Delhi High Court
Delhi Subordinate Services Selection ... vs Tapan Neeraj And Ors. on 23 July, 2014
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat, Vipin Sanghi
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23.07.2014
+ W.P.(C) 814/2014, C.M. NO.1633/2014
DELHI SUBORDINATE SERVICES SELECTION BOARD
AND ANR. ..... Petitioners
Through: Ms. Zubeda Begum, Standing Counsel
(Civil), for DSSSB.
versus
TAPAN NEERAJ AND ORS. ..... Respondents
Through : Ms. Jyoti Singh, Sr. Advocate with Sh.
Padma Kumar. S., Ms. Tinu Bajwa, Sh. Amandeep Joshi and Sh. Sameer Sharma, Advocates.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %
1. The Delhi Subordinate Services Selection Board (DSSSB) claims to be aggrieved by the order of the Central Administrative Tribunal (CAT) dated 22.05.2013 in O.A. No. 271/2012. The impugned order had directed the appointment of the respondent (hereafter called "the candidate") against vacancies that existed in the department. The concerned department which had declared the W.P.(C) 814/2014 Page 1 vacancies and in respect of whose posts the appointments were directed, is the Department of Social Welfare, Govt. of NCT of Delhi (hereafter referred to as "the GNCTD"). At the outset, this Court notices that the GNCTD has not impugned the order of the CAT.
2. On the contrary, apparently the GNCTD has accepted the decision of the CAT and is in the process of appointing the candidates
- evident from its letters dated 12.08.2013 and 12.02.2014 produced before the Court. The candidate had approached the CAT, stating that he had participated in a selection process for filling up the vacancies in the cadre of Welfare Officer Grade-II in the GNCTD. This was pursuant to the requisitions made in the years 2005 and 2007. The respondent candidate secured 140 marks and appeared as an unreserved category candidate. It is not in dispute that at that point of time, the GNCTD had neither segregated or earmarked specific vacancies nor reserved any posts, including the post of Welfare Officer Grade-II under the Disabilities Act. Consequently, no reservation was indicated in either the requisition or the advertisement.
In this background, even though the respondent candidate fared well and ranked 15th in the overall merit list, and 8th, if the candidate were to be deemed as part of the "reserved category", he could not be appointed. He, therefore, approached the CAT. The respondent candidate had approached the CAT on an earlier occasion unsuccessfully and then was permitted by this Court in proceedings under Article 226 of the Constitution to file a fresh application. Upon his approaching this Court under Article 226, he was granted liberty to W.P.(C) 814/2014 Page 2 agitate the matter afresh with specific pleadings on the question of reservations under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereafter referred to as "the Disabilities Act"). Availing of the liberty, the respondent candidate approached the CAT complaining that the denial of selection and appointment by the petitioner and the GNCTD defeated his rights under the Disabilities Act. By the impugned order, the CAT accepted the contentions and directed the GNCTD to process his candidature by giving effect to the horizontal reservation available in the year 2007, and pass consequential orders within three months.
3. Learned counsel for the DSSSB contends that the impugned order is erroneous in law because it, in effect, has directed the carving- out of reservation when no such reservation was indicated either in the requisition or in the advertisement. Learned counsel relied upon the Division Bench judgment of this Court in Babita Pathak and Ors. v. High Court of Delhi and Ors. 2013 (135) DRJ 382. It was submitted that unless a reservation is expressly notified for a particular year, a candidate who chooses to apply and participate in the selection process without protesting against the absence of such notification, cannot be allowed to claim the benefit of reservation or vacancies which, according to him, should have been notified in the first instance.
