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Tuesday, 8 October 2013

JUDGEMENT OF THE HONBLE SUPREME COURT IN SLP NO. 7541 OF 2009 FILED BY THE NATIONAL FEDERATION OF THE BLIND & ORS

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9096 OF 2013
(Arising out of SLP (Civil) No. 7541 of 2009)
Union of India & Anr. .... Appellant(s)
Versus
National Federation of
the Blind & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, CJI.
1) Leave granted.
2) This appeal is directed against the final judgment and order
dated 19.12.2008 passed by the High Court of Delhi at New Delhi
in Writ Petition (C) No. 15828 of 2006 wherein the High Court
interpreted Section 33 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 (in short ‘the Act’) and issued various directions to be
complied with by the appellants herein.
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3) Brief facts:
(a) National Federation of the Blind-Respondent No. 1 herein is
an apex organization and a society registered under the Societies
Registration Act, 1860, having its Head Office at New Delhi and is
working for the protection of the rights of the visually challenged.
(b) In the year 2006, Respondent No. 1 herein filed a writ
petition before the High Court in public interest seeking
implementation of Section 33 of the Act alleging that the
appellants herein have failed to provide reservation to the blind
and low vision persons and they are virtually excluded from the
process of recruitment to the Government posts as stipulated
under the said Act.
(c) In the above backdrop, it is relevant to mention that way
back in 1977, the erstwhile Ministry of Social Welfare, Government
of India, made reservation in favour of the following three
categories of disabled persons in Group C & D posts to the extent
of 1 per cent each for the (i) Blind; (ii) Hearing and Speech
Impairment; and (iii) persons suffering from locomotor disability.
In the year 1986, the Department of Personnel & Training (DoPT),
directed all the departments to take into account both identified
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and unidentified posts for working out the total number of
vacancies to be reserved for each of the disabled categories. In
spite of the above said executive order, various government
departments and public sector undertakings did not give effect to
the scheme of reservation which compelled Respondent No. 1
herein to organize a nation wide agitation, as a result of which, an
agreement was arrived at between the parties on 27.08.1987 to
undertake a Special Recruitment Drive for clearing up the backlog
of vacancies.
(d) On 07.02.1996, the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 was brought into force making reservation of at least 3
percent posts in all government establishments to the extent of 1
per cent each for the persons suffering from (i) blindness or low
vision; (ii) hearing impairment; and (iii) locomotor disability or
cerebral palsy. After enactment of the said Act, Union of India
issued various orders for ensuring proper implementation of the
provisions of the Act for the persons with disabilities.
(e) Respondent No. 1 herein, by filing the above said petition
before the High Court asserted that despite statutory provisions
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and various executive orders, discrimination against the persons
with disabilities continued in filling up the vacancies in various
government departments whereas it was contended by the other
side that the Office Memorandum (OM) dated 29.12.2005, issued
by the Department of Personnel & Training, inter alia provides a
system for ensuring proper implementation of the provisions of
the Act for the persons with disabilities.
(f) Vide order dated 19.12.2008, the High Court disposed of the
petition directing the Union of India to modify the OM dated
29.12.2005 being inconsistent with the provisions of Section 33 of
the Act and issued several other directions.
(g) Being aggrieved of the above, the appellants have preferred
this appeal by way of special leave before this Court.
(h) Tamil Nadu Handicapped Federation Charitable Trust, Smt S.
Rajeswari and Association for Physically Challenged People
Ordnance Clothing Factory filed applications for impleadment.
Vide order dated 22.07.2011, this Court did not allow them to
implead but to act as intervenors in the proceedings.
4) Heard Ms. Indra Jaisingh, learned Additional Solicitor General
for the Union of India, Mr. S.K. Rungta, learned senior counsel (R-
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1) appearing in person and Mr. R. Prabhakaran, learned counsel
for Intervenors.
Submissions:
5) Ms. Indra Jaisingh, learned Additional Solicitor General for the
Union of India, after taking us through various provisions of the
Act and OM(s) issued by the Government of India submitted that
the impugned judgment of the High Court is against the provisions
of the Act. She further pointed out that the finding of the High
Court that in terms of Section 33 of the Act, 3% reservation for the
disabled persons has to be computed on the basis of total
strength of the cadre, i.e., both identified as well as unidentified
posts is erroneous. In any event, according to her, the direction of
the High Court to work out backlog vacancies for the disabled
persons on the total cadre strength in different establishments
within one month from the date of the order is impractical and not
executable. It is further highlighted that according to Section 33
of the Act, reservation to the persons with disabilities in an
establishment shall be 3% of the vacancies arising in the posts
which are identified for the persons with disabilities. The High
Court, by the impugned judgment, disturbed the very basic
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system of the reservation of posts for the persons with disabilities.
