statutory provision is
unambiguous, it has to be interpreted according to the plain meaning of the
said statutory provision. In the present case, the plain and unambiguous
meaning of Section 33 is that every appropriate Government has to appoint a
minimum of 3% vacancies in an establishment out 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 or
cerebral palsy.
37) To illustrate, if there are 100 vacancies of 100 posts in an
establishment, the concerned establishment will have to reserve a minimum
of 3% for persons with disabilities out of which at least 1% has to be
reserved separately for each of the following disabilities: persons
suffering from blindness or low vision, persons suffering from hearing
impairment and the persons suffering from locomotor disability or cerebral
palsy. Appointment of 1 blind person against 1 vacancy reserved for him/her
will be made against a vacancy in an identified post for instance, the post
of peon, which is identified for him in group D. Similarly, one hearing
impaired will be appointed against one reserved vacancy for that category
in the post of store attendant in group D post.
Likewise, one person
suffering from locomotor disability or cerebral palsy will be appointed
against the post of “Farash” group D post identified for that category of
disability. It was argued on behalf of Union of India with reference to the
post of driver that since the said post is not suitable to be manned by a
person suffering from blindness, the above interpretation of the Section
would be against the administrative exigencies. Such an argument is wholly
misconceived. A given post may not be identified as suitable for one
category of disability, the same could be identified as suitable for
another category or categories of disability entitled to the benefit of
reservation. In fact, the second part of the Section has clarified this
situation by providing that the number of vacancies equivalent to 1% for
each of the aforementioned three categories will be filled up by the
respective category by using vacancies in identified posts for each of them
for the purposes of appointment.
38) It has also been submitted on behalf of the appellants herein that
since reservation of persons with disabilities in Group C and D has been in
force prior to the enactment and is being made against the total number of
vacancies in the cadre strength according to the OM dated 29.12.2005 but
the actual import of Section 33 is that it has to be computed against
identified posts only. This argument is also completely misconceived in
view of the plain language of the said Section, as deliberated above. Even,
for the sake of arguments, if we accept that the computation of reservation
in respect of Group C and D posts is against the total vacancies in the
cadre strength because of the applicability of the scheme of reservation in
Group C and D posts prior to enactment, Section 33 does not distinguish the
manner of computation of reservation between Group A and B posts or Group C
and D posts respectively. As such, one statutory provision cannot be
interpreted and applied differently for the same subject matter.
39) Further, if we accept the interpretation contended by the appellants
that computation of reservation has to be against the identified posts
only, it would result into uncertainty of the application of the scheme of
reservation because experience has shown that identification has never been
uniform between the Centre and States and even between the Departments of
any Government. For example, while a post of middle school teacher has been
notified as identified as suitable for the blind and low vision by the
Central Government, it has not been identified as suitable for the blind
and low vision in some States such as Gujarat and J&K etc. This has led to
a series of litigations which have been pending in various High Courts. In
addition, Para 4 of the OM dated 29.12.2005 dealing with the issue of
identification of jobs/posts in sub clause (b) states that list of the
jobs/posts notified by the Ministry of Social Justice & Empowerment is not
exhaustive which further makes the computation of reservation uncertain and
arbitrary in the event of acceptance of the contention raised by the
appellants.
40) Another contention raised by the appellants is that the computation
of reservation against the total vacancies in the cadre strength in Group A
& B will violate the rule of 50% ceiling of reservation in favour of SC, ST
and OBC as laid down by this Court in Indra Sawhney vs. Union of India and
others AIR 1993 SC 477. This contention is also not tenable and is against
the abovesaid judgment. It is difficult to understand as to how the
computation of reservation against total vacancies in the cadre strength in
Group A and B will violate 50% ceiling when its computation on that basis
in Group C and D will not violate the said ceiling. There is no rationale
of distinguishing between the manner of computation of reservation with
regard to Group A and B posts on the one hand and manner of computation of
reservation with regard to Group C and D posts on the other on this ground.
41) A perusal of Indra Sawhney (supra) would reveal that the ceiling of
50% reservation applies only to reservation in favour of other Backward
classes under Article 16(4) of the Constitution of India whereas the
reservation in favour of persons with disabilities is horizontal, which is
under Article 16(1) of the Constitution. In fact, this Court in the said
pronouncement has used the example of 3% reservation in favour of persons
with disabilities while dealing with the rule of 50% ceiling. Para 95 of
the judgment clearly brings out that after selection and appointment of
candidates under reservation for persons with disabilities they will be
placed in the respective rosters of reserved category or open category
respectively on the basis of the category to which they belong and, thus,
the reservation for persons with disabilities per se has nothing to do with
the ceiling of 50%. Para 95 is reproduced as follows:-
“95. ……all 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 inter-locking 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 S.C.
category he will be placed in that quota by making necessary
adjustments; similarly, if he belongs to open competition (O.C.)
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……”
42) Yet another contention raised by the appellants is that the reservation
for persons with disabilities must be vacancy based reservation whereas
Respondent No. 1 herein contended that it must be post based reservation as
laid down by the High Court in the impugned judgment. Respondent No. 1
herein relied upon the heading of Section 33 of the Act, viz., ‘Reservation
of Posts’, to propose the view that the reservation policy contemplated
under Section 33 is post based reservation.
43) It is settled law that while interpreting any provision of a statute
the plain meaning has to be given effect and if language therein is simple
and unambiguous, there is no need to traverse beyond the same. Likewise,
if the language of the relevant section gives a simple meaning and message,
it should be interpreted in such a way and there is no need to give any
weightage to headings of those paragraphs. This aspect has been clarified
in Prakash Nath Khanna & Anr. vs. Commissioner of Income Tax & Anr., (2004)
9 SCC 686. Paragraph 13 of the said judgment is relevant which reads as
under:
“13. It is a well-settled principle in law that the court cannot read
anything into a statutory provision which is plain and unambiguous. A
statute is an edict of the legislature. The language employed in a
statute is the determinative factor of legislative intent. The first
and primary rule of construction is that the intention of the
legislation must be found in the words used by the legislature itself.
The question is not what may be supposed and has been intended but
what has been said. “Statutes should be construed, not as theorems of
Euclid”, Judge Learned Hand said, “but words must be construed with
some imagination of the purposes which lie behind them”. (See Lenigh
Valley Coal Co. v. Yensavage. The view was reiterated in Union of
India v. Filip Tiago De Gama of Vedem Vasco De Gama and Padma Sundara
Rao v. State of T.N..”
44) It is clear that when the provision is plainly worded and
unambiguous, it has to be interpreted in such a way that the Court must
avoid the danger of a prior determination of the meaning of a provision
based on their own preconceived notions of ideological structure or scheme
into which the provision to be interpreted is somewhat fitted. While
interpreting the provisions, the Court only interprets the law and cannot
legislate it. It is the function of the Legislature to amend, modify or
repeal it, if deemed necessary.
