Gujarat High Court
Rajesh Motibhai Desai vs State Of Gujarat & 3 on 9 July, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/15735/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15735 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RAJESH MOTIBHAI DESAI....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1
MR RUTVIJ OZA, AGP for the Respondent(s) No. 1 , 4
NOTICE UNSERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09 /07/2015
CAV JUDGMENT
1. By this writ application under Article 226 of Page 1 of 64 C/SCA/15735/2014 CAV JUDGMENT the Constitution of India, the petitioner, a disabled person, has prayed for the following reliefs: "(a) to direct the respondent nos. 1 and 2 to give appointment to the petitioner as Assistant Professor of Physiology as a candidate of reserved category of Physically Handicapped persons pursuant to Advertisements dated 992014 and 2392014 at Annexure C and D;
(b) to hold and declare and direct that the respondents, their agents and servants are duty bound to implement the reservation for Physically Handicapped persons in the recruitment of Assistant Professors of Physiology pursuant to Advertisements dated 992014 and 2392014 at Annexures C and D to the extent of minimum 3% as mandated by the persons with Disabilites (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and as interpreted by the Hon'ble Supreme Court in Uion of India Vs. National Federation of the Blind, 2013 (10) SCC 772 by reserving the point Nos. 1, 34 and 67 for Physically Handicapped candidates in the 100 point roster rigister;
(c) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondent nos. 1 and 2 to give appointment to the petitioner as Assistant Professor of Physiology as a candidate of reserved category of Physically Handicapped persons pursuant to the Advertisements dated 992014 and 2392014 at Annexures C and D, subject to further orders that may be passed in this petition;
(d) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED TO direct the respondent nos. 1 and 2 to keep one post of Assistant Professor in Physiology vacant for the petitioner while making any appointments pursuant to Advertisements dated 9 92014 and 2392014 at Annexures C and D;
(e) to give all consequential and incidental benefits and monetary benefits to the petitioner with interest at the rate of eighteen percent per annum;
(f) to grant any other appropriate and just relief/s;
(g) to quash and set aside the impugned G.R. dated 382011 issued by the General Administration Department, Govt. of Gujarat, in so far as and to Page 2 of 64 C/SCA/15735/2014 CAV JUDGMENT the extent that it provides for Roster Point Nos. 34, 68 and 100, instead of Roster Point Nos. 1, 34 and 67 for the persons with disabilities in the 100 Point Roster.
(h) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to stay the further operation of the G.R. dated 382011 issued by the General Administration Department, Govt. of Gujarat, in so far as and to the extent that it provides for Roster Point Nos. 34, 68 and 100, instead of Roster Point Nos. 1, 34 and 67 for the persons with disabilities in the 100 Point Roster, and direct the respondents to operate Point Nos. 1, 34 and 67 for persons with disabilities while implementing the 100 Point Roster in the matter of appointments of Assistant Professors in the Medical Colleges under the respondents and in filling up the vacancies notified by Advertisements dated. 992014 and 2392014 as per Annexures - C and D of the petition."
2. The case of the petitioner may be summarized as under:
3. The petitioner is a person with disability (Physically Handicapped Person) with 55% permanent impairment in relation to his right leg.
4. He passed the M.B.B.S. in the year 2007 and thereafter did M.D. (Physiology) in the year 2014. It is his case that having regard to the qualifications he possesses he is eligible for being appointed as the Assistant Professor in the subject of Physiology in the Medical Colleges functioning under the respondents.
5. The respondent No.2Gujarat Medical Education Page 3 of 64 C/SCA/15735/2014 CAV JUDGMENT and Research Society (GMERS), an instrumentality of the Gujarat State Government issued an advertisement dated 9th September, 2014 for recruitment to the vacant posts of Professor, Associate Professor and Assistant Professor in various subjects at the GMERS Medical and colleges at the DharpurPatan, Valsad and Himmatnagar. The vacancies notified in the said advertisement were (1) 18 Professors (2) 52 Associate Professor (3) 35 Assistant Professor. For the subject of Physiology 3 vacancies were notified in the said advertisement. The walk in interviews for the subject of Physiology were held on 16th September, 2014, wherein the petitioner appeared and submitted his application.
6. The respondent No.2 issued one another advertisement dated 23 September, 2014 for the vacant posts of Professor, Associate Professor and Assistant Professor in the various subjects at the GMERS Medical Colleges, Sola, Ahmedabad, GotriVadodara, Gandhinagar and Junagadh. The vacancies notified in the said advertisement were (1) 18 Professors (2) 23 Associate Professor and (3) 36 Assistant Professor.
7. For the subject of Physiology 4 vacancies were notified in the advertisement dated 23rd Page 4 of 64 C/SCA/15735/2014 CAV JUDGMENT September, 2014. The walk in interviews for the subject of Physiology were held on 30th September, 2014 and on that date, the petitioner had appeared and submitted his application.
8. In the aforesaid recruitment, there was no specific mention of the reservation for persons with disabilities (Physically Handicapped Person) although such reservation of not less than 3% is mandatory under Section 33 of the persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 are came into force on 7th February, 1996.
9. The petitioner being a physically handicapped person was entitled to the benefit of such reservation in the said recruitment. The petitioner, therefore, made representations dated 29th September, 2014 and 15th October, 2014 to the respondents herein.
10. As there was no positive response from any of the authorities, and in the meantime, the respondent authorities proceeded ahead with the process of finalizing the selection list and making of appointment, the petitioner had to rush to this Court with the present writapplication.