She further highlighted that the reservation for Group C and D
posts is being calculated on the basis of the vacancies in identified
as well as unidentified posts prior to the Act came into existence
and in view of the provisions of Section 72 of the Act, continued in
the same way, however, reservation for Group A and B posts is
being calculated on the basis of the vacancies for identified posts
as per the provisions of the Act.
6) On the other hand, Mr. S.K. Rungta, learned senior counsel
(R-1) appearing in person submitted that in terms of the
provisions of the Act, more particularly, Sections 32 and 33 of the
Act, it is obligatory on the part of the Government establishments
to provide at least 3% reservation of posts in the total cadre
strength and not in the identified vacancies. He further pointed
out that though the Act was passed in 1995 since then the
provisions have not been strictly implemented. He prayed for
further time bound direction for implementation of the same.
7) Mr. R. Prabhakaran, learned counsel for intervenors
reiterated the submissions made by Mr. S.K. Rungta.
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8) We have perused all the relevant materials and considered
the rival submissions.
Relevant Provisions:
9) In order to answer the rival contentions, it is desirable to
quote the relevant provision of the Act. Sections 2(a), 2(i), 2(j) and
2(k) of the Act read as under:
“2(a) “appropriate Government” means,-
(i) in relation to the Central Government or any
establishment wholly or substantially financed by that
Government, or a Cantonment Board constituted under
the Cantonment Act, 1924 (2 of 1924), the Central
Government;
(ii) in relation to a State Government or any establishment
wholly or substantially financed by that Government or
any local authority, other than a Cantonment Board, the
State Government;
(iii) in respect of the Central Co-ordination Committee and the
Central Executive Committee, the Central Government;
(iv) in respect of the State Co-ordination Committee and the
State Executive Committee, the State Government;
2(i) "Disability" means-
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(vii) mental illness;
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2(j) "employer" means,-
(i) in relation to a Government, the authority notified by
the Head of the Department in this behalf or where no
such authority is notified, the Head of the Department;
and
(ii) in relation to an establishment, the Chief Executive
Officer of that establishment;
2(k) "establishment" means a corporation established by or
under a Central, Provincial or State Act, or an authority or a
body owned or controlled or aided by the Government or a local
authority or a Government company as defined in section 617 of
the Companies Act, 1956 (1 of 1956) and includes Departments
of a Government;”
10) Among the above definitions, we are more concerned with
the definition of “establishment” under Section 2(k) of the Act,
which is an exhaustive definition and covers (i) a corporation
established by or under a Central, Provincial or State Act, or (ii) an
authority or a body owned or controlled or aided by the
Government or a local authority, or (iii) a Government company as
defined in Section 617 of the Companies Act, 1956 and (iv)
Departments of a Government.
11) Chapter VI of the Act deals with the employment of persons
with disabilities. The relevant Sections of the said Chapter are as
under:-
“32. Identification of posts which can be reserved for
persons with disabilities. - Appropriate Governments shall-
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(a)identify posts, in the establishments, which can be
reserved for the persons with disability;
(b)at periodical intervals not exceeding three years, review
the list of posts identified and up-date the list taking into
consideration the developments in technology.
33. Reservation of Posts - Every appropriate Government
shall appoint in every establishment such percentage of
vacancies not less than three per cent for persons or class of
persons with disability of which one per cent each shall be
reserved for persons suffering from-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy,
in the posts identified for each disability:
Provided that the appropriate Government may, having
regard to the type of work carried on in any department or
establishment, by notification subject to such conditions, if any,
as may be specified in such notification, exempt any
establishment from the provisions of this section.
36. Vacancies not filled up to be carried forward.- Where
in any recruitment year any vacancy under section 33, cannot
be filled up due to non-availability of a suitable person with
disability or, for any other sufficient reason, such vacancy shall
be carried forward in the succeeding recruitment year and if in
the succeeding recruitment year also suitable person with
disability is not available, it may first be filled by interchange
among the three categories and only when there is no person
with disability available for the post in that year, the employer
shall fill up the vacancy by appointment of a person, other than
a person with disability:
Provided that if the nature of vacancies in an
establishment is such that a given category of person cannot be
employed, the vacancies may be interchanged among the three
categories with the prior approval of the appropriate
Government.”