45) The heading of a Section or marginal note may be relied upon to clear
any doubt or ambiguity in the interpretation of the provision and to
discern the legislative intent. However, when the Section is clear and
unambiguous, there is no need to traverse beyond those words, hence, the
headings or marginal notes cannot control the meaning of the body of the
section. Therefore, the contention of Respondent No. 1 herein that the
heading of Section 33 of the Act is “Reservation of posts” will not play a
crucial role, when the Section is clear and unambiguous.
46) Further, the respondents heavily relied on a decision of the
Constitution Bench in R.K Sabharwal and others vs. State of Punjab and
others (1995) 2 SCC 745 to substantiate their contention. Para 6 reads as
under:-
“6. The expressions "posts" and "vacancies", often used in the
executive instructions providing for reservations, are rather
problematical. 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 expressions
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.”
47) Adhering to the decision laid by the Constitution Bench in R.K
Sabharwal (supra), the High Court held as follows:-
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-à-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 Others vs state of Punjab and others 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 expressions 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 from 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….”
48) However, the decision in R.K Sabharwal (supra) is not applicable to the
reservation for the persons with disabilities because in the above said
case, the point for consideration was with regard to the implementation of
the scheme of reservation for SC, ST & OBC, which is vertical reservation
whereas reservation in favour of persons with disabilities is horizontal.
We harmonize with the stand taken by the Union of India, the appellant
herein in this regard. Besides, the judgment in R.K Sabharwal (supra) was
pronounced before the date on which the Act came into force, as a
consequence, the intent of the Act must be given priority over the decision
in the above said judgment. Thus, in unequivocal terms, the reservation
policy stipulated in the Act is vacancy based reservation.
Conclusion:
49) Employment is a key factor in the empowerment and inclusion of people
with disabilities. It is an alarming reality that the disabled people are
out of job not because their disability comes in the way of their
functioning rather it is social and practical barriers that prevent them
from joining the workforce. As a result, many disabled people live in
poverty and in deplorable conditions. They are denied the right to make a
useful contribution to their own lives and to the lives of their families
and community.
50) The Union of India, the State Governments as well as the Union
Territories have a categorical obligation under the Constitution of India
and under various International treaties relating to human rights in
general and treaties for disabled persons in particular, to protect the
rights of disabled persons. Even though the Act was enacted way back in
1995, the disabled people have failed to get required benefit until today.
51) Thus, after thoughtful consideration, we are of the view that the
computation of reservation for persons with disabilities has to be computed
in case of Group A, B, C and D posts in an identical manner viz.,
“computing 3% reservation on total number of vacancies in the cadre
strength” which is the intention of the legislature. Accordingly, certain
clauses in the OM dated 29.12.2005, which are contrary to the above
reasoning are struck down and we direct the appropriate Government to issue
new Office Memorandum(s) in consistent with the decision rendered by this
Court.
52) Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, Indra Sawhney (supra) is not applicable with respect to the disabled persons.
53) We also reiterate that the decision in R.K. Sabharwal (supra) is not applicable to the reservation for the persons with disabilities because in the above said case, the point for consideration was with regard to the implementation of the scheme of reservation for SC, ST & OBC, which is
vertical reservation, whereas reservation in favour of persons with disabilities is horizontal.
Directions:
54) In our opinion, in order to ensure proper implementation of the
reservation policy for the disabled and to protect their rights, it is
necessary to issue the following directions:
(i) We hereby direct the appellant herein to issue an appropriate order
modifying the OM dated 29.12.2005 and the subsequent OMs consistent with
this Court’s Order within three months from the date of passing of this
judgment.
(ii) We hereby direct the “appropriate Government” to compute the number
of vacancies available in all the “establishments” and further identify the
posts for disabled persons within a period of three months from today and
implement the same without default.
(iii) The appellant herein shall issue instructions to all the
departments/public sector undertakings/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 Nodal
Officer in department/public sector undertakings/Government companies,
responsible for the proper strict implementation of reservation for person
with disabilities, be departmentally proceeded against for the default.
55) Before parting with the case, we would like to place on record
appreciation for Mr. S.K Rungta, learned senior counsel for rendering
commendable assistance to the Court. The appeal is disposed of with the
above terms.
...…………….…………………………CJI
(P. SATHASIVAM)
.…....…………………………………J.
(RANJANA PRAKASH DESAI)
.…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
OCTOBER 08, 2013.
-----------------------
45
wherein the High Court interpreted Section 33 of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (in short ‘the Act’) and issued various
directions to be complied with by the appellants herein.=
Held that Thus, after thoughtful consideration, we are of the view that the
computation of reservation for persons with disabilities has to be computed
in case of Group A, B, C and D posts in an identical manner viz.,
“computing 3% reservation on total number of vacancies in the cadre
strength” which is the intention of the legislature. Accordingly, certain
clauses in the OM dated 29.12.2005, which are contrary to the above
reasoning are struck down and we direct the appropriate Government to issue
new Office Memorandum(s) in consistent with the decision rendered by this
Court.
Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, Indra Sawhney (supra) is not applicable with respect to the disabled persons.
We also reiterate that the decision in R.K. Sabharwal (supra) is not applicable to the reservation for the persons with disabilities because in the above said case, the point for consideration was with regard to the implementation of the scheme of reservation for SC, ST & OBC, which is vertical reservation, whereas reservation in favour of persons with disabilities is horizontal.
In our opinion, in order to ensure proper implementation of the
reservation policy for the disabled and to protect their rights, it is
necessary to issue the following directions:
(i) We hereby direct the appellant herein to issue an appropriate order
modifying the OM dated 29.12.2005 and the subsequent OMs consistent with
this Court’s Order within three months from the date of passing of this
judgment.
(ii) We hereby direct the “appropriate Government” to compute the number
of vacancies available in all the “establishments” and further identify the
posts for disabled persons within a period of three months from today and
implement the same without default.
(iii) The appellant herein shall issue instructions to all the
departments/public sector undertakings/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 Nodal
Officer in department/public sector undertakings/Government companies,
responsible for the proper strict implementation of reservation for person
with disabilities, be departmentally proceeded against for the default.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
1
2 CIVIL APPEAL NO.9096 OF 2013
3 (Arising out of SLP (Civil) No. 7541 of 2009)
Union of India & Anr. .... Appellant(s)
Versus
National Federation of
the Blind & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, CJI.
1) Leave granted.
2) This appeal is directed against the final judgment and order dated
19.12.2008 passed by the High Court of Delhi at New Delhi in Writ Petition
(C) No. 15828 of 2006 wherein the High Court interpreted Section 33 of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (in short ‘the Act’) and issued various
directions to be complied with by the appellants herein.