11. It is the case of the petitioner that the Page 5 of 64 C/SCA/15735/2014 CAV JUDGMENT action of the respondent authorities in not providing for and implementing the mandatory reservation of the minimum 3% of the vacancies to be filled by the physically handicapped persons in the said recruitment of the Assistant Professors is patently arbitrary, discriminatory and contrary to the letter and spirit of the Act, 1995 including the office memorandum dated 29th December, 2005 issued by the Government of India, Ministry of Person Public Grievances and Functions, Department of Personnel and Training. It is his case that such action on the part of the respondent authorities is also contrary to the decision of the Supreme Court in the case of Union of India Vs. National Federation of the Blind, 2013 (10) SCC 772.
12. It is his case that he had personally met the Chief Executive Officer of the GMERS and had requested him to extend the benefit of 3% reservation for the physically handicapped persons by reserving the points accordingly in the roster for the recruitment of the Assistant Professor in the subject of Physiology.
13. It is his case that at that point of time he was explained by the Chief Executive Officer of the GMERS that such reservation for the physically handicapped persons would be Page 6 of 64 C/SCA/15735/2014 CAV JUDGMENT implemented at the point Nos.34, 67 and 100 in the recruitment the Assistant Professors in the subject of physiology.
14. It is his case that even if there is any circular or resolution issued by the Government of Gujarat for reserving the point nos.34, 67 and 100 for the disabled persons, the same is liable to be quashed being contrary to the object of the Act, 1995 and the respondents should be directed to implement the minimum 3% of the reservation for the disabled persons by making appointment at point nos. 1, 34 and 67 in the cadre of the Associate Professors.
15. It is his case that the Supreme Court in the case of the Union of India (supra) considered the office memorandum dated 29th December, 2005 issued by the Government of India with regard to the reservation for persons with disabilities in the posts and services at length and held that such reservation was mandatory in all the posts in direct recruitment.
16. It is his case that that he was the only candidate physically handicapped and there was no other physically handicapped candidate who had appeared at the walk in interview for the post of the Assistant Professor in physiology in response Page 7 of 64 C/SCA/15735/2014 CAV JUDGMENT to the two advertisements referred to above.
Stance of the respondents:
17. on behalf of the respondent No.2 an affidavitinreply has been filed duly affirmed by Dr. Bipinchandra Mahashankar Nayak, CEO, GMERS, Gandhinagar. In the affidavit in reply, it has been stated as under: "6. Petitioner has also prayed to hold and declare and direct that the respondent their servants are duty bound to implement the reservation of physical handicap person with the recruitments of Assistant Professor of Physiology pursuant to advertisement dated 09.09.2014 and 23.09.2014 and the extent of minimum 3% as mandated by the Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and as interpreted by the Hon'ble Supreme Court, Union India V/s National Federation of Blind & Ors., 2013 10 SCC 772 by reserving under number 1, 34 and 67 for physically handicapped in the 100 point roster register.
7. It is respectfully submitted that there are 7 medical colleges under the control of Gujrat Medical Education and Research Society, Gandhinagar Viz. GMERS Medical College SolaAhmedabad, GMERS Medical College GotriVadodara, GMERS Medical College Gandhinagar, GMERS Medical College DharapurPatan, GMERS Medical College Valsad, and GMERS Medical College Junagadh and GMERS Medical College Himmatnagar are proposed. Three post of Assistant Professor of Physiology have been sanctioned in each of these seven Medical Colleges, that way total twenty one posts are sanctioned.
Gujarat Medical Education & Research Society is established by Government of Gujarat. It is mandatory for the Society to implement the reservation policy of Government of Gujarat. This society is implementing the reservation of 3% vacancies to be filled by physically Handicapped person on the recruitment of Assistant Professor, Page 8 of 64 C/SCA/15735/2014 CAV JUDGMENT Physiology as per orders of Government of Gujarat.
8. It is respectfully submitted that as per General Administration Department Resolution no.C CRR/102009/93127/G.2 dated 3.08.2011 (refered by the petitioner at page no.119 and 120), three posts at Roster point no.32, 68 and 100 are to be kept reserved for physically Handicapped person. Therefore, no post at Roster point no.1, 34 and 67 are kept reserved for physically handicapped person. Again I submit that this society is established by the Government of Gujrat and reservation policy is to be implemented as per the policy of Government of Gujarat and Government of Gujarat had decided to keep roster point no. 34, 68 and 100 for physically handicapped person. Further, it is to clarify here that in pursuance of the Persons with disabilites, Act, 1995 Government of Gujarat has decided to reserve three percent of vacancies in every establishment, vide General Administration Department, Government of Gujarat notification dated 19.02.2000 (referred by the petitioner at page no.91). In pursuance of the notification dated 19.02.2000, Government of Gujarat had decided the roster point for the recruitment of physically handicapped person vide Government in General Administration Department Resolution dated 05.09.2000 (referred by the petitioner at page no. 92 to 111). As per Annexure2 of this Government Resolution, no point was kept reserved for direct recruitment of class1 and class2 post, while point no.34, 68 and 100 was kept reserved for recruitment of class3 and class4, vide Annexure3. Thereafter roster point no.34, 68 and 100 was kept reserved for physically handicapped person vide Government in General Administration Department Resolution no. CRR/102000/GOI/7/G.2 dated 04.05.2002 (referred by the petitioner at page no.117 and 118). However, as the reservation of physically handicapped person is interlocutory, no roster point is required to be decided and therefore Annexure3 attached with G.R. dated 05.09.2000 was cancelled and Annexure2 is to apply for recruitment of class3 and class4 post for direct recruitment vide General Administration Department, Government of Gujarat G.R. no. PVS1696 878PART2/G4 dated 03.08.2011 (Annexure1 enclosed herewith).