12) In exercise of the powers conferred by sub-sections (1) and
(2) of Section 73 of the Act, the Central Government enacted the
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Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Rules, 1996.
13) After enactment of the above Act, in order to consolidate the
existing instructions in line with the provisions of the Act, on
29.12.2005, Government of India, Department of Personnel and
Training, issued certain instructions by way of an Office
Memorandum (OM), with regard to the reservation for the persons
with disabilities (physically handicapped persons) in posts and
services. The said Office Memorandum specifically states that it
shall supersede all previous instructions issued on the subject so
far. Respondent No. 1 herein has commended various clauses of
the OM dated 29.12.2005. The relevant clauses of the same are
extracted hereinbelow:
“2. QUANTUM OF RESERVATION
(i) Three percent of the vacancies, in case of direct
recruitment to Group A, B, C and D posts shall be reserved for
persons with disabilities of which one per cent each shall be
reserved for persons suffering from (i) blindness or low vision,
(ii) hearing impairment and (iii) locomotor disability or cerebral
palsy in the posts identified for each disability;
(ii) Three percent of the vacancies in case of promotion to
Group D, and Group C posts in which the element of direct
recruitment, if any, does not exceed 75%, shall be reserved for
persons with disabilities of which one per cent each shall be
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reserved for persons suffering from (i) blindness or low vision,
(ii) hearing impairment and (iii) locomotor disability or cerebral
palsy in the posts identified for each disability.
3. EXEMPTION FROM RESERVATION:
If any Department/Ministry considers it necessary to exempt any
establishment partly or fully from the provisions of reservation
for persons with disabilities of which one percent each shall be
reserved for persons suffering from (i) blindness or low vision,
(ii) hearing impairment and (iii) locomotor disability or cerebral
palsy in the posts identified for each disability, it may make a
reference to the Ministry of Social Justice and Employment
giving full justification for the proposal. The grant of exemption
shall be considered by an Inter-Departmental Committee set up
by the Ministry of Social Justice and Empowerment.
4. IDENTIFICATION OF JOBS/POSTS:
The Ministry of Social Justice and Empowerment have identified
the jobs/posts suitable to be held by persons with disabilities
and the physical requirement for all such jobs/posts vide their
notification no. 16-25/99.NII dated 31.5.2001. The jobs/posts
given in Annexure II of the said notification as amended from
time to time shall be used to give effect to 3 per cent
reservation to the persons with disabilities. It may, however, be
noted that:
(a) The nomenclature used for any job/post shall mean and
include nomenclature used for other comparable jobs/posts
having identical functions.
(b) The list of jobs/posts notified by the Ministry of Social
Justice & Empowerment is not exhaustive. The concerned
Ministries/Departments shall have the discretion to identify
jobs/posts in addition to the jobs/posts already identified by the
Ministry of Social Justice & Empowerment. However, no
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Ministry/Department/Establishment shall exclude any identified
job/post from the purview of reservation at its own discretion.
(c) If a job/post identified for persons with disabilities is
shifted from one group or grade to another group or grade due
to change in the pay-scale or otherwise, the job/post shall
remain identified.
13. COMPUTATION OF RESERVATION:
Reservation for persons with disabilities in case of Group C and
Group D posts shall be computed on the basis of total number of
vacancies occurring in all Group C or Group D posts, as the case
may be, in the establishment, although the recruitment of the
persons with disabilities would only be in the posts identified
suitable for them. The number of vacancies to be reserved for
the persons with disabilities in case of direct recruitment to
Group C posts in an establishment shall be computed by taking
into account the total number of vacancies arising in Group C
posts for being filled by direct recruitment in a recruitment year
both in the identified and non-identified posts under the
establishment. The same procedure shall apply for Group D
posts. Similarly, all vacancies in promotion quota shall be taken
into account while computing reservation in promotion in Group
C and Group D posts. Since reservation is limited to identified
posts only and number of vacancies reserved is computed on
the basis of total vacancies (in identified posts as well as
unidentified posts), it is possible that number of persons
appointed by reservation in an identified posts may exceed 3
percent.
14. Reservation for persons with disabilities in Group A posts
shall be computed on the basis of vacancies occurring in direct
recruitment quota in all the identified Group A posts in the
establishment. The same method of computation applies for
Group B posts.