3) Brief facts:
(a) National Federation of the Blind-Respondent No. 1 herein is an apex
organization and a society registered under the Societies Registration Act,
1860, having its Head Office at New Delhi and is working for the
protection of the rights of the visually challenged.
(b) In the year 2006, Respondent No. 1 herein filed a writ petition
before the High Court in public interest seeking implementation of Section
33 of the Act alleging that the appellants herein have failed to provide
reservation to the blind and low vision persons and they are virtually
excluded from the process of recruitment to the Government posts as
stipulated under the said Act.
(c) In the above backdrop, it is relevant to mention that way back in
1977, the erstwhile Ministry of Social Welfare, Government of India, made
reservation in favour of the following three categories of disabled persons
in Group C & D posts to the extent of 1 per cent each for the (i) Blind;
(ii) Hearing and Speech Impairment; and (iii) persons suffering from
locomotor disability.
In the year 1986, the Department of Personnel &
Training (DoPT), directed all the departments to take into account both
identified and unidentified posts for working out the total number of
vacancies to be reserved for each of the disabled categories. In spite of
the above said executive order, various government departments and public
sector undertakings did not give effect to the scheme of reservation which
compelled Respondent No. 1 herein to organize a nation wide agitation, as a
result of which, an agreement was arrived at between the parties on
27.08.1987 to undertake a Special Recruitment Drive for clearing up the
backlog of vacancies.
(d) On 07.02.1996, the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 was brought into
force making reservation of at least 3 percent posts in all government
establishments to the extent of 1 per cent each for the persons suffering
from (i) blindness or low vision; (ii) hearing impairment; and (iii)
locomotor disability or cerebral palsy.
After enactment of the said Act,
Union of India issued various orders for ensuring proper implementation of
the provisions of the Act for the persons with disabilities.
(e) Respondent No. 1 herein, by filing the above said petition before the
High Court asserted that despite statutory provisions and various executive
orders, discrimination against the persons with disabilities continued in
filling up the vacancies in various government departments whereas it was
contended by the other side that the Office Memorandum (OM) dated
29.12.2005, issued by the Department of Personnel & Training, inter alia
provides a system for ensuring proper implementation of the provisions of
the Act for the persons with disabilities.
(f) Vide order dated 19.12.2008, the High Court disposed of the petition
directing the Union of India to modify the OM dated 29.12.2005 being
inconsistent with the provisions of Section 33 of the Act and issued
several other directions.
(g) Being aggrieved of the above, the appellants have preferred this
appeal by way of special leave before this Court.
(h) Tamil Nadu Handicapped Federation Charitable Trust, Smt S. Rajeswari
and Association for Physically Challenged People Ordnance Clothing Factory
filed applications for impleadment. Vide order dated 22.07.2011, this
Court did not allow them to implead but to act as intervenors in the
proceedings.
4) Heard Ms. Indra Jaisingh, learned Additional Solicitor General for
the Union of India, Mr. S.K. Rungta, learned senior counsel (R-1) appearing
in person and Mr. R. Prabhakaran, learned counsel for Intervenors.
Submissions:
5) Ms. Indra Jaisingh, learned Additional Solicitor General for the
Union of India, after taking us through various provisions of the Act and
OM(s) issued by the Government of India submitted that the impugned
judgment of the High Court is against the provisions of the Act. She
further pointed out that the finding of the High Court that in terms of
Section 33 of the Act, 3% reservation for the disabled persons has to be
computed on the basis of total strength of the cadre, i.e., both identified
as well as unidentified posts is erroneous. In any event, according to
her, the direction of the High Court to work out backlog vacancies for the
disabled persons on the total cadre strength in different establishments
within one month from the date of the order is impractical and not
executable. It is further highlighted that according to Section 33 of the
Act, reservation to the persons with disabilities in an establishment shall
be 3% of the vacancies arising in the posts which are identified for the
persons with disabilities. The High Court, by the impugned judgment,
disturbed the very basic system of the reservation of posts for the persons
with disabilities. She further highlighted that the reservation for Group
C and D posts is being calculated on the basis of the vacancies in
identified as well as unidentified posts prior to the Act came into
existence and in view of the provisions of Section 72 of the Act, continued
in the same way, however, reservation for Group A and B posts is being
calculated on the basis of the vacancies for identified posts as per the
provisions of the Act.
6) On the other hand, Mr. S.K. Rungta, learned senior counsel (R-1)
appearing in person submitted that in terms of the provisions of the Act,
more particularly, Sections 32 and 33 of the Act, it is obligatory on the
part of the Government establishments to provide at least 3% reservation of
posts in the total cadre strength and not in the identified vacancies. He
further pointed out that though the Act was passed in 1995 since then the
provisions have not been strictly implemented. He prayed for further time
bound direction for implementation of the same.
7) Mr. R. Prabhakaran, learned counsel for intervenors reiterated the
submissions made by Mr. S.K. Rungta.
8) We have perused all the relevant materials and considered the rival
submissions.
Relevant Provisions:
9) In order to answer the rival contentions, it is desirable to quote
the relevant provision of the Act. Sections 2(a), 2(i), 2(j) and 2(k) of
the Act read as under:
“2(a) “appropriate Government” means,-
i) in relation to the Central Government or any establishment
wholly or substantially financed by that Government, or a
Cantonment Board constituted under the Cantonment Act, 1924 (2
of 1924), the Central Government;
ii) in relation to a State Government or any establishment wholly or
substantially financed by that Government or any local
authority, other than a Cantonment Board, the State Government;
iii) in respect of the Central Co-ordination Committee and the
Central Executive Committee, the Central Government;
iv) in respect of the State Co-ordination Committee and the State
Executive Committee, the State Government;
2(i) "Disability" means-
i) blindness;
ii) low vision;
iii) leprosy-cured;
iv) hearing impairment;
v) locomotor disability;
vi) mental retardation;
vii) mental illness;
2(j) "employer" means,-
i) in relation to a Government, the authority notified by the
Head of the Department in this behalf or where no such
authority is notified, the Head of the Department; and
ii) in relation to an establishment, the Chief Executive Officer
of that establishment;
2(k) "establishment" means 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 a local authority or a
Government company as defined in section 617 of the Companies Act,
1956 (1 of 1956) and includes Departments of a Government;”
10) Among the above definitions, we are more concerned with the
definition of “establishment” under Section 2(k) of the Act, which is an
exhaustive definition and covers (i) a corporation established by or under
a Central, Provincial or State Act, or (ii) an authority or a body owned or
controlled or aided by the Government or a local authority, or (iii) a
Government company as defined in Section 617 of the Companies Act, 1956 and
(iv) Departments of a Government.