9. It is respectfully submitted that, this Society is implementing the reservation policy for physically handicapped person as per the policy and decision of Government of Gujarat and Government of Gujarat has decided to keep point no.34, 68 and 100 for physically handicapped person vide General Page 9 of 64 C/SCA/15735/2014 CAV JUDGMENT Administration Department resolution no. CRR/102009/93127/G2 dated 03082011. Therefore, this Society cannot keep the roster point no. 1, 34 and 67 reserved for physically handicapped person. The Society has to implement the relevant policy in force, from time to time, of the State Government only.
10. It is respectfully submitted that as per oral order of this Hon'ble High Court dated 09.12.2014, one post of Assistant Professor of Physiology has been kept vacant. However, it is submitted that, as explained in detailed in point no. 6 above, no reservation for physically handicapped person applies to the post of Assistant Professor of Physiology as the total of post sanctioned in this cadre is 21 and the first point for reservation of physically handicapped is reserved at point no.34. Hence, no post is required to be kept vacant for this cadre and therefore it is requested to give permission to fill up post which is kept vacant as per Hon'ble High Court order.
11. It is respectfully submitted that, the petitioner is not entitled to get appointment of Assistant Professor of Physiology. Government of Gujarat has decided to increase the number of seats of medical students for the Medical Colleges. To cope up with this target, Gujarat Medical Education & Research Society has been established by the Government of Gujarat to start new medical colleges in the State. New Medical colleges are being started only after the permission is given by the Medical Council of India. Therefore, it will adversely affect in getting permission to establish new medical colleges in the State. Under the circumstances, the Hon'ble High Court is requested to give the permission to fill up the post of Assistant Professor, Physiology which is kept vacant as per Hon'ble High Court order.
12. It is also submitted that as the contention of the petitioner is regarding G.R. of General Administration Department Government of Gujarat dated 03.08.2011 in which reservation for physically handicapped person is kept at point no. 34, 68 and
100. It is a policy matter to be decided by Government of Gujarat."
Submissions on behalf of the petitioner Page 10 of 64 C/SCA/15735/2014 CAV JUDGMENT
18. Mr. K.B. Pujara, the learned advocate appearing for the petitioner vehemently submitted that the G.R. dated 3rd August, 2011 issued by the General Administration Department, Government of Gujarat and referred to and strongly relied upon in the affidavit in reply of the respondent No.2 deserves to be quashed and set aside in so far as it provides for point Nos. 34, 68 and 100 for the persons with disabilities in the 100 point roster instead of providing the point nos.1, 34 and 67 in the 100 point roster as provided for in the Government of India, Office Memorandum dated 29th December, 2005.
19. He submitted that the relevant clauses of the Office Memorandum dated 29th December, 2005 were considered by the Supreme Court in the case of Union of India (supra).
20 Mr. Pujara submitted that the Act is a social legislation enacted for the benefit of the persons with disabilities and its provisions must be interpreted in order to fulfill its objective. Mr. Pujara submitted that the Union of India, all State Governments as well as the Union Territories have categorical obligation under the Constitution of India and various international treaties relating to the human rights in general and treaties for disabled persons in particular, Page 11 of 64 C/SCA/15735/2014 CAV JUDGMENT to protect the rights of the disabled persons. Although the Act was enacted way back in 1995, yet the disabled people have failed to secure the necessary benefit until today.
21. Mr. Pujara submitted that that the Union of India has issued O.M. dated 29122005 with a view to implementing the Act of 1995 in its true letter and spirit and has provided that the point Nos.1, 34 and 67 should be reserved for the persons with disabilities in the 100 point Roster, and quite contrary the Govt. of Gujarat issued a G.R. dated 382011 so as to implement the Act of 1995 providing for the point Nos.34, 68 and 100 for the persons with disabilities in the 100 Point Roster which is resulting into denial of the benefit of the Act of 1995 to the persons with disabilities in most of the cases where the cadre or the vacancies are much less, as in the case in hand.
22. Mr. Pujara submitted that according to the respondents' stance they have 7 medical colleges and in each of the said colleges there are 3 posts of Assistant Professors in the subject of Physiology, and therefore total posts in the said cadre are only 21 and therefore they have not reserved any vacancy for the persons with disabilities because even for 1 vacancy to be Page 12 of 64 C/SCA/15735/2014 CAV JUDGMENT reserved for them there have to be atleast 34 posts in the cadre. This clearly tantamounts to the negation of the aim and objects of the Act of 1995.
23. Mr. Pujara submitted that the said G.R. dated 382011 is liable to be quashed and set aside being arbitrary, irrational, unjust, unreasonable, suffering from vice of non application of mind and even otherwise violative of Articles 14, 16, 19, 21 and 39 of the Constitution of India, in so far as it provides for the Roster Point Nos.34, 68 and 100, instead of Roster Point Nos. 1, 34 and 67 for the persons with disabilities in the 100 Point Roster.
24. Mr. Pujara submitted that if the respondents are allowed to implement the persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in such arbitrary manner, then the Physically Handicapped candidate would hardly get appointment in his life time in the cadre of Professor for which there is only one post in every college and in the cadre of the Associate Professor for which there are only two posts in every college and in the cadre of the Assistant Professor for which there are only three posts in every college.
Page 13 of 64 C/SCA/15735/2014 CAV JUDGMENT25. Mr. Pujara submitted that the reservations for the Physically Handicapped are horizontal reservation/special reservations like reservations for women and exservicemen and therefore there need not be any specific Roster point for PH candidates but the first suitable available post in every cadre must be filled up by the PH candidate and every cadre must be filled up by the PH candidate in every block of 1 to 33 and 34 to 66 and 67 to 100, according to the Department of Personnel and Training, Government of India's Office Memorandum dated 3 122013 at AnnexureG of the petition.