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15. EFFECTING RESERVATION - MAINTENANCE OF
ROSTERS:
(a) all establishments shall maintain separate 100 point
reservation roster registers in the format given in Annexure II for
determining/effecting reservation for the disabled - one each for
Group A posts filled by direct recruitment, Group B posts filled
by direct recruitment, Group C posts filled by direct recruitment,
Group C posts filled by promotion, Group D posts filled by direct
recruitment and Group D posts filled by promotion.
(b) Each register shall have cycles of 100 points and each cycle
of 100 points shall be divided into three blocks, comprising the
following points :
1st Block - point No.1 to point No.33
2nd Block - point No.34 to point No.66
3rd Block - point No.67 to point No.100
(c) Points 1, 34, and 67 of the roster shall be earmarked
reserved for persons with disabilities - one point for each of the
three categories of disabilities. The head of the establishment
shall decide the categories of disabilities for which the points 1,
34 and 67 will be reserved keeping in view all relevant facts.
(d) All the vacancies in Group C posts falling in direct
recruitment quota arising in the establishment shall be entered
in the relevant roster register. If the post falling at point No.1 is
not identified for the disabled or the head of the establishment
considers it desirable not to fill up by a disabled person or it is
not possible to fill up that post by the disabled for any other
person, one of the vacancies falling at any of the points from 2
to 33 shall be treated as reserved for the disabled and filled as
such. Likewise a vacancy falling at any of the points from 34 to
66 or from 67 to 100 shall be filled by the disabled. The purpose
of keeping points 1, 34 and 67 as reserved is to fill up the first
available suitable vacancy from 1 to 33, first available suitable
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vacancy from 34 to 66 and first available suitable vacancy from
67 to 100 persons with disabilities.
(e) There is a possibility that none of the vacancies from 1 to 33
is suitable for any category of the disabled. In that case two
vacancies from 34 to 66 shall be filled as reserved for persons
with disabilities. If the vacancies from 34 to 66 are also not
suitable for any category, three vacancies shall be filled as
reserved from the third block containing points from 67 to 100.
This means that if no vacancy can be reserved in a particular
block, it shall be carried into the next block.
(f) After all the 100 points of the roster are covered, a fresh
cycle of 100 points shall start.
(g) If the number of vacancies in a year is such as to cover only
one block or two, discretion as to which category of the disabled
should be accommodated first shall vest in the head of the
establishment, who shall decide on the basis of the nature of the
post, the level of representation of the specific disabled category
in the concerned grade/post etc.
(h) A separate roster shall be maintained for Group C posts filled
by promotion and procedure as explained above shall be
followed for giving reservation to persons with disabilities.
Likewise two separate rosters shall be maintained for Group D
posts, one for the posts filled by direct recruitment and another
for posts filled by promotion.
(i) Reservation in Group A and Group B posts is determined on
the basis of vacancies in the identified posts only. Separate
rosters for Group A posts and Group B posts in the
establishment shall be maintained. In the rosters maintained for
Group A and Group B posts, all vacancies of direct recruitment
arising in identified posts shall be entered and reservation shall
be effected the same way as explained above.
16. INTER SE EXCHANGE AND CARRY FORWARD OF
RESERVATION IN CASE OF DIRECT RECRUITMENT
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(a) Reservation for each of the three categories of persons with
disabilities shall be made separately. But if the nature of
vacancies in an establishment is such that a person of a specific
category of disability cannot be employed, the vacancies may be
interchanged among the three categories with the approval of
the Ministry of Social Justice and Empowerment and reservation
may be determined and vacancies filled accordingly.
(b) If any vacancy reserved for any category of disability cannot
be filled due to non-availability of a suitable person with that
disability or, for any other sufficient reason, such vacancy shall
not be filled and shall be carried forward as a 'backlog reserved
vacancy' to the subsequent recruitment year.
(c) In the subsequent recruitment year the backlog reserved
vacancy shall be treated as reserved for the category of
disability for which it was kept reserved in the initial year of
recruitment. However, if a suitable person with that disability is
not available, it may be filled by interchange among the three
categories of disabilities. In case no suitable person with
disability is available for filling up the post in the subsequent
year also, the employer may fill up the vacancy by appointment
of a person other than a person with disability. If the vacancy is
filled by a person with disability of the category for which it was
reserved or by a person of other category of disability by inter
se exchange in the subsequent recruitment year, it will be
treated to have been filled by reservation. But if the vacancy is
filled by a person other than a person with disability in the
subsequent recruitment year, reservation shall be carried
forward for a further period upto two recruitment years
whereafter the reservation shall lapse. In these two subsequent
years, if situation so arises, the procedure for filling up the
reserved vacancy shall be the same as followed in the first
subsequent recruitment year.
