Central Administrative Tribunal - Delhi
Amzad vs Railway on 11 October, 2023
1
Item No. 25 (C-3)
O.A. No. 1344/2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 1344/2023
This the 11th day of October, 2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
AMZAD
(Group-C)
Aged about 29 years S/o Shri Munawar Junior
Clerk/Comml Branch DRM Office, New Delhi R/o
H.No.129, St. No.D-1, Nehru Vihar, Bhajan Pura, Delhi-94
Phone No.8920732253 E Mail:
[email protected]
... Applicant
(By Advocate: Mr. SK Rungta, Senior Advocate assisted by
Mr. )
Versus
1. NORTHERN RAILWAY
Through General Manager,
Having its office at
Baroda House, New Delhi
2. DIVISIONAL RAILWAY MANAGER, DELHI
State Entry Road Connaught Place, New Delhi
3. SR. DPO
Office of DRM, Delhi State Entry Road Connaught Place,
New Delhi
...Respondents
(By Advocate: Ms. Annu Singh)
2
Item No. 25 (C-3)
O.A. No. 1344/2023
O R D E R (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A):-
The respondents initiated a proposal for conducting a written examination for the post of Sr. Clerk cum Typist/Comml Clerk Gr. 5200-20200+2800 GP (Level 5). The proposal was to fill up six posts, however, only five candidates holding the post of Clerk Cum Typist were considered eligible for participation in the said written examination, which was being conducted for filing up 66- 2/3% quota of promotion. They applied the principle of reservation for filing up all these posts and bifurcated them amongst various categories which included one post for SC to be filled from an SC candidate who was also to be a person with benchmark disability (PwBD). The said list does not contain the name of the present applicant, although, admittedly, he is a person with benchmark disability and but for the respondents reserving the post for SC, he would have been eligible for participation. This fact is borne out of an earlier communication dated 13.12.2021 vide which the initial proposal for filling up all the posts of Sr. Clerk cum Typist/Comml Clerk Gr. 5200-20200+2800 GP (Level 5) by 3 Item No. 25 (C-3) O.A. No. 1344/2023 way of a written examination under promotion quota was instituted and the present applicant's name figured in the list of eligible candidates which was issued vide the said communication. For certain administrative reasons or otherwise, the said process was abandoned and has been reopened vide the present communication dated 06.04.2023 which is impugned in the present O.A., making a prayer for the following relief(s):-
― a) Allow this application.
b) Quash the impugned selection process as well as impugned communication dt. 6.4.2023 notifying the filling up of 6 posts of Sr. Clerk/Comml Gr. 5200-
202000+2800 GP (Level - 5) against 66 2/3% promotee quota as well as another impugned communication bearing No. 17.4.2023 issued by respondents fixing the date for written test as 11.5.2023 on the basis of the said impugned communication without including the name of the applicant.
4Item No. 25 (C-3) O.A. No. 1344/2023
c) Consequently direct the respondents to fresh notice for selection of Sr. Clerk/Comml. Gr. 5200- 20200+2800 GP (Level - 5) against 66 2/3 % promotee quota by providing separate reservation for persons with benchmark disabilities without linking it to any community/category (UR/SC/ST) in accordance with OM dt. 17.5.2022 and Rule 11 of RPWD Rules 2017 and also by including the name of the applicant in the eligibility list for written test on the basis of seniority in the category of PWBD candidates.
d) Grant any other relief which Your Lordship deem fit and proper in the circumstances of the case.
e) Award the cost.‖
2. Vide order dated 08.05.2023, this Tribunal had considered the prayer of the applicant for interim relief and allowed him to participate in the selection examination provisionally subject to the outcome of the present O.A. 5 Item No. 25 (C-3) O.A. No. 1344/2023
3. Mr. S.K. Rungta, learned senior counsel appearing for the applicant, while briefly narrating the facts and background of the case, submits that by enforcing a specific category reservation for persons with benchmark disability (PwBD), the respondents have violated the statutory provisions as contained in the Rights of Persons with Disabilities Act, 2016, and the Rules framed therein. Learned senior counsel points to a specific provision of Section 34 of the Act which has elaborately dealt with the principles of reservation to be adopted while extending the benefit of this reservation to PwBD. It would be appropriate to quote the said Section verbatim for the sake of clarity.
―34. Reservation.--(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:--
(a) blindness and low vision;6
Item No. 25 (C-3) O.A. No. 1344/2023
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses
(a) to (d) including deaf-blindness in the posts identified for each disabilities:
Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:
Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.