26. Mr. Pujara submitted that his client is entitled to the appointment as a Physically Handicapped candidate of the SEBC Category as the Assistant Professor of Physiology, with all consequential benefits as if he was given appointment along with the first candidate appointed pursuant to the Advertisement in question.
Submissions on behalf of the respondents
27. Mr. Rutvij Oza, the learned AGP appearing on behalf of the respondents vehemently opposed this application and submitted that none of the Page 14 of 64 C/SCA/15735/2014 CAV JUDGMENT fundamental rights or any other legal right of the petitioner could be said to have been infringed or violated on the ground that although being a physically handicapped person has been denied appointment to the post of Associate Professor in the subject of Physiology. Mr. Oza placed strong reliance on the Government Resolution dated 382011 which provides that 3 posts at the Roster Point Nos. 34, 68 and 100 are to be kept reserved for the physically handicapped person. He submitted that no post at the Roster Point Nos.1, 34 and 67 are kept reserved for the physically handicapped person.
28. It is his case that respondent No.2 has been implementing the reservation policy for the physically handicapped person as provided in the Resolution dated 3rd August, 2011. He submitted that no reservation for the physically handicapped person would apply to the post of the Assistant Professor of Physiology as the total posts sanctioned in the cadre is 21 and the first point for reservation for the physically handicapped is reserved at point No.34.
29. He submitted that there being no merit in this application, the same be rejected.
Analysis Page 15 of 64 C/SCA/15735/2014 CAV JUDGMENT
30. Having heard the learned counsel appearing for the parties and having gone through the materials on record the only question that falls for my consideration is whether the policy of the State Government as contained in the G.R. dated 3rd August, 2011 in so far as it provides for the Point Nos. 34, 68 and 100 in the 100 Point Roster is legal and in consonance with the object of the Act, 1995 and the decision of the Supreme Court in the case of Union of India (supra).
31. The core principle of the Universal Declaration of Human Rights, is that "All human beings are born free and equal in dignity and rights." This has guided the United Nation's Disability Programme. The notion of human dignity and human rights for the disabled should be fundamental to every society. Human dignity means selfdetermination, selfrespect and integrity. The very concept of human rights implies that they are common to all human beings and must therefore be universally applicable.
32. The concept of equality enshrined in Article 14 of the Constitution of India itself enjoins duty on the State to bring about a situation where the fundamental rights can be exercised on the footing of equality. Necessarily therefore, a disabled person is entitled to a Page 16 of 64 C/SCA/15735/2014 CAV JUDGMENT right to be placed at the level at which he can enjoy the rights. The duty of the State to enact special provisions to enable the disabled persons to exercise their fundamental rights is thus provided in Article 14 itself. In the background of this fundamental right to equality, the directive principle of State policy contained in Article 39A of the Constitution assumes significance. Under that provision, the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Therefore, no disability shall deny to any citizen an opportunity to secure justice on the basis of equal opportunity. There is also an important directive principle contained in Article 41 enjoining a duty on the State (within the limits of its economic policy and development) to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want. Thus, much before the progress was made in the international arena, Page 17 of 64 C/SCA/15735/2014 CAV JUDGMENT the founding fathers of the Constitution found it necessary to emphasize the duty of the State in Article 41 to make effective provision for securing the right to work, to education and to public assistance in cases of disablement. The concepts of justice social, economic and political, equality of status and of opportunity and of assuring dignity of the individual incorporated in the Preamble, clearly recognize the right of one and all amongst the citizens to these basic essentials designed to flower the citizens' personality to its fullest. Afterall, an ablebodied person can have many hidden disabilities and an apparently disabled person may have many hidden abilities, and the concept of equality helps both in reaching their highest potential.
33. However, despite all efforts, persons with disabilities are still denied equal opportunities and remain isolated in many of our societies. The rights of individuals with disabilities examine the historical treatments of persons with various disabilities under the law and the current social, political and legal impact that recent disability rights legislation has had on society as a whole.
34. There are more then 600 million persons with Page 18 of 64 C/SCA/15735/2014 CAV JUDGMENT disabilities in the world today. 80% of them live in the developing countries. A staggering 90 million people in India are disabled. That's almost one in every ten.
35. At least 1.2 million people with disabilities in India are living in households consisting only of people with disability.
36. While the total people with disabilities increased by just over 22 per cent over a decade, from almost 22 million in the Census 2001 to 26.8 million in 2011, the number of people with disabilities living on their own has nearly doubled, jumping by 84 per cent in the same period. In the State of Gujarat there are 1,045,465 disabled persons out of a total population of 60,439,692.