11) Chapter VI of the Act deals with the employment of persons with
disabilities. The relevant Sections of the said Chapter are as under:-
“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) locomotor disability or cerebral palsy,
in the posts identified for each disability:
Provided that the appropriate Government may, having regard to
the type of work carried on in any department or establishment, by
notification subject to such conditions, if any, as may be specified
in such notification, exempt any establishment from the provisions of
this section.
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 in 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.”
12) In exercise of the powers conferred by sub-sections (1) and (2) of
Section 73 of the Act, the Central Government enacted the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Rules, 1996.
13) After enactment of the above Act, in order to consolidate the
existing instructions in line with the provisions of the Act, on
29.12.2005, Government of India, Department of Personnel and Training,
issued certain instructions by way of an Office Memorandum (OM), with
regard to the reservation for the persons with disabilities (physically
handicapped persons) in posts and services. The said Office Memorandum
specifically states that it shall supersede all previous instructions
issued on the subject so far.
Respondent No. 1 herein has commended
various clauses of the OM dated 29.12.2005. The relevant clauses of the
same are extracted hereinbelow:
“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.
3. EXEMPTION FROM RESERVATION:
If any Department/Ministry considers it necessary to exempt any
establishment partly or fully from the provisions of reservation for
persons with disabilities of which one percent 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, it may make a reference to the
Ministry of Social Justice and Employment giving full justification
for the proposal. The grant of exemption shall be considered by an
Inter-Departmental Committee set up by the Ministry of Social Justice
and Empowerment.
4. IDENTIFICATION OF JOBS/POSTS:
The Ministry of Social Justice and Empowerment have identified the
jobs/posts suitable to be held by persons with disabilities and the
physical requirement for all such jobs/posts vide their notification
no. 16-25/99.NII dated 31.5.2001. The jobs/posts given in Annexure II
of the said notification as amended from time to time shall be used to
give effect to 3 per cent reservation to the persons with
disabilities. It may, however, be noted that:
(a) The nomenclature used for any job/post shall mean and include
nomenclature used for other comparable jobs/posts having identical
functions.
(b) The list of jobs/posts notified by the Ministry of Social
Justice & Empowerment is not exhaustive. The concerned
Ministries/Departments shall have the discretion to identify
jobs/posts in addition to the jobs/posts already identified by the
Ministry of Social Justice & Empowerment. However, no
Ministry/Department/Establishment shall exclude any identified
job/post from the purview of reservation at its own discretion.
(c) If a job/post identified for persons with disabilities is
shifted from one group or grade to another group or grade due to
change in the pay-scale or otherwise, the job/post shall remain
identified.
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. Similarly, all vacancies in promotion quota
shall be taken into account while computing reservation in promotion
in Group C and 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 posts in the establishment. The
same method of computation applies for Group B posts.
15. EFFECTING RESERVATION - MAINTENANCE OF ROSTERS:
(a) all establishments 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 considers it
desirable not to fill 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 persons 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. Likewise two separate
rosters shall be maintained for Group D posts, one for the posts
filled by direct recruitment and another for posts filled by
promotion.
(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 persons 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.”
14) Clauses 21 and 22 of the said OM enable the Government for relaxation
in age limit as well as standard of suitability.
15) After the OM dated 29.12.2005, based on the representations made by
Respondent No. 1 herein, another OM dated 26.04.2006 came to be issued.
The details and the directions contained in the said OM are as follows:
“Dated the 26th April, 2006
OFFICE MEMORANDUM
Sub: Reservation for the Persons with Disabilities
The undersigned is directed to say that the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 which came into existence on 01.01.1996
provides for reservation for persons with disability in the posts
identified for three categories of disabilities namely (i) blindness
or low vision, (ii) hearing impairment and (iii) locomotor disability
or cerebral palsy. Instructions have also been issued by this
Department for providing reservation for such persons. In spite of the
Act and the instructions of this Department, vacancies were not
earmarked reserved or were not filled by reservation in some
establishments.
2. The matter has been considered carefully and it has been decided
that reservation for persons with disabilities should be implemented
in right earnest and there should be no deviation from the scheme of
reservation, particularly after the Act came into effect. 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.
3. It has been observed that some recruiting agencies declare in their
advertisements that blind/partially blind candidates need not apply
and that separate examinations would be conducted for visually
handicapped candidates. Attention is invited to para 7 of this
Department's O.M. No. 36035/3/2004-Estt (Res) dated 29.12.2005 which
provides that persons with disabilities selected on their own merit
will not be adjusted against the reserved share of vacancies. It means
that persons with disabilities who are selected on their own merit
have to be adjusted against the unreserved vacancies and reservation
has to be given in addition. If visually handicapped candidates or any
other category of handicapped candidates are debarred from applying on
the ground that a separate examination would be conducted for them,
chances of handicapped candidates being selected on their own merit
would be eliminated. Thus, debarring of any category of handicapped
candidates in the above manner is against the provisions contained in
the aforesaid O.M. It is, therefore, requested that persons with
disabilities should not be debarred from applying for the posts
identified suitable for them and should be provided opportunity to
compete for the unreserved vacancies as well by holding a common
examination.
4. Contents of this O.M. may be brought to the notice of all
concerned.
Sd/-
(K.G.Verma)
Deputy Secretary to the Govt. of India”
16) Another OM dated 10.12.2008, issued by the Department of Personnel
and Training, was also brought to our notice whereunder a Special
Recruitment Drive to fill up the backlog reserved vacancies for the persons
with disabilities was initiated. The said OM mainly speaks about filling
up of “backlog reserved vacancies”. Relevant portion of the said OM is
extracted hereinbelow:
“Dated the 10th December, 2008
OFFICE MEMORANDUM
Sub: Special Recruitment Drive to fill up the backlog reserved
vacancies for Persons with Disabilities
The undersigned is directed to say that this Department's O.M.
No. 36035/3/2004-Estt(Res) dated 29.12.2005 provides that 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 is not filled and is carried
forward as a 'backlog reserved vacancy' to the subsequent recruitment
year. In the subsequent recruitment year, the 'backlog reserved
vacancy' is treated as reserved for the category of disability for
which it was kept reserved in the initial year of recruitment and
filled as such. However, if a suitable person with that disability is
not available in the subsequent recruitment also, it may be filled by
interchange among the three categories of disabilities, failing which
by appointment of a person other than a person with disability. It
may, thus, be seen that if a vacancy is earmarked reserved for any
category of disability and a suitable person with that disability is
not available to fill it up in the initial year of recruitment, it
becomes a 'backlog reserved vacancy' for first subsequent recruitment
year.