(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding 7 Item No. 25 (C-3) O.A. No. 1344/2023 recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government. (3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.‖
4. He submits that the procedure for providing such reservation has further been elaborated in the Rules framed under the Act, specifically, Rule 11, which explains how computation of the vacancies is to be done and how notification is to be issued. The said Rule is quoted below:-
―11. Computation of vacancies.- (1) For the purposes of computation of vacancies, four percent of the total number of vacancies including vacancies arising in the identified and 8 Item No. 25 (C-3) O.A. No. 1344/2023 non-identified posts in the cadre strength in each group of posts shall be taken into account by the appropriate Government for the persons with benchmark disabilities:
Provided that the reservation in promotion shall be in accordance with the instructions issued by the appropriate Government from time to time. (2) Every Government establishment shall maintain a vacancy based roster for the purpose of calculation of vacancies for persons with benchmark disabilities in the cadre strength as per the instructions issued by the appropriate Government from time to time. (3) While making advertisement to fill up vacancies, every Government establishment shall indicate the number of vacancies reserved for each class of persons with benchmark disabilities in accordance with the provisions of section 34 of the Act. (4) The reservation for persons with disabilities in accordance with the provisions of section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class.‖
5. He particularly draws attention to language of the Rule as drafted, precisely, to sub-rule 4 which makes an unambiguous mention that vacancies for persons with benchmark disability shall be maintained as a "separate class". Learned senior counsel for the applicant reiterates 9 Item No. 25 (C-3) O.A. No. 1344/2023 that since the vacancy based roster is to be prepared for PwBD as a separate class, ab-initio the action of the respondents in reserving this vacancy in the beginning for an SC candidate is violative of law. Learned counsel submits that the respondents are bound to act in accordance with the provisions of the Office Memorandum on the subject issued by the DoP&T on 17.05.2022 bearing the subject ―Reservation in promotion to Persons with Benchmark Disabilities (PwBDs). He submits that para 10 of the said memorandum elaborates the procedure to be followed by the various government departments for extending the provisions of the reservation for PWD in accordance with the relevant act, rules and circulars read with the judgment of the Hon'ble Supreme Court in Siddharaju Versus the State of Karnataka. We are quoting paragraph 10 verbatim below so that the entire issue can be understood holistically:-
―10. EFFECTING RESERVATION - MAINTENANCE OF ROSTERS 10.1 Every Government establishment shall maintain, cadrewise and group-wise, a separate 100-point vacancy-based 10 Item No. 25 (C-3) O.A. No. 1344/2023 reservation roster/register, as in the case of direct recruitment, for determining/effecting reservation for the PwBDs in promotion. There will be separate roster / register, in each cadre in Group 'C', Group 'B' and Group 'A', wherever reservation in promotion for PwBD is applicable. There shall be separate roster/register for promotion and direct recruitment. 10.2 Each register shall have cycles of 100 points and each cycle of 100 points shall be divided into four blocks, comprising the following points:
1st Block - Point No. 01 to point No. 25 2nd Block - Point No. 26 to point No. 50 3rd Block - Point No. 51 to point No. 75 4th Block -- Point No. 76 to point No. 100
10.3 Points 1, 26, 51 and 76 of the roster shall be earmarked for PwBDs - one point each for category under (a), (b), (c) of Para 2.2 above, respectively, and one point for category (d) and (e) conjointly. The Head of the establishment shall ensure that vacancies identified at SI. No.l, 26, 51 and 76 are earmarked for the respective categories of the PwBD. However, the Head of the Department shall decide the placement of the selected candidate in the roster/ register. In other words, the category to 11 Item No. 25 (C-3) O.A. No. 1344/2023 be appointed first will be decided by the Head of the Department based on the functional requirement.
10.4 All the vacancies in each recruitment year in a grade, arising irrespective of vacancies reserved for PwBDs, shall be entered in the relevant roster. If the vacancy falling at point no.
1 is not identified for the PwBD, or if the Head of the Department feels that it is not possible to fill up that post by the PwBDs for any other reason to be recorded in writing, one of the vacancies falling at any of the points from 2 to 25 shall be treated as reserved for the PwBD and filled, as such.
10.5 Likewise, one vacancy out of the total vacancies falling at points from 26 to 50 or from 51 to 75 or from 76 to 100 shall have to be filled by the PwBDs. The purpose of keeping points 1, 26, 51 and 76 as reserved is to fill up the first available suitable vacancy by the PwBD candidate of the category for which the post is earmarked.