Disabled Population by Sex and Residence India, 2011 Residence Persons Males Females Total 26810557 14986202 11824355 Rural 18631921 10408168 8223753 Urban 8178636 4578034 3600602 Decadal Change in Disabled Population by Sex and Residence, India, 200111 Absolute Increase Percentage Decadal Growth Residenc Persons Males Females Persons Males Fema e le Page 19 of 64 C/SCA/15735/2014 CAV JUDGMENT Total 4903788 2380567 2523211 22.4 18.9 27.1 Rural 2243539 997983 1245556 13.7 10.6 17.8 Urban 2660249 1382584 1277665 48.2 43.3 55 Percentage of Disabled to total population India, 2011 Residence Persons Males Females Total 2.21 2.41 2.01 Rural 2.24 2.43 2.03 Urban 2.17 2.34 1.98 Percentage of Disabled to total population India, 2001 Residence Persons Males Females Total 2.13 2.37 1.87 Rural 2.21 2.47 1.93 Urban 1.93 2.12 1.71 Proportion of Disabled Population by Social Groups India, 2011 Social Group Persons Males Females Total 2.21 2.41 2.01 Scheduled 2.45 2.68 2.2 Castes Scheduled 2.05 2.18 1.92 Tribes Other than 2.18 2.37 1.98 SC/ST Disabled Population by Type of Disability India : 2011 Type of Persons Males Females Disability Page 20 of 64 C/SCA/15735/2014 CAV JUDGMENT Total 26810557 14986202 11824355 In Seeing 5032463 2638516 2393947 In Hearing 5071007 2677544 2393463 In Speech 1998535 1122896 875639 In Movement 5436604 3370374 2066230 Mental 1505624 870708 634916 Retardation Mental Illness 722826 415732 307094 Any Other 4927011 2727828 2199183 Multiple 2116487 1162604 953883 Disability Proportion of Disabled Population by Type of Disability India : 2011 Type of Persons Males Females Disability Total 100 100 100 In Seeing 18.8 17.6 20.2 In Hearing 18.9 17.9 20.2 In Speech 7.5 7.5 7.4 In Movement 20.3 22.5 17.5 Mental 5.6 5.8 5.4 Retardation Mental Illness 2.7 2.8 2.6 Any Other 18.4 18.2 18.6 Multiple 7.9 7.8 8.1 Disability Source : CSeries, Table C20, Census of India 20012011
37. These figures in the very beginning of the judgment are not mentioned to create any sympathy for persons with disabilities. The aim of mentioning these figures here is to illustrate Page 21 of 64 C/SCA/15735/2014 CAV JUDGMENT that still more then 600 million persons with various disabilities are being prevented from contributing to the world society (whether socially or economically) because of the barrier called disability.
38. The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 establishes responsibility on the society to make adjustments for the disabled people so that they overcome various practical, psychological and social hurdles created by their disability. The Act places disabled people at par with other citizens of India in respect of education, vocational training and employment.
39. The highlight of the Act is that it gives statutory recognition to the policy of three per cent reservation in all Group 'C' and 'D' posts and has extended the reservation to Group 'A' AND 'B' posts also. The Act declares that the state shall progressively ensure that every child with disability has access to free education until the age of 18 years. Until now the provision of free education had been restricted to children below 14 years.
40. The Act has several provisions to ensure Page 22 of 64 C/SCA/15735/2014 CAV JUDGMENT equal opportunities, protection of rights and full participation of disabled people in mainstream activities of the society. The State has been entrusted with the responsibility to prevent disabilities, provision of medical care, education, training, employment and rehabilitation of persons with disabilities.
41. The historical perspective leading to the promulgation of the Act are that initially, the Central as well as State Governments had launched welfare schemes to train, educate and provide useful employment to the persons with disabilities. The Central Government provided reservation to the extent of 3% vacancies in Group C and D posts for physically handicapped, including visually impaired persons. Vide order dated December 30, 1995, the Government of India constituted a Screening Committee to undertake identification of jobs for the handicapped in Group A and B posts also. The Committee headed by Sh.M.C.Narsihman Joint Secretary, Government of India as its Chairman, submitted its report published on October 31, 1986 identifying total 416 posts in Group A and B, found suitable for the persons with physically disabilities. The report was accepted by the Government of India vide O.M. dated November 25, 1986, conveying the policy decision of giving preference to the Page 23 of 64 C/SCA/15735/2014 CAV JUDGMENT persons with disabilities in the matter of recruitment to the posts identified by the Committee.
42. Furthermore, it provides that implementation of the intentions and provisions of the Act shall be done through constituting of coordination committees at the Central and State levels with the Welfare Minister as the chairperson and officials of ministries and departments concerned, NGOs working with and for disabled people and eminent people with disabilities as members to coordinate disabilityrelated activities of the Government, NGOs and others. The Indian disability law treats disability as civil rights rather than a health and welfare issue. The law recognizes the importance of consultation with the disabled people on issues, which directly or indirectly affect them.
43. The Act intends to provide for the following, as is apparent from the statement of objectives and reasons: "(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
Page 24 of 64 C/SCA/15735/2014 CAV JUDGMENT(ii) to create barrierfree environment for persons with disabilities.
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, visavis, nondisabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons disabilities;
(v) to lay down strategies for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and
(vi) to make special provision for the integration of persons with disabilities into the social mainstream."
(vii) In Javed Abidi v. Union of India, AIR 1999 SC 512), the Supreme Court, keeping in view the objectives a relevant consideration while deciding the question as to whether all persons suffering from disability as defined under section 2(i) of the Act should be granted concession like the blind persons for travelling by air, held that the Court cannot ignore the Page 25 of 64 C/SCA/15735/2014 CAV JUDGMENT true spirit and object with which the Act was enacted to create barrier free environment for persons with disabilities and to make special provisions for the integration of persons with disabilities into the social mainstream apart from the protection of rights, provision of medical care, education, training, employment and rehabilitation which are some of the prime objectives of the Act. The Supreme Court bearing in mind the discomfort and harassment a person suffering from locomotor disability would face while travelling by train particularly to far of places, issued a direction to the Indian Airlines to grant persons suffering from locomotor disability to the extent of 80%, the same concession which the Airlines is giving to those suffering from blindness. This is an important decision, because, despite the plea that the economic condition of the Indian Airlines was such that it was not feasible to grant any further concession to any other category of disabled persons, and that the Act itself postulates for providing facilities to the disabled persons within the limits of economic capacity, the Court issued the above directions keeping in view the broad objectives of the Act.