2. As per instructions existing prior to issue of O.M. dated
29.12.2005, if in any year, suitable physically handicapped candidates
were not available to fill up a reserved vacancy, the vacancy was
filled by an other category candidate and reservation was carried
forward for a period of upto three recruitment years. In the event of
non-availability of suitable persons with disabilities, the reserved
vacancies were not kept unfilled. Thus there was no provision of
backlog reserved vacancies of persons with disabilities prior to
29.12.2005. Nevertheless, it is possible that some
Ministries/Departments/ establishments might have kept some vacancies
earmarked reserved for the persons with disability unfilled due to non-
availability of persons with disability. If there exist such
vacancies, these will be treated as backlog reserved vacancies for the
current recruitment year”
17) By issuing such directions, the Department of Personnel and Training
directed all the Ministries/Departments to launch a Special Recruitment
Drive and fixed target dates for fulfilling various stages.
Discussion:
18) In the light of the above statutory provisions as well as various
clauses of the OM dated 29.12.2005, let us analyze whether the High Court
was justified in passing the impugned judgment.
19) Before adverting to the rival contentions submitted by the appellants
and the respondents, it is relevant to comprehend the background and the
objective of the Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995.
20) India as a welfare State is committed to promote overall development
of its citizens including those who are differently abled in order to
enable them to lead a life of dignity, equality, freedom and justice as
mandated by the Constitution of India. The roots of statutory provisions
for ensuring equality and equalization of opportunities to the differently
abled citizens in our country could be traced in Part III and Part IV of
the Constitution. For the persons with disabilities, the changing world
offers more new opportunities owing to technological advancement, however,
the actual limitation surfaces only when they are not provided with equal
opportunities. Therefore, bringing them in the society based on their
capabilities is the need of the hour.
21) Although, the Disability Rights Movement in India commenced way back
in 1977, of which Respondent No. 1 herein was an active participant, it
acquired the requisite sanction only at the launch of the Asian and Pacific
Decade of Disabled Persons in 1993-2002, which gave a definite boost to the
movement. The main need that emerged from the meet was for a comprehensive
legislation to protect the rights of persons with disabilities. In this
light, the crucial legislation was enacted in 1995 viz., the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 which empowers persons with disabilities and
ensures protection of their rights. The Act, in addition to its other
prospects, also seeks for better employment opportunities to persons with
disabilities by way of reservation of posts and establishment of a Special
Employment Exchange for them.
22) For the same, Section 32 of the Act stipulates for identification of
posts which can be reserved for persons with disabilities. Section 33
provides for reservation of posts and Section 36 thereof provides that in
case a vacancy is not filled up due to non-availability of a suitable
person with disability, in any recruitment year such vacancy is to be
carried forward in the succeeding recruitment year. The difference of
opinion between the appellants and the respondents arises on the point of
interpretation of these sections.
23) It is the stand of the Union of India that the Act provides for only
3% reservation in the vacancies in the posts identified for the disabled
persons and not on the total cadre strength of the establishment whereas
Mr. S.K. Rungta, learned senior counsel (R-1) appearing in person
submitted that accepting the interpretation proposed by the Union of India
will flout the policy of reservation encompassed under Section 33 of the
Act. He further submitted that the High Court has rightly held that the
reservation of 3% for differently abled persons in conformity with the Act
should have to be computed on the basis of the total strength of a cadre
and not just on the basis of the vacancies available in the posts that are
identified for differently abled persons, thereby declaring certain clauses
of the OM dated 29.12.2005 as unacceptable and contrary to the mandate of
Section 33 of the Act.
24) Two aspects of the impugned judgment have been challenged before this
Court:-
(a) The manner of computing 3% reservation for the persons with the
disabilities as per Section 33 of the Act.
(b) Whether post based reservation must be adhered to or vacancy based
reservation.
25) Now let us consider the reasoning of the High Court and the
submissions made by the parties.
26) Primarily, we would like to clarify that there is a sea of difference
in computing reservation on the basis of total cadre strength and on the
basis of total vacancies (both inclusive of identified and unidentified) in
the cadre strength. At the outset, a reference to the impugned OM dated
29.12.2005 would, in unequivocal terms, establish that the matter in
dispute in the given case is whether the latter method of computation of
reservation will uniformly apply to the posts in Group A, B, C and D or
will it be applicable only to Group C and D. The question pertaining to
computation of reservation on the basis of total cadre strength does not
even arise in the given circumstance of the case. However, the High Court,
in the impugned judgment, went on to uphold the view that the computation
of reservation must be on the basis of total cadre strength which is
clearly erroneous on the face of it. Inadvertently, the respondents herein
have also adopted the same line of argument in their oral and written
submissions. As a result, the point for consideration before this Court is
whether the modus of computation of reservation on the basis of total
number of vacancies (both inclusive of identified and unidentified) in the
cadre strength will uniformly apply to Group A, B, C and D or will it be
applicable only to Group C and D.
27) It is the stand of the Union of India that for vivid understanding of
the reservation policy laid down under Section 33 of the Act, it is
essential to read together Sections 32 and 33 of the Act. It was also
submitted that a conjoint reading of the above referred sections, mandates
only reservation of vacancies in the identified posts and not in all the
posts or against the total number of vacancies in the cadre strength.
However, it was also admitted that the computation of reservation is being
done in respect of Group C and D posts on the basis of total number of
vacancies (both inclusive of identified and unidentified) in the cadre
strength since 1977.
In fact, the abovesaid contention has been raised in
Govt. of India through Secretary and Anr. vs. Ravi Prakash Gupta & Anr.
(2010) 7 SCC 626 and, therefore, it is no longer res integra.
28) The question for determination raised in this case is
whether the
reservation provided for the disabled persons under Section 33 of the Act
is dependent upon the identification of posts as stipulated by Section 32.
In the aforementioned case, the Government of India sought to contend that
since they have conducted the exercise of identification of posts in civil
services in terms of Section 32 only in the year 2005, the reservation has
to be computed and applied only with reference to the vacancies filled up
from 2005 onwards and not from 1996 when the Act came into force. This
Court, after examining the inter-dependence of Sections 32 and 33 viz.,
identification of posts and the scheme of reservation, rejected this
contention and held as follows:-
“25. …..The submission made on behalf of the Union of India regarding
the implementation of the provisions of Section 33 of the Disabilities
Act, 1995, only after identification of posts suitable for such
appointment, under Section 32 thereof, runs counter to the legislative
intent with which the Act was enacted. To accept such a submission
would amount to accepting a situation where the provisions of Section
33 of the aforesaid Act could be kept deferred indefinitely by
bureaucratic inaction. Such a stand taken by the petitioners before
the High Court was rightly rejected. Accordingly, the submission made
on behalf of the Union of India that identification of Grade `A' and
`B' posts in the I.A.S. was undertaken after the year 2005 is not of
much substance.