10.6 There is a possibility that none of the vacancies from 1 to 25 is found suitable for any category of the PwBD. In that ease, two vacancies from 26 to 50 shall be filled from amongst the PwBDs. If the vacancies from 26 to 50 are also not suitable for any category, three vacancies in the third block 51 to 75 shall be filled as reserved. This means that if no vacancy can be reserved in a particular block, it shall be carried over to the next block.12
Item No. 25 (C-3) O.A. No. 1344/2023 10.7 After all the 100 points of the roster are covered, a fresh cycle of 100 points shall start.
10.8 If the number of vacancies in a year is such as to cover only one block (say 25 vacancies, including PwBD quota, if any) or two (say 50 vacancies, including the quota, if any), the categoiy of the PwBDs should be accommodated as per the roster points. However, in case, the said vacancy is not identified for the respective category of disability, the Head of the Department shall decide the category on the basis of the nature of the post, the level of representation of the specific category in the grade/post concerned, etc.‖
6. Learned counsel would argue that it is apparent on the face of it that the respondents have not correctly incorporated the provisions of the Act, rules and instructions governing the subject and first resorted to reservation under an SC category and thereafter, assigned a PwBD candidate against that category; this has ousted eligible PwBD candidates, in this specific case the applicant who is an admitted senior to Mr. Lekhender Kumar Paswan who has been included in the list of eligible candidates only on the ground that he is an SC. Learned counsel further reiterates that the reservation in this case is for PwBD and 13 Item No. 25 (C-3) O.A. No. 1344/2023 not SC. It is only after selection of an eligible and qualified PwBD that he is to be assigned a place in an appropriate category in order to adhere to the principle and law of an upper ceiling of 50% reservation. Learned counsel draws support from a judgment passed by the Hon'ble Supreme Court in the matter Union Of India and Another Versus National Federation of the Blind and Others bearing C.A. No. 9096/2013 drawing attention to paragraphs Nos. 36, 37, 38, 39 ,40, 41 and 42, which read as under:-
―36) Moreover, the intention of the legislature while framing the Act can also be inferred from the Draft Rights of Persons with Disabilities Bill, 2012, which is pending in the Parliament for approval. In Chapter 6 of the Bill, viz., Special Provisions for Persons with Benchmark Disabilities, similar sections like Sections 32 & 33 in the Act have been incorporated under Sections 38 and 39 which are as under:-
―Section 38. Identification of Posts which can be Reserved for Persons with Benchmark Disabilities:
Appropriate Governments shall - (a) identify posts in establishments under them which can be reserved for persons with benchmark disability as mentioned in section 39;
(b) at periodical intervals not exceeding three years, review and revise the list of identified posts, taking into consideration developments in technology.
Section 39. Reservation of Posts for Persons with Benchmark Disabilities:-
(1) Every appropriate Government shall reserve, in every establishment under them, not less than 5% of the vacancies meant to be filled by direct recruitment, for persons or class of 14 Item No. 25 (C-3) O.A. No. 1344/2023 persons with benchmark disability, of which 1% each shall be of all posts reserved for persons with following disabilities:-
i) blindness & low vision (with reservation of 0.5% of the vacancies for each of the two disabilities).
ii) hearing impairment & speech impairment.
iii) locomotor disability including cerebral palsy, leprosy cured and muscular dystrophy.
iv) autism, intellectual disability and mental illness
v) multiple disabilities from among i to iv above including deaf blindness Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
(2) If sufficient number of qualified persons with benchmark disabilities are not available in a particular year, then the reservation may be carried forward for upto the next three recruitment years, and if in such succeeding recruitment years also a suitable person with benchmark disability is not available, then the post in the fourth year may be first filled by interchange among the categories of disabilities; and only when there is no person with any benchmark disability available for the post in that year, the vacancy may be filled by appointment of a person, other than a person with benchmark disability.‖ A perusal of Sections 38 and 39 of the Bill clarifies all the ambiguities raised in this appeal. The intention of the legislature is clearly to reserve in every establishment under the appropriate Government, not less than 3% of the vacancies for the persons or class of persons with disability, of which 1% each shall be reserved for persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy in the posts identified for each disability.
37) 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 15 Item No. 25 (C-3) O.A. No. 1344/2023 reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor or cerebral palsy.