44. Chapter VI of the Act, in Section 32 provides Page 26 of 64 C/SCA/15735/2014 CAV JUDGMENT for identification of posts which can be reserved for persons with disability and Section 33 provides for reservation for posts of not being less than 3% for the class of persons with disability. Section 36 provides that the vacancies not filled up are to be carried forward while Section 38 provides for schemes for ensuring employment of persons with disability. Section 32 and 33 of the Act, being relevant for the issues raised in the present writ petition need to be noted. They read as under:
45. Identification of posts which can be reserved for persons with disabilities. Appropriate Governments shall
(a) identify posts, in the establishments, which can be reserved persons with disability;
(b) at periodical intervals not exceeding three years, review the list of posts identified and update the list taking into consideration the developments in technology.
46. Undoubtedly, as the legislative history and the statements of objects and reasons of the Act, read with the preamble thereof, would depict that the Act is a beneficial/welfare legislation aimed Page 27 of 64 C/SCA/15735/2014 CAV JUDGMENT to benefit persons with disabilities so as to integrate them with the mainstream of the society as ordained by Articles 39A and 41 of the Constitution of India. Thus, the language of the Act has to be read and interpreted with reference to the object sought to be achieved thereunder and the power conferred on any authority will have to be exercised in the light thereof and for fulfillment of the object and purpose of the Act. The power conferred upon the appropriate government under Section 32 of the Act, to identify the posts suitable for persons with disability, thus, will have to be construed purposively so as to achieve the constitutional goal. The appropriate Government thus, in exercise of its function under Section 32 of the Act, cannot exclude persons with disability from a post in any establishment unless it is found that but for the nature of the duties performed, it will in no event be suitable for any person with disability to perform the duties of the said post.
47. 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 Page 28 of 64 C/SCA/15735/2014 CAV JUDGMENT 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.
48. India is a signatory to a proclamation on the full participation and equality of people with disabilities in the Asia and Pacific regions, adopted at a meeting convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing in 1992. To effectuate the purposes of the Proclamation was enacted 'The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation0 Act, 1995 (Central Act 1 of 1996) (for short 'the 1995 Act'). The 1995 Act has been notified to come into force with effect from 721996. Section 39 of the 1995 Act mandates all Government educational institutions and other educational institutions receiving aid from the Government to reserve not less than 3 per cent seats for persons with disabilities. Section 2(i) defines 'disability' to mean blindness, loss of vision, leprosycured, hearing impairment, locomotor disability, mental retardation and mental illness. Some of these enumerated disabilities are further defined in the 1995 Act, which are Page 29 of 64 C/SCA/15735/2014 CAV JUDGMENT not however necessary to be considered for the purposes of this lis. This 1995 Act is a legislation by the Parliament, made for giving effect to an International agreement (Art.253). Section 39 of 1995 Act, as already noticed, mandates that no less than 3 per cent prescribed is not the ceiling on reservations, but the minimum percentage of reservation that should be provided for persons with disabilities. These reservations also constitute State action to ensure equal opportunities guaranteed under Arts. 14 and 15 of the Constitution.
49. On 30.3.2007, India also joined the community of 82 countries to have signed the United Nations Convention on the Rights of Persons with disabilities (CRPD) on the very day it was adopted and opened for signature. India has now ratified the Convention on 1.10.2007.
50. CRPD is the first comprehensive human rights treaty of the 21st century and though it does not create any new right for persons with disabilities, it seeks to contextualize existing rights for the specific circumstances of persons with disabilities. Apart from universal fundamental rights like equality, non discrimination, life, liberty, the Convention covers a number of key areas of life that are Page 30 of 64 C/SCA/15735/2014 CAV JUDGMENT critical to persons with disabilities such as accessibility, personal mobility, health, education, employment, habilitation and rehabilitation, participation in political life. The Convention marks a shift in viewing disability from a social welfare concern to a human rights issue, which involves acknowledging that societal barriers and prejudices are themselves disabling. Article 12 is the core of Convention and guarantees equal recognition as persons before the Law for persons with mental and intellectual disabilities. The salient features of CRPD are, (1) the shift in the paradigm of disability rights from one of welfare to one of human rights agenda; (2) the mainstreaming of intellectual and mental disabilities within the disability scheme and with other citizens; (3) it is an undivided package of rights i. e. health rights are not delinked from economic, civil and other rights; (4) All disabled persons have the capability to exercise their rights because the CRPD grants them equality of legal capacity irrespective of their mental capacity.
51. Before I proceed to deal with the rival submissions made on both the sides I must look into the decision of the Supreme Court in the case of Union of India (supra). The issue before the Supreme Court was whether in terms of Section Page 31 of 64 C/SCA/15735/2014 CAV JUDGMENT 33 of the Act, 3% reservation for the disabled person should be computed on the basis of total strength of the cadre, that is, both identified as well as unidentified posts or should it be calculated on the basis of the vacancies in the identified as well as unidentified posts.
52. I may quote the observations of the Supreme Court as under: "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 nonidentified 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.
Page 32 of 64 C/SCA/15735/2014 CAV JUDGMENT15. EFFECTING RESERVATIONMAINTENANCE 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) 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.
Page 33 of 64 C/SCA/15735/2014 CAV JUDGMENT(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.
Page 34 of 64 C/SCA/15735/2014 CAV JUDGMENTHowever, 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.