19. HORIZONTALITY OF RESERVATION FOR PERSONS
WITH DISABILITIES:
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Reservation for backward classes of citizens (SCs, STs and OBCs)
is called vertical reservation and the reservation for categories
such as persons with disabilities and ex- servicemen is called
horizontal reservation. Horizontal reservation cuts across
vertical reservation (in what is called interlocking reservation)
and person selected against the quota for persons with
disabilities have to be placed in the appropriate category viz.
SC/ST/OBC/General candidates depending upon the category to
which they belong in the roster meant for reservation of
SCs/STs/OBCs. To illustrate, if in a given year there are two
vacancies reserved for the persons with disabilities and out of
two persons with disabilities appointed, one belongs to a
Scheduled Caste and the other to general category then the
disabled SC candidate shall be adjusted against the SC point in
the reservation roster and the general candidate against
unreserved point in the relevant reservation roster. In case none
of the vacancies falls on point reserved for the SCs, the disabled
candidate belonging to SC shall be adjusted in future against the
next available vacancy reserved for SCs.
20. Since the persons with disabilities have to be placed in the
appropriate category viz. SC/ST/OBC/ General in the roster
meant for reservation of SCs/STs/OBCs, the application form for
the post should require the candidates applying under the quota
reserved for persons with disabilities to indicate whether they
belong to SC/ST/OBC or General category.”
14) Clauses 21 and 22 of the said OM enable the Government for
relaxation in age limit as well as standard of suitability.
15) After the OM dated 29.12.2005, based on the
representations made by Respondent No. 1 herein, another OM
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dated 26.04.2006 came to be issued. The details and the
directions contained in the said OM are as follows:
“Dated the 26th April, 2006
OFFICE MEMORANDUM
Sub: Reservation for the Persons with Disabilities
The undersigned is directed to say that the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 which came into existence on
01.01.1996 provides for reservation for persons with disability in
the posts identified for three categories of disabilities namely (i)
blindness or low vision, (ii) hearing impairment and (iii)
locomotor disability or cerebral palsy. Instructions have also
been issued by this Department for providing reservation for
such persons. In spite of the Act and the instructions of this
Department, vacancies were not earmarked reserved or were
not filled by reservation in some establishments.
2. The matter has been considered carefully and it has been
decided that reservation for persons with disabilities should be
implemented in right earnest and there should be no deviation
from the scheme of reservation, particularly after the Act came
into effect. In order to achieve this objective, all the
establishments should prepare the reservation roster registers
as provided in this Department's O.M. No. 36035/3/2004-Estt
(Res) dated 29.12.2005 starting from the year 1996 and
reservation for persons with disabilities be earmarked as per
instructions contained in that OM. If some or all the vacancies
so earmarked had not been filled by reservation and were filled
by able bodied persons either for the reason that points of
reservation had not been earmarked properly at the appropriate
time or persons with disabilities did not become available, such
unutilized reservation may be treated as having been carried
forward to the first recruitment year occurring after issue of this
O.M. and be filled as such. If it is not possible to fill up such
reserved vacancies during the said recruitment year, reservation
would be carried forward for further two years, whereafter it
may be treated as lapsed.
3. It has been observed that some recruiting agencies declare in
their advertisements that blind/partially blind candidates need
not apply and that separate examinations would be conducted
for visually handicapped candidates. Attention is invited to para
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7 of this Department's O.M. No. 36035/3/2004-Estt (Res) dated
29.12.2005 which provides that persons with disabilities
selected on their own merit will not be adjusted against the
reserved share of vacancies. It means that persons with
disabilities who are selected on their own merit have to be
adjusted against the unreserved vacancies and reservation has
to be given in addition. If visually handicapped candidates or
any other category of handicapped candidates are debarred
from applying on the ground that a separate examination would
be conducted for them, chances of handicapped candidates
being selected on their own merit would be eliminated. Thus,
debarring of any category of handicapped candidates in the
above manner is against the provisions contained in the
aforesaid O.M. It is, therefore, requested that persons with
disabilities should not be debarred from applying for the posts
identified suitable for them and should be provided opportunity
to compete for the unreserved vacancies as well by holding a
common examination.