26. As has been pointed out by the High Court, neither Section 32 nor
Section 33 of the aforesaid Act makes any distinction with regard to
Groups A, B, C and D posts. They only speak of identification and
reservation of posts for people with disabilities, though the proviso
to Section 33 does empower the appropriate Government to exempt any
establishment from the provisions of the said Section, having regard
to the type of work carried on in any department or establishment. No
such exemption has been pleaded or brought to our notice on behalf of
the petitioners.
27. It is only logical that, as provided in Section 32 of the
aforesaid Act, posts have to be identified for reservation for the
purposes of Section 33, but such identification was meant to be
simultaneously undertaken with the coming into operation of the Act,
to give effect to the provisions of Section 33. The legislature never
intended the provisions of Section 32 of the Act to be used as a tool
to deny the benefits of Section 33 to these categories of disabled
persons indicated therein. Such a submission strikes at the foundation
of the provisions relating to the duty cast upon the appropriate
Government to make appointments in every establishment.
29. While it cannot be denied that unless posts are identified for the
purposes of Section 33 of the aforesaid Act, no appointments from the
reserved categories contained therein can be made, and that to such
extent the provisions of Section 33 are dependent on Section 32 of the
Act, as submitted by the learned ASG, but the extent of such
dependence would be for the purpose of making appointments and not for
the purpose of making reservation. In other words, reservation under
Section 33 of the Act is not dependent on identification, as urged on
behalf of the Union of India, though a duty has been cast upon the
appropriate Government to make appointments in the number of posts
reserved for the three categories mentioned in Section 33 of the Act
in respect of persons suffering from the disabilities spelt out
therein. In fact, a situation has also been noticed where on account
of non-availability of candidates some of the reserved posts could
remain vacant in a given year. For meeting such eventualities,
provision was made to carry forward such vacancies for two years after
which they would lapse. Since in the instant case such a situation did
not arise and posts were not reserved under Section 33 of the
Disabilities Act, 1995, the question of carrying forward of vacancies
or lapse thereof, does not arise.
31. We, therefore, see no reason to interfere with the judgment of the
High Court impugned in the Special Leave Petition which is,
accordingly, dismissed with costs. All interim orders are vacated. The
petitioners are given eight weeks' time from today to give effect to
the directions of the High Court.”
29) In the light of the above pronouncement, it is clear that the scope
of identification comes into picture only at the time of appointment of a
person in the post identified for disabled persons and is not necessarily
relevant at the time of computing 3% reservation under Section 33 of the
Act.
In succinct, it was held in Ravi Prakash Gupta (supra) that Section 32
of the Act is not a precondition for computation of reservation of 3% under
Section 33 of the Act rather Section 32 is the following effect of Section
33.
30) Apart from the reasoning of this Court in Ravi Prakash Gupta (supra),
even a reading of Section 33, at the outset, establishes vividly the
intention of the legislature viz., reservation of 3% for differently abled
persons should have to be computed on the basis of total vacancies in the
strength of a cadre and not just on the basis of the vacancies available in
the identified posts. There is no ambiguity in the language of Section 33
and from the construction of the said statutory provision only one meaning
is possible.
31) A perusal of Section 33 of the Act reveals that this section has been
divided into three parts. The first part is “every appropriate Government
shall appoint in every establishment such percentage of vacancies not less
than 3% for persons or class of persons with disability.” It is evident
from this part that it mandates every appropriate Government shall appoint
a minimum of 3% vacancies in its establishments for persons with
disabilities. In this light, the contention of the Union of India that
reservation in terms of Section 33 has to be computed against identified
posts only is not tenable by any method of interpretation of this part of
the Section.
32) The second part of this section starts as follows: “…of which one
percent each shall be reserved for persons suffering from blindness or low
vision, hearing impairment & locomotor disability or cerebral palsy in the
posts identified for each disability.” From the above, it is clear that it
deals with distribution of 3% posts in every establishment among 3
categories of disabilities. It starts from the word “of which”. The word
“of which” has to relate to appointing not less than 3% vacancies in an
establishment and, in any way, it does not refer to the identified posts.
In fact, the contention of the Union of India is sought to be justified by
bringing the last portion of the second part of the section viz.
“….identified posts” in this very first part which deals with the statutory
obligation imposed upon the appropriate Government to “appoint not less
than 3% vacancies for the persons or class of persons with disabilities.”
In our considered view, it is not plausible in the light of established
rules of interpretation. The minimum level of representation of persons
with disabilities has been provided in this very first part and the second
part deals with the distribution of this 3% among the three categories of
disabilities. Further, in the last portion of the second part the words
used are “in the identified posts for each disability” and not “of
identified posts”. This can only mean that out of minimum 3% of vacancies
of posts in the establishments 1% each has to be given to each of the 3
categories of disability viz., blind and low vision, hearing impaired and
locomotor disabled or cerebral palsy separately and the number of
appointments equivalent to the 1% for each disability out of total 3% has
to be made against the vacancies in the identified posts. The attempt to
read identified posts in the first part itself and also to read the same to
have any relation with the computation of reservation is completely
misconceived.
33) The third part of the Section is the proviso which reads thus:
“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.” The proviso
also justifies the above said interpretation that the computation of
reservation has to be against the total number vacancies in the cadre
strength and not against the identified posts. Had the legislature intended
to mandate for computation of reservation against the identified posts
only, there was no need for inserting the proviso to Section which empowers
the appropriate Government to exempt any establishment either partly or
fully from the purview of the Section subject to such conditions contained
in the notification to be issued in the Official Gazette in this behalf.
Certainly, the legislature did not intend to give such arbitrary power for
exemption from reservation for persons with disabilities to be exercised by
the appropriate Government when the computation is intended to be made
against the identified posts.
34) In this regard, another provision of the said Act also supports this
interpretation. Section 41 of the said Act mandates the appropriate
Government to frame incentive schemes for employers with a view to ensure
that 5% of their work force is composed of persons with disabilities. The
said section is reproduced hereinbelow:
“41. Incentives to employers to ensure five per cent of the work
force is composed of persons with disabilities.- The appropriate
Government and the local authorities shall, within limits to their
economic capacity and development, provide incentives to employers
both in public and private sectors to ensure that at least five
percent of their work force is composed of persons with disabilities.”
Thus, on a conjoint reading of Sections 33 and 41, it is clear that while
Section 33 provides for a minimum level of representation of 3% in the
establishments of appropriate Government, the legislature intended to
ensure 5% of representation in the entire work force both in public as well
as private sector.