38) To illustrate, if there are 100 vacancies of 100 posts in an establishment, the concerned establishment will have to reserve a minimum of 3% for persons with disabilities out of which at least 1% has to be reserved separately for each of the following disabilities: persons suffering from blindness or low vision, persons suffering from hearing impairment and the persons suffering from locomotor disability or cerebral palsy.
Appointment of 1 blind person against 1 vacancy reserved for him/her will be made against a vacancy in an identified post for instance, the post of peon, which is identified for him in group D. Similarly, one hearing impaired will be appointed against one reserved vacancy for that category in the post of store attendant in group D post. Likewise, one person suffering from locomotor disability or cerebral palsy will be appointed against the post of ―Farash‖ group D post identified for that category of disability. It was argued on behalf of Union of India with reference to the post of driver that since the said post is not suitable to be manned by a person suffering from blindness, the above interpretation of the Section would be against the administrative exigencies. Such an argument is wholly misconceived. A given post may not be identified as suitable for one category of disability, the same could be identified as suitable for another category or categories of disability entitled to the benefit of reservation. In fact, the second part of the Section has clarified this situation by providing that the number of vacancies equivalent to 1% for each of the aforementioned three categories will be filled up by the respective category by using vacancies in identified posts for each of them for the purposes of appointment.
39) 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 16 Item No. 25 (C-3) O.A. No. 1344/2023 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.
40) Further, if we accept the interpretation contended by the appellants that computation of reservation has to be against the identified posts only, it would result into uncertainty of the application of the scheme of reservation because experience has shown that identification has never been uniform between the Centre and States and even between the Departments of any Government. For example, while a post of middle school teacher has been notified as identified as suitable for the blind and low vision by the Central Government, it has not been identified as suitable for the blind and low vision in some States such as Gujarat and J&K etc. This has led to a series of litigations which have been pending in various High Courts. In addition, Para 4 of the OM dated 29.12.2005 dealing with the issue of identification of jobs/posts in sub clause (b) states that list of the jobs/posts notified by the Ministry of Social Justice & Empowerment is not exhaustive which further makes the computation of reservation uncertain and arbitrary in the event of acceptance of the contention raised by the appellants.
41) 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.
42) 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 17 Item No. 25 (C-3) O.A. No. 1344/2023 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:-
―812 ......all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same......‖‖
7. Learned counsel further places before us another judgment of the Hon'ble Supreme Court passed in C.A. No. 3984/2007 in which the Hon'ble Court vide para 12 has made the following detailed observations:-
― 12. Disability has drawn the attention of the worldwide community. India is a signatory to various International Treaties and Conventions. The State, therefore, took a policy decision to have 18 Item No. 25 (C-3) O.A. No. 1344/2023 horizontal reservation with a view to fulfil its constitutional object as also its commitment to the international community. A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They constitute a special class. The advertisement, however, failed to mention in regard to the reservation for handicapped persons at the outset, but, as noticed hereinbefore, the vacant posts were required to be filled up for two categories of candidates; one for Scheduled Castes and Scheduled Tribe candidates and other for handicapped candidates. Handicapped candidates have not been further classified as belonging to Scheduled Castes, Scheduled Tribes and general category candidates. It is a travesty of justice that despite the State clarified its own position in its order dated 1.01.2004 and stated that the posts were vacant under the handicapped quota but it completely turned turtle and took a diagonally opposite stand when a contempt petition was filed. In its reply in the said proceedings, reference was made to the aforementioned order dated 1.01.2004 but within a short time, viz., on 4.02.2004 it opined on a presumption that as the word "handicapped" was not mentioned in the heading of advertisement they were meant only for Scheduled Caste and Scheduled Tribe candidates. Rule of Executive Construction was given a complete go bye. Reasonableness and fairness which is the hallmark of Article 14 of the Constitution of India was completely lost sight of. The officers of the State behaved strangely. It prevaricated its stand only because a contempt proceeding was initiated. If the State was eager to accommodate the writ petitioner respondent, it could have done so. It did not take any measure in that behalf. It chose to 19 Item No. 25 (C-3) O.A. No. 1344/2023 terminate the services of some of the employees who had already been appointed. Such a course could not have been taken either in law or in equity. The State is expected to have a constitutional vision. It must give effect to the constitutional mandate. Any act done by it should be considered to have been effected in the light of the provisions contained in Part IV of the Constitution of India. The State in terms of the provisions contained in Part IV should have given effect to the principles embodied in Article 39 of the Constitution of India. Whereas a reasonable reservation within the meaning of Article 16 of the Constitution of India should not ordinarily exist, 50%, as has been held by this Court in Indra Sawhney v. Union of India MANU/SC/0104/1993, reservation for women or handicapped persons would not come within the purview thereof.‖
8. Learned counsel has further clarified that it is after maintaining a separate vacancy based roster for persons with benchmark disabilities treating them as a separate class, the principles of reservation have to be applied and not prior to this exercise.