4. Contents of this O.M. may be brought to the notice of all
concerned.
Sd/-
(K.G.Verma)
Deputy Secretary to the Govt. of India”
16) Another OM dated 10.12.2008, issued by the Department of
Personnel and Training, was also brought to our notice
whereunder a Special Recruitment Drive to fill up the backlog
reserved vacancies for the persons with disabilities was initiated.
The said OM mainly speaks about filling up of “backlog reserved
vacancies”. Relevant portion of the said OM is extracted
hereinbelow:
“Dated the 10th December, 2008
OFFICE MEMORANDUM
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Sub: Special Recruitment Drive to fill up the backlog reserved
vacancies for Persons with Disabilities
The undersigned is directed to say that this Department's
O.M. No. 36035/3/2004-Estt(Res) dated 29.12.2005 provides that
if any vacancy reserved for any category of disability cannot be
filled due to non-availability of a suitable person with that
disability or for any other sufficient reason, such vacancy is not
filled and is carried forward as a 'backlog reserved vacancy' to
the subsequent recruitment year. In the subsequent recruitment
year, the 'backlog reserved vacancy' is treated as reserved for
the category of disability for which it was kept reserved in the
initial year of recruitment and filled as such. However, if a
suitable person with that disability is not available in the
subsequent recruitment also, it may be filled by interchange
among the three categories of disabilities, failing which by
appointment of a person other than a person with disability. It
may, thus, be seen that if a vacancy is earmarked reserved for
any category of disability and a suitable person with that
disability is not available to fill it up in the initial year of
recruitment, it becomes a 'backlog reserved vacancy' for first
subsequent recruitment year.
2. As per instructions existing prior to issue of O.M. dated
29.12.2005, if in any year, suitable physically handicapped
candidates were not available to fill up a reserved vacancy, the
vacancy was filled by an other category candidate and
reservation was carried forward for a period of upto three
recruitment years. In the event of non-availability of suitable
persons with disabilities, the reserved vacancies were not kept
unfilled. Thus there was no provision of backlog reserved
vacancies of persons with disabilities prior to 29.12.2005.
Nevertheless, it is possible that some Ministries/Departments/
establishments might have kept some vacancies earmarked
reserved for the persons with disability unfilled due to nonavailability
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
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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
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opportunities owing to technological advancement, however, the
actual limitation surfaces only when they are not provided with
equal opportunities. Therefore, bringing them in the society based
on their capabilities is the need of the hour.
21) Although, the Disability Rights Movement in India
commenced way back in 1977, of which Respondent No. 1 herein
was an active participant, it acquired the requisite sanction only at
the launch of the Asian and Pacific Decade of Disabled Persons in
1993-2002, which gave a definite boost to the movement. The
main need that emerged from the meet was for a comprehensive
legislation to protect the rights of persons with disabilities. In this
light, the crucial legislation was enacted in 1995 viz., the Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 which empowers persons with disabilities
and ensures protection of their rights. The Act, in addition to its
other prospects, also seeks for better employment opportunities
to persons with disabilities by way of reservation of posts and
establishment of a Special Employment Exchange for them.
22) For the same, Section 32 of the Act stipulates for
identification of posts which can be reserved for persons with
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disabilities. Section 33 provides for reservation of posts and
Section 36 thereof provides that in case a vacancy is not filled up
due to non-availability of a suitable person with disability, in any
recruitment year such vacancy is to be carried forward in the
succeeding recruitment year. The difference of opinion between
the appellants and the respondents arises on the point of
interpretation of these sections.
23) It is the stand of the Union of India that the Act provides for
only 3% reservation in the vacancies in the posts identified for the
disabled persons and not on the total cadre strength of the
establishment whereas Mr. S.K. Rungta, learned senior counsel
(R-1) appearing in person submitted that accepting the
interpretation proposed by the Union of India will flout the policy
of reservation encompassed under Section 33 of the Act. He
further submitted that the High Court has rightly held that the
reservation of 3% for differently abled persons in conformity with
the Act should have to be computed on the basis of the total
strength of a cadre and not just on the basis of the vacancies
available in the posts that are identified for differently abled
persons, thereby declaring certain clauses of the OM dated
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29.12.2005 as unacceptable and contrary to the mandate of
Section 33 of the Act.