35) Moreover, the intention of the legislature while framing the Act can
also be inferred from the Draft Rights of Persons with Disabilities Bill,
2012, which is pending in the Parliament for approval. In Chapter 6 of the
Bill, viz., Special Provisions for Persons with Benchmark Disabilities,
similar sections like Sections 32 & 33 in the Act have been incorporated
under Sections 38 and 39 which are as under:-
“Section 38. Identification of Posts which can be Reserved for Persons
with Benchmark Disabilities:
Appropriate Governments shall – (a) identify posts in establishments
under them which can be reserved for persons with benchmark disability
as mentioned in section 39;
(b) at periodical intervals not exceeding three years, review and
revise the list of identified posts, taking into consideration
developments in technology.
Section 39. Reservation of Posts for Persons with Benchmark
Disabilities:-
(1) Every appropriate Government shall reserve, in every establishment
under them, not less than 5% of the vacancies meant to be filled by
direct recruitment, for persons or class of persons with benchmark
disability, of which 1% each shall be of all posts reserved for
persons with following disabilities:-
i) blindness & low vision (with reservation of 0.5% of the
vacancies for each of the two disabilities).
ii) hearing impairment & speech impairment.
iii) locomotor disability including cerebral palsy, leprosy cured and
muscular dystrophy.
iv) autism, intellectual disability and mental illness
v) multiple disabilities from among i to iv above including deaf
blindness
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.
(2) If sufficient number of qualified persons with benchmark
disabilities are not available in a particular year, then the
reservation may be carried forward for upto the next three recruitment
years, and if in such succeeding recruitment years also a suitable
person with benchmark disability is not available, then the post in
the fourth year may be first filled by interchange among the
categories of disabilities; and only when there is no person with any
benchmark disability available for the post in that year, the vacancy
may be filled by appointment of a person, other than a person with
benchmark disability.”
A perusal of Sections 38 and 39 of the Bill clarifies all the ambiguities
raised in this appeal. The intention of the legislature is clearly to
reserve in every establishment under the appropriate Government, not less
than 3% of the vacancies for the persons or class of persons with
disability, of which 1% each shall 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.
36) Admittedly, the Act is a social legislation enacted for the benefit
of persons with disabilities and its provisions must be interpreted in
order to fulfill its objective. Besides, it is a settled rule of
interpretation that if the language of a statutory provision is
unambiguous, it has to be interpreted according to the plain meaning of the
said statutory provision. In the present case, the plain and unambiguous
meaning of Section 33 is that every appropriate Government has to appoint a
minimum of 3% vacancies in an establishment out 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 or
cerebral palsy.
37) To illustrate, if there are 100 vacancies of 100 posts in an
establishment, the concerned establishment will have to reserve a minimum
of 3% for persons with disabilities out of which at least 1% has to be
reserved separately for each of the following disabilities: persons
suffering from blindness or low vision, persons suffering from hearing
impairment and the persons suffering from locomotor disability or cerebral
palsy. Appointment of 1 blind person against 1 vacancy reserved for him/her
will be made against a vacancy in an identified post for instance, the post
of peon, which is identified for him in group D. Similarly, one hearing
impaired will be appointed against one reserved vacancy for that category
in the post of store attendant in group D post.
Likewise, one person
suffering from locomotor disability or cerebral palsy will be appointed
against the post of “Farash” group D post identified for that category of
disability. It was argued on behalf of Union of India with reference to the
post of driver that since the said post is not suitable to be manned by a
person suffering from blindness, the above interpretation of the Section
would be against the administrative exigencies. Such an argument is wholly
misconceived. A given post may not be identified as suitable for one
category of disability, the same could be identified as suitable for
another category or categories of disability entitled to the benefit of
reservation. In fact, the second part of the Section has clarified this
situation by providing that the number of vacancies equivalent to 1% for
each of the aforementioned three categories will be filled up by the
respective category by using vacancies in identified posts for each of them
for the purposes of appointment.
38) It has also been submitted on behalf of the appellants herein that
since reservation of persons with disabilities in Group C and D has been in
force prior to the enactment and is being made against the total number of
vacancies in the cadre strength according to the OM dated 29.12.2005 but
the actual import of Section 33 is that it has to be computed against
identified posts only. This argument is also completely misconceived in
view of the plain language of the said Section, as deliberated above. Even,
for the sake of arguments, if we accept that the computation of reservation
in respect of Group C and D posts is against the total vacancies in the
cadre strength because of the applicability of the scheme of reservation in
Group C and D posts prior to enactment, Section 33 does not distinguish the
manner of computation of reservation between Group A and B posts or Group C
and D posts respectively. As such, one statutory provision cannot be
interpreted and applied differently for the same subject matter.
39) Further, if we accept the interpretation contended by the appellants
that computation of reservation has to be against the identified posts
only, it would result into uncertainty of the application of the scheme of
reservation because experience has shown that identification has never been
uniform between the Centre and States and even between the Departments of
any Government. For example, while a post of middle school teacher has been
notified as identified as suitable for the blind and low vision by the
Central Government, it has not been identified as suitable for the blind
and low vision in some States such as Gujarat and J&K etc. This has led to
a series of litigations which have been pending in various High Courts. In
addition, Para 4 of the OM dated 29.12.2005 dealing with the issue of
identification of jobs/posts in sub clause (b) states that list of the
jobs/posts notified by the Ministry of Social Justice & Empowerment is not
exhaustive which further makes the computation of reservation uncertain and
arbitrary in the event of acceptance of the contention raised by the
appellants.
40) Another contention raised by the appellants is that the computation
of reservation against the total vacancies in the cadre strength in Group A
& B will violate the rule of 50% ceiling of reservation in favour of SC, ST
and OBC as laid down by this Court in Indra Sawhney vs. Union of India and
others AIR 1993 SC 477. This contention is also not tenable and is against
the abovesaid judgment. It is difficult to understand as to how the
computation of reservation against total vacancies in the cadre strength in
Group A and B will violate 50% ceiling when its computation on that basis
in Group C and D will not violate the said ceiling. There is no rationale
of distinguishing between the manner of computation of reservation with
regard to Group A and B posts on the one hand and manner of computation of
reservation with regard to Group C and D posts on the other on this ground.
41) A perusal of Indra Sawhney (supra) would reveal that the ceiling of
50% reservation applies only to reservation in favour of other Backward
classes under Article 16(4) of the Constitution of India whereas the
reservation in favour of persons with disabilities is horizontal, which is
under Article 16(1) of the Constitution. In fact, this Court in the said
pronouncement has used the example of 3% reservation in favour of persons
with disabilities while dealing with the rule of 50% ceiling. Para 95 of
the judgment clearly brings out that after selection and appointment of
candidates under reservation for persons with disabilities they will be
placed in the respective rosters of reserved category or open category
respectively on the basis of the category to which they belong and, thus,
the reservation for persons with disabilities per se has nothing to do with
the ceiling of 50%. Para 95 is reproduced as follows:-
“95. ……all 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 inter-locking 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 S.C.
category he will be placed in that quota by making necessary
adjustments; similarly, if he belongs to open competition (O.C.)