Page 35 of 64 C/SCA/15735/2014 CAV JUDGMENTSC/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. 36035/3/2004Estt (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 Page 36 of 64 C/SCA/15735/2014 CAV JUDGMENT 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. 36035/3/2004Estt (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 Page 37 of 64 C/SCA/15735/2014 CAV JUDGMENT 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. 36035/3/2004Estt(Res) dated 29.12.2005 provides that if any vacancy reserved for any category of disability cannot be filled due to nonavailability 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 nonavailability 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/ Page 38 of 64 C/SCA/15735/2014 CAV JUDGMENT 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 19932002, which gave a definite boost to the movement. The main need that Page 39 of 64 C/SCA/15735/2014 CAV JUDGMENT 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 nonavailability 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 (R1) 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.
Page 40 of 64 C/SCA/15735/2014 CAV JUDGMENT(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 Page 41 of 64 C/SCA/15735/2014 CAV JUDGMENT 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 Page 42 of 64 C/SCA/15735/2014 CAV JUDGMENT 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 nonavailability 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 Page 43 of 64 C/SCA/15735/2014 CAV JUDGMENT 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 Page 44 of 64 C/SCA/15735/2014 CAV JUDGMENT 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 Page 45 of 64 C/SCA/15735/2014 CAV JUDGMENT 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 Page 46 of 64 C/SCA/15735/2014 CAV JUDGMENT 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 Page 47 of 64 C/SCA/15735/2014 CAV JUDGMENT 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, Page 48 of 64 C/SCA/15735/2014 CAV JUDGMENT 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 Page 49 of 64 C/SCA/15735/2014 CAV JUDGMENT 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 Page 50 of 64 C/SCA/15735/2014 CAV JUDGMENT in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to 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 wellsettled 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 Page 51 of 64 C/SCA/15735/2014 CAV JUDGMENT 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 cadrestrength is always measured by Page 52 of 64 C/SCA/15735/2014 CAV JUDGMENT 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 cadrestrength. 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 visàvis nondisabled 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 vacancybased 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 cadrestrength. 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 Page 53 of 64 C/SCA/15735/2014 CAV JUDGMENT 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.Page 54 of 64 C/SCA/15735/2014 CAV JUDGMENT
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 nonobedience 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.
"
53. I am of the view that the policy of the State Government as contained in the G.R. dated 3rd August, 2011 in so far as it provides for the Page 55 of 64 C/SCA/15735/2014 CAV JUDGMENT point Nos. 34, 68 and 100 for persons with disabilities in the 100 point roster instead of providing the point nos. 1, 34 and 67 in the 100 point roster is absolutely unreasonable and arbitrary. Such policy frustrates the very object with which the Act of 1995 came to be enacted. The purpose of keeping the point nos. 1, 34 and 67 as reserved is to fill 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 the disabilities. This is exactly what has been provided in the aforesaid memorandum of the Government of India dated 29th December, 2005. The State Government could have safely adopted the same procedure, since what is intended by the statutory mandate is to provide reservation to the disabled and it cannot be left to the caprice of the State Government to decide as to when and to which posts it would make such reservation.
54. The contention of the learned AGP for the respondents that the Government can wait till the 33rd post comes, defeats the very purpose intended by the legislature, more particularly, when the sanctioned posts is only 21. The mandate of the reservation, as provided in the Act cannot at all be escaped from and it has to be complied with at the earliest moment and would not at all be Page 56 of 64 C/SCA/15735/2014 CAV JUDGMENT dependent upon the whim or caprice of the employer. To leave it to the employer to decide as to which vacancy he would appoint a disabled person entitled to reservation would be defeating the legislative mandate. If a disabled person of the general category is first among the disabled, then he ought to be adjusted against the general category vacancy and if it is a disabled SC candidate who comes first, then necessarily he would have to be appointed in the reserved vacancy.
55. I am in complete agreement with the submission of Mr. Pujara that if the respondents are allowed to implement the Act, 1995 in such an arbitrary manner, then the physically handicapped candidate like his client would hardly get appointment in his entire life time in the cadre of professor for which there is only one post in every college and in the cadre of Associate Professor for which there are two posts in every college and in the cadre of Assistant Professor for which there are three posts in every college.
56. Mr. Pujara is further justified in submitting that the reservations for the physically handicapped are horizontal reservation/ special reservation like reservation for the women and exserviceman and therefore there need not be any Page 57 of 64 C/SCA/15735/2014 CAV JUDGMENT specific roster point for the physically handicapped candidates but the first suitable available posts in every cadre must be filled up by the physically handicapped candidate in every block of 1 to 33 and 34 to 66 and 67 to 100.
57. In the aforesaid context I may quote with profit a decision of the Supreme Court in the case of Government of A.P. Vs. P.B. Vijaykumar and another, AIR 1995 SC 1648, wherein, the Court made the following observations: "9. In the light of these constitutional provisions, if we look at Rule 22A(2) it is apparent that the rule does make certain special provisions for women as contemplated under Article 15(3). Rule 22A(2) provides for preference being given to women to the extent of 30% of the posts,other things being equal. This is clearly not a reservation for women in the normal sense of the term.Reservation normally implies a separate quota which is reserved for a special category of persons. Within that category appointments to the reserved posts may be made in the order of the merit. Nevertheless, the category for whose benefit a reservation is provided, is not required to compete on equal terms with the open category. Their selection and appointment to reserved posts is independently on their inter se merit and not as compared with the merit of candidates in the open category. The very purpose of reservation is to protect this weak category against competition from the open category candidates. In the case of Indra Sawhney (1992 Supp (3) SCC 217 :
1992 AIR SCW 3682), (supra ) while dealing with reservations, this Court has observed (at paragraph
836) (of SCC): (Para 111 of AIR.) "It cannot also be ignored that the very idea of reservation implies selection of a less meritorious person. At the same time, we revognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed."These Page 58 of 64 C/SCA/15735/2014 CAV JUDGMENT remarks are qualified by observing that efficiency, competence and merit are not synonymous and that it is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes. What is required is an opportunity to prove it. It is precisely a lack of opportunity which has led to social backwardness, not merely amongst what are commonly considered as the backward classes, but also amongst women. Reservation, therefore, is one of the constitutionally recognised methods of overcoming this type of backwardness. Such reservation is permissible under Article 15(3)."