24) Two aspects of the impugned judgment have been challenged
before this Court:-
(a) The manner of computing 3% reservation for the persons
with the disabilities as per Section 33 of the Act.
(b) Whether post based reservation must be adhered to or
vacancy based reservation.
25) Now let us consider the reasoning of the High Court and the
submissions made by the parties.
26) Primarily, we would like to clarify that there is a sea of
difference in computing reservation on the basis of total cadre
strength and on the basis of total vacancies (both inclusive of
identified and unidentified) in the cadre strength. At the outset, a
reference to the impugned OM dated 29.12.2005 would, in
unequivocal terms, establish that the matter in dispute in the
given case is whether the latter method of computation of
reservation will uniformly apply to the posts in Group A, B, C and D
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Page 24
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
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Page 25
number of vacancies in the cadre strength. However, it was also
admitted that the computation of reservation is being done in
respect of Group C and D posts on the basis of total number of
vacancies (both inclusive of identified and unidentified) in the
cadre strength since 1977. In fact, the abovesaid contention has
been raised in Govt. of India through Secretary and Anr. vs.
Ravi Prakash Gupta & Anr. (2010) 7 SCC 626 and, therefore, it
is no longer res integra.
28) The question for determination raised in this case is whether
the reservation provided for the disabled persons under Section
33 of the Act is dependent upon the identification of posts as
stipulated by Section 32. In the aforementioned case, the
Government of India sought to contend that since they have
conducted the exercise of identification of posts in civil services in
terms of Section 32 only in the year 2005, the reservation has to
be computed and applied only with reference to the vacancies
filled up from 2005 onwards and not from 1996 when the Act
came into force. This Court, after examining the inter-dependence
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of Sections 32 and 33 viz., identification of posts and the scheme
of reservation, rejected this contention and held as follows:-
“25. …..The submission made on behalf of the Union of India
regarding the implementation of the provisions of Section 33 of
the Disabilities Act, 1995, only after identification of posts
suitable for such appointment, under Section 32 thereof, runs
counter to the legislative intent with which the Act was enacted.
To accept such a submission would amount to accepting a
situation where the provisions of Section 33 of the aforesaid Act
could be kept deferred indefinitely by bureaucratic inaction.
Such a stand taken by the petitioners before the High Court was
rightly rejected. Accordingly, the submission made on behalf of
the Union of India that identification of Grade `A' and `B' posts
in the I.A.S. was undertaken after the year 2005 is not of much
substance.
26. As has been pointed out by the High Court, neither Section
32 nor Section 33 of the aforesaid Act makes any distinction
with regard to Groups A, B, C and D posts. They only speak of
identification and reservation of posts for people with
disabilities, though the proviso to Section 33 does empower the
appropriate Government to exempt any establishment from the
provisions of the said Section, having regard to the type of work
carried on in any department or establishment. No such
exemption has been pleaded or brought to our notice on behalf
of the petitioners.
27. It is only logical that, as provided in Section 32 of the
aforesaid Act, posts have to be identified for reservation for the
purposes of Section 33, but such identification was meant to be
simultaneously undertaken with the coming into operation of the
Act, to give effect to the provisions of Section 33. The legislature
never intended the provisions of Section 32 of the Act to be used
as a tool to deny the benefits of Section 33 to these categories
of disabled persons indicated therein. Such a submission strikes
at the foundation of the provisions relating to the duty cast upon
the appropriate Government to make appointments in every
establishment.
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Page 27
29. While it cannot be denied that unless posts are identified for
the purposes of Section 33 of the aforesaid Act, no
appointments from the reserved categories contained therein
can be made, and that to such extent the provisions of Section
33 are dependent on Section 32 of the Act, as submitted by the
learned ASG, but the extent of such dependence would be for
the purpose of making appointments and not for the purpose of
making reservation. In other words, reservation under Section
33 of the Act is not dependent on identification, as urged on
behalf of the Union of India, though a duty has been cast upon
the appropriate Government to make appointments in the
number of posts reserved for the three categories mentioned in
Section 33 of the Act in respect of persons suffering from the
disabilities spelt out therein. In fact, a situation has also been
noticed where on account of non-availability of candidates some
of the reserved posts could remain vacant in a given year. For
meeting such eventualities, provision was made to carry forward
such vacancies for two years after which they would lapse. Since
in the instant case such a situation did not arise and posts were
not reserved under Section 33 of the Disabilities Act, 1995, the
question of carrying forward of vacancies or lapse thereof, does
not arise.