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……”
42) Yet another contention raised by the appellants is that the reservation
for persons with disabilities must be vacancy based reservation whereas
Respondent No. 1 herein contended that it must be post based reservation as
laid down by the High Court in the impugned judgment. Respondent No. 1
herein relied upon the heading of Section 33 of the Act, viz., ‘Reservation
of Posts’, to propose the view that the reservation policy contemplated
under Section 33 is post based reservation.
43) It is settled law that while interpreting any provision of a statute
the plain meaning has to be given effect and if language therein is simple
and unambiguous, there is no need to traverse beyond the same. Likewise,
if the language of the relevant section gives a simple meaning and message,
it should be interpreted in such a way and there is no need to give any
weightage to headings of those paragraphs. This aspect has been clarified
in Prakash Nath Khanna & Anr. vs. Commissioner of Income Tax & Anr., (2004)
9 SCC 686. Paragraph 13 of the said judgment is relevant which reads as
under:
“13. It is a well-settled principle in law that the court cannot read
anything into a statutory provision which is plain and unambiguous. A
statute is an edict of the legislature. The language employed in a
statute is the determinative factor of legislative intent. The first
and primary rule of construction is that the intention of the
legislation must be found in the words used by the legislature itself.
The question is not what may be supposed and has been intended but
what has been said. “Statutes should be construed, not as theorems of
Euclid”, Judge Learned Hand said, “but words must be construed with
some imagination of the purposes which lie behind them”. (See Lenigh
Valley Coal Co. v. Yensavage. The view was reiterated in Union of
India v. Filip Tiago De Gama of Vedem Vasco De Gama and Padma Sundara
Rao v. State of T.N..”
44) It is clear that when the provision is plainly worded and
unambiguous, it has to be interpreted in such a way that the Court must
avoid the danger of a prior determination of the meaning of a provision
based on their own preconceived notions of ideological structure or scheme
into which the provision to be interpreted is somewhat fitted. While
interpreting the provisions, the Court only interprets the law and cannot
legislate it. It is the function of the Legislature to amend, modify or
repeal it, if deemed necessary.
45) The heading of a Section or marginal note may be relied upon to clear
any doubt or ambiguity in the interpretation of the provision and to
discern the legislative intent. However, when the Section is clear and
unambiguous, there is no need to traverse beyond those words, hence, the
headings or marginal notes cannot control the meaning of the body of the
section. Therefore, the contention of Respondent No. 1 herein that the
heading of Section 33 of the Act is “Reservation of posts” will not play a
crucial role, when the Section is clear and unambiguous.
46) Further, the respondents heavily relied on a decision of the
Constitution Bench in R.K Sabharwal and others vs. State of Punjab and
others (1995) 2 SCC 745 to substantiate their contention. Para 6 reads as
under:-
“6. The expressions "posts" and "vacancies", often used in the
executive instructions providing for reservations, are rather
problematical. 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 expressions
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.”
47) Adhering to the decision laid by the Constitution Bench in R.K
Sabharwal (supra), the High Court held as follows:-
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-à-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 Others vs state of Punjab and others 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 expressions 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 from 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….”
48) However, the decision in R.K Sabharwal (supra) is not applicable to the
reservation for the persons with disabilities because in the above said
case, the point for consideration was with regard to the implementation of
the scheme of reservation for SC, ST & OBC, which is vertical reservation
whereas reservation in favour of persons with disabilities is horizontal.
We harmonize with the stand taken by the Union of India, the appellant
herein in this regard. Besides, the judgment in R.K Sabharwal (supra) was
pronounced before the date on which the Act came into force, as a
consequence, the intent of the Act must be given priority over the decision
in the above said judgment. Thus, in unequivocal terms, the reservation
policy stipulated in the Act is vacancy based reservation.
Conclusion:
49) Employment is a key factor in the empowerment and inclusion of people
with disabilities. It is an alarming reality that the disabled people are
out of job not because their disability comes in the way of their
functioning rather it is social and practical barriers that prevent them
from joining the workforce. As a result, many disabled people live in
poverty and in deplorable conditions. They are denied the right to make a
useful contribution to their own lives and to the lives of their families
and community.
50) The Union of India, the State Governments as well as the Union
Territories have a categorical obligation under the Constitution of India
and under various International treaties relating to human rights in
general and treaties for disabled persons in particular, to protect the
rights of disabled persons. Even though the Act was enacted way back in
1995, the disabled people have failed to get required benefit until today.
51) Thus, after thoughtful consideration, we are of the view that the
computation of reservation for persons with disabilities has to be computed
in case of Group A, B, C and D posts in an identical manner viz.,
“computing 3% reservation on total number of vacancies in the cadre
strength” which is the intention of the legislature. Accordingly, certain
clauses in the OM dated 29.12.2005, which are contrary to the above
reasoning are struck down and we direct the appropriate Government to issue
new Office Memorandum(s) in consistent with the decision rendered by this
Court.
52) Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, Indra Sawhney (supra) is not applicable with respect to the disabled persons.
53) We also reiterate that the decision in R.K. Sabharwal (supra) is not applicable to the reservation for the persons with disabilities because in the above said case, the point for consideration was with regard to the implementation of the scheme of reservation for SC, ST & OBC, which is
vertical reservation, whereas reservation in favour of persons with disabilities is horizontal.
Directions:
54) In our opinion, in order to ensure proper implementation of the
reservation policy for the disabled and to protect their rights, it is
necessary to issue the following directions:
(i) We hereby direct the appellant herein to issue an appropriate order
modifying the OM dated 29.12.2005 and the subsequent OMs consistent with
this Court’s Order within three months from the date of passing of this
judgment.
(ii) We hereby direct the “appropriate Government” to compute the number
of vacancies available in all the “establishments” and further identify the
posts for disabled persons within a period of three months from today and
implement the same without default.
(iii) The appellant herein shall issue instructions to all the
departments/public sector undertakings/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 Nodal
Officer in department/public sector undertakings/Government companies,
responsible for the proper strict implementation of reservation for person
with disabilities, be departmentally proceeded against for the default.
55) Before parting with the case, we would like to place on record
appreciation for Mr. S.K Rungta, learned senior counsel for rendering
commendable assistance to the Court. The appeal is disposed of with the
above terms.
...…………….…………………………CJI
(P. SATHASIVAM)
.…....…………………………………J.
(RANJANA PRAKASH DESAI)
.…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
OCTOBER 08, 2013.
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