58. If I accept the stance of the State Government it is for sure that the petitioner herein would never get appointment as an Assistant Professor in his entire life time although he is qualified for the same. Horizontal reservation for physically handicapped candidates is a beneficial piece of legislation. It is in pursuance of commitment for social and equitable participation of physically handicapped. If the submission of learned counsel for Commission is accepted it shall render the provisions of reservation for physically handicapped otiose. Its interpretation should not be narrow. It should be interpreted in such a manner that the benefit extended to disabled category reaches them. While interpreting it, it has to be kept in mind that the benefit extended by the legislature should reach the disabled, therefore, wider and harmonious construction of the provisions of the Act has to be made to ensure justice to this deprived section of the society. If the argument Page 59 of 64 C/SCA/15735/2014 CAV JUDGMENT of the learned counsel for the respondents is accepted then it will defeat the objective of horizontal reservation for physically handicapped persons. The Rule of executive construction appears to have been given a complete goby. The reasonableness and fairness which is the hall mark of the Article 14 of the Constitution of India seems to be completely lost sight of. The State is expected to have a constitutional wisdom. It must give effect to the constitutional mandate. Any act done by it should be considered to have been affected in the light of the provisions contained in para IV of the Constitution of India. In terms of the 1995 Act, the State Government is obliged to make reservation for the handicapped persons in its true sense. The State completely lost sight of its commitment both under its own policy decision as also the statutory provision.
59. At this stage, I may point out that it is only the respondent No.2 who has thought fit to file an affidavitinreply and make its stance clear. The State Government has not filed any reply justifying or explaining the G.R. dated 3rd August, 2011 which provides for the point Nos. 34, 68 and 100 for the persons with disabilities in the 100 point roster instead of providing the point nos. 1, 34 and 67. The Government is Page 60 of 64 C/SCA/15735/2014 CAV JUDGMENT expected to take the necessary initiative to promote the full participation of the disabled persons in all aspects and sectors of the society. Unemployment is one of the biggest challenges that person with disability and their families usually face. Unemployment in this country by itself is a disability. The Government must endeavour to create a barrier free environment for the disabled persons.
60. The existing laws and the constitutional equality provision, if properly implemented, should ensure a fuller life with dignity to the disabled persons. The financial constraints also cannot be put forth by the State for dealing with the implementation of the programmes reflected in the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. There is a Constitutional obligation on the part of the State to ensure equal opportunity to all persons including disabled persons. This gives them a right to seek removal of their handicaps so as to place them on a competitive level with others by making supportive provisions which can enable them to exercise their fundamental right to life to its fullest extent. Discrimination on the ground of disabilities should be penalised Page 61 of 64 C/SCA/15735/2014 CAV JUDGMENT and the provider of a service should be duty bound to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities, it would be impossible or unduly difficult for such person to avail himself or herself of the service.
61. It appears that the Central Government has introduced the rights of persons with disabilities bill in the Rajyasabha, seeking to increase the reservation for disabled persons in the public sector jobs from the existing 3% to 5% and reserve seat for them in the higher educational institutions. The proposed legislation also seeks to broaden the ambit of the disability from 7 to 19 subcategories at present. The reservation for the disabled is only 3% in the ratio of 1% each for the physically, visually and hearing impaired persons, the new bill, if passed by the parliament, will extend the quota by 2%, covering the two new additional categories i.e. mentally disabled and people with multi disabilities. The proposed legislation is expected to bring more equality in defining disabilities. Any one suffering 40% disability or more will continue to be defined as a "person with disability". On one hand the Central Page 62 of 64 C/SCA/15735/2014 CAV JUDGMENT Government is intending to increase the reservation from 3% to 5% but it appears that 3% reservation is also not being provided in its true sense.
62. While every nation on planet earth continues to struggle with the disabilityrelated issues such as accessibility, employment, housing, rights and more; the nation of India very clearly has quite a ways to go before it reaches a sense of equality in relation to people with disabilities. The fact that India has signed the convention on the rights of persons with disabilities is promising. One can hope that the nation of India will pursue the convention, and find itself with equality in society for their citizens with disabilities.
63. In the result, I have no hesitation in declaring the G.R. dated 3rd August, 2011 as arbitrary, irrational, unreasonable and violative of the Articles 14 to 16, 19 to 21 and 39 of the Constitution of India. The same is declared so and is hereby ordered to be quashed and set aside. The State Government is directed to issue a fresh Government Resolution providing for the point Nos. 1, 34 and 67 in the 100 points roster for persons with disabilities in the 100 point roster as is provided for in the Government of Page 63 of 64 C/SCA/15735/2014 CAV JUDGMENT India Office Memorandum dated 29th December, 2005.
60. It is also declared that the petitioner herein is entitled to the appointment as a physically handicapped candidate in the SEBC Category as an Assistant Professor of Physiology with all consequential benefits. The respondents are directed to provide appointment to the petitioner as an Associate Professor of Physiology within a period of four weeks from the date of the receipt of the writ of the order. Rule is made absolute to the aforesaid extent.
(J.B.PARDIWALA, J.) Manoj Page 64 of 64