4. This Court has considered the submissions. In the decision of the Supreme Court reported as Govt. of India thr. Secretary and Anr. v. Ravi Prakash Gupta and Anr. 2010 (7) SCC 626, the Court held that W.P.(C) 814/2014 Page 3 even though there is an obligation under Section 32 of the Disabilities Act to identify posts for the purpose of reservation under Section 33, the absence of such exercise or the failure of the government to carry- out the identification process would not result in defeating the reservation itself. The Court observed, "..............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. " This aspect was again clarified later, to say that reservation under Section 33 is not dependent on identification, as urged, and that a duty is cast upon the State to mark appointments in the posts reserved in the three categories mentioned in Section 33. The argument of the petitioner in this case is another facet of the same submission which was rejected. The Supreme Court was decisive in holding that the failure to identify the post did not defeat the right of reservation. Equally, it would be a sequitor that a non-notification of post in a particular year or in a particular recruitment process, when concededly such vacancies existed within the department, cannot upset the right of a candidate who would otherwise be entitled to claim such reservation. This Court is of the opinion that any other opinion would in fact be defeating the special rights created under the Disabilities Act. The view in Ravi Prakash Gupta (supra) was fully endorsed by the Supreme Court subsequently in UOI v. National Federation of the Blind and Ors. 2013 (10) SCC 772, where the Court, after examining the provisions of the Disabilities Act held as follows:
"30. Apart from the reasoning of this Court in Ravi Prakash Gupta (supra), even a reading of Section 33, at the W.P.(C) 814/2014 Page 4 outset, establishes vividly the intention of the legislature viz., reservation of 3% for differently abled persons should have to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts. There is no ambiguity in the language of Section 33 and from the construction of the said statutory provision only one meaning is possible.
31. A perusal of Section 33 of the Act reveals that this section has been divided into three parts. The first part is "every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability." It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the Section.
32. The second part of this section starts as follows: "...of which one percent each shall be reserved for persons suffering from blindness or low vision, hearing impairment & locomotor disability or cerebral palsy in the posts identified for each disability." From the above, it is clear that it deals with distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word "of which". The word "of which" has to relate to appointing not less than 3% vacancies in an establishment and, in any way, it does not refer to the identified posts. In fact, the contention of the Union of India is sought to be justified by bringing the last portion of the second part of the section viz. "....identified posts" in this very first part which deals with the statutory obligation imposed upon the appropriate Government to "appoint not less than 3% vacancies for the persons or class of persons with disabilities." In our considered view, it is not plausible in the light of established rules of interpretation. The W.P.(C) 814/2014 Page 5 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.
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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 W.P.(C) 814/2014 Page 6 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.
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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."
W.P.(C) 814/2014 Page 7
5. The National Federation of the Blind (supra) was also concerned with the validity of the Office Memorandum dated 26.04.2006 and the previous memoranda, which were applicable in the matter. In terms of the said notification, the Central Government emphasized the need to take steps to fill all existing vacancies arising under the Disabilities Act and that if vacancies persisted for a period beyond two years, they were to be treated as lapsed. This Office Memorandum was sought to be amended on 10.12.2008. The Supreme Court in National Federation of the Blind (supra) was of the opinion that a proper order modifying the Office Memorandum dated 29.12.2005, consistent with its order, had to be issued. It also directed all State Governments to compute the number of vacancies, especially after identifying all posts for the disabled, within three months from the date of judgment.
6. There cannot be any doubt about the binding nature of the declaration of law in the Supreme Court's judgment, especially in the National Federation of the Blind (supra). Consequently, if indeed there were certain vacancies that had to be earmarked for persons with disabilities in terms of the Disabilities Act, to be filled by them, that mandate had to necessarily be fulfilled. That a particular agency did not identify a post in a given recruitment year, even though vacancies existed, or one or the other State agency failed to notify it in the advertisement, cannot defeat the rights which otherwise exists. In the context of the present case, we notice that the recruiting department, i.e. the Department of Social Welfare, in its counter W.P.(C) 814/2014 Page 8 affidavit filed before the CAT, had categorically stated that there were vacant posts of Welfare Office Grade-II in the Department and that even otherwise, at the stage of selection and initiation of recruitment process, the advertisement had clearly indicated that the vacancies specified were provisional and subject to change. Considering all these aspects, and the further circumstance that the GNCTD is not before this Court complaining that the directions of the CAT had in any manner adversely impacted its functioning, we are of the opinion that the writ petition at the behest of the DSSSB lacks in merit. It is accordingly dismissed.
S. RAVINDRA BHAT (JUDGE) VIPIN SANGHI (JUDGE) JULY 23, 2014 W.P.(C) 814/2014 Page 9