31. We, therefore, see no reason to interfere with the judgment
of the High Court impugned in the Special Leave Petition which
is, accordingly, dismissed with costs. All interim orders are
vacated. The petitioners are given eight weeks' time from today
to give effect to the directions of the High Court.”
29) In the light of the above pronouncement, it is clear that the
scope of identification comes into picture only at the time of
appointment of a person in the post identified for disabled persons
and is not necessarily relevant at the time of computing 3%
reservation under Section 33 of the Act. In succinct, it was held in
Ravi Prakash Gupta (supra) that Section 32 of the Act is not a
precondition for computation of reservation of 3% under Section
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Page 28
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
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Page 29
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
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Page 30
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
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Page 31
specified in such notification, exempt any establishment from the
provisions of this section.” The proviso also justifies the above said
interpretation that the computation of reservation has to be
against the total number vacancies in the cadre strength and not
against the identified posts. Had the legislature intended to
mandate for computation of reservation against the identified
posts only, there was no need for inserting the proviso to Section
which empowers the appropriate Government to exempt any
establishment either partly or fully from the purview of the Section
subject to such conditions contained in the notification to be
issued in the Official Gazette in this behalf. Certainly, the
legislature did not intend to give such arbitrary power for
exemption from reservation for persons with disabilities to be
exercised by the appropriate Government when the computation
is intended to be made against the identified posts.
34) In this regard, another provision of the said Act also supports
this interpretation. Section 41 of the said Act mandates the
appropriate Government to frame incentive schemes for
employers with a view to ensure that 5% of their work force is
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Page 32
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
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Reserved for Persons with Benchmark Disabilities:
Appropriate Governments shall – (a) identify posts in
establishments under them which can be reserved for persons
with benchmark disability as mentioned in section 39;
(b) at periodical intervals not exceeding three years, review and
revise the list of identified posts, taking into consideration
developments in technology.
Section 39. Reservation of Posts for Persons with
Benchmark Disabilities:-
(1) Every appropriate Government shall reserve, in every
establishment under them, not less than 5% of the vacancies
meant to be filled by direct recruitment, for persons or class of
persons with benchmark disability, of which 1% each shall be of
all posts reserved for persons with following disabilities:-
i) blindness & low vision (with reservation of 0.5% of the
vacancies for each of the two disabilities).
ii) hearing impairment & speech impairment.
iii) locomotor disability including cerebral palsy, leprosy cured
and muscular dystrophy.
iv) autism, intellectual disability and mental illness
v) multiple disabilities from among i to iv above including
deaf blindness
Provided that the appropriate Government may, having regard
to the type of work carried on in any department or
establishment, by notification subject to such conditions, if any,
as may be specified in such notification, exempt any
establishment from the provisions of this section.
(2) If sufficient number of qualified persons with benchmark
disabilities are not available in a particular year, then the
reservation may be carried forward for upto the next three
recruitment years, and if in such succeeding recruitment years
also a suitable person with benchmark disability is not available,
then the post in the fourth year may be first filled by
interchange among the categories of disabilities; and only when
there is no person with any benchmark disability available for
the post in that year, the vacancy may be filled by appointment
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of a person, other than a person with benchmark disability.”
A perusal of Sections 38 and 39 of the Bill clarifies all the
ambiguities raised in this appeal. The intention of the legislature
is clearly to reserve in every establishment under the appropriate
Government, not less than 3% of the vacancies for the persons or
class of persons with disability, of which 1% each shall be reserved
for persons suffering from blindness or low vision, hearing
impairment and locomotor disability or cerebral palsy in the posts
identified for each disability.
36) Admittedly, the Act is a social legislation enacted for the
benefit of persons with disabilities and its provisions must be
interpreted in order to fulfill its objective. Besides, it is a settled
rule of interpretation that if the language of a statutory provision
is unambiguous, it has to be interpreted according to the plain
meaning of the said statutory provision. In the present case, the
plain and unambiguous meaning of Section 33 is that every
appropriate Government has to appoint a minimum of 3%
vacancies in an establishment out of which 1% each shall be
reserved for persons suffering from blindness and low vision,
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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
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Page 36
blindness, the above interpretation of the Section would be
against the administrative exigencies. Such an argument is wholly
misconceived. A given post may not be identified as suitable for
one category of disability, the same could be identified as suitable
for another category or categories of disability entitled to the
benefit of reservation. In