9. Learned senior counsel points out that there is not a single document or a single provision in any of the Acts, rules, instructions, or the judgments which would allow the respondents to treat a PwBD as a subcategory of any other category before providing the benefit of reservation.20
Item No. 25 (C-3) O.A. No. 1344/2023 Reservation has been provided under an act of Parliament, further outlined through administrative instructions and reinforced by the Hon'ble Supreme Court in various judgments, a few he has referred to and extensively quoted from. Accordingly, the action of the respondents cannot be sustained.
10. Ms. Annu Singh, learned counsel for the respondents submits that the factual position has been clearly elaborated in her counter reply. She draws attention to the brief history of the case explained therein submitting that no doubt the present applicant was senior to Mr. Lakhender Kumar Paswan (although the person has been referred to as Lakhender Kumar Sharma in the counter reply and not Paswan). She submits that the name of the applicant was at number six in the seniority list. However, it was only number 1, 2, 3, 4 and 7 who were considered eligible, strictly in accordance with the policy of reservation for SC and ST, in terms of the principles of vertical reservation. She has argued that neither is there any illegality nor procedural irregularity while drawing the list of eligible candidates. Accordingly, the grievance of the applicant is misplaced. She 21 Item No. 25 (C-3) O.A. No. 1344/2023 further draws strength from the counter reply and submits that in the instant case the post reserved for PwBD was to be assigned to an SC candidate and Lakhender Kumar Paswan figuring at serial number 7 being an SC candidate was entitled to get the benefit of further reservation as a PwBD.
11. We have heard the learned counsel for the parties at length. We have also carefully gone through the pleadings on record specifically to the judgments extensively quoted by the learned senior advocate representing the applicant.
12. We are of the considered view that there is no ambiguity whatsoever in the entire matter. We are dealing with a case of reservation for persons with benchmark disabilities and not reservation in any other category. This reservation is provided for by the Rights of Persons With Disabilities Act, 2016, and adequately elaborated vide Section 34 of the said Act. The procedure has been explained vide Rule 11 of the Rules framed therein. Both Section 34 and Rule 11 have been quoted verbatim in one of the preceding paragraphs of this order.
22Item No. 25 (C-3) O.A. No. 1344/2023
13. There is no doubt that the persons with disabilities is a separate class and reservation is provided to them on account of their belonging to a separate class and not vice versa. Here, what the respondents have done is that first they have reserved the positions for SC, ST and unreserved candidates and thereafter, assigned one of the places to the persons with disabilities. Whereas, in terms of the provisions of the Act and Rules, further clarified and given administrative force by way of DoP&T O.M., selection is to be made to an eligible person belonging to PwBD against the quota reservation for them. Thereafter, the said selected candidate belonging to the PwBD is to be assigned to a particular category as per his status. This would be in accordance with both the word and spirit of the law, as also other provisions governing the subject. Although there is no cause for any doubt in interpreting the provisions of the Act, rules and instructions, the judgments of the Hon'ble Supreme Court quoted above leave absolutely no scope for even an iota of doubt.
14. In view of what has been discussed and detailed above, the present O.A. is allowed and the communication dated 23 Item No. 25 (C-3) O.A. No. 1344/2023 06.04.2023, impugned in the present O.A., is quashed and set aside.
15. As a sequel to the same, the respondents are directed to conduct the entire process de-nuvo strictly in accordance with the provisions of the Act, Rules and instructions extensively quoted above. To clarify, the reservation will be for persons with disabilities without any further reservation into a particular category or class. It is only after the selection of the eligible and qualified person, in accordance with merit, shall he be assigned a place in the appropriate class/ category be it unreserved or SC or ST. This would satisfy the requirements of the Act in letter and spirit. The O.A. stands allowed against the background of these directions.
16. There shall be no order as to costs.
(Pratima K. Gupta) (Tarun Shridhar)
Member (J) Member (A)
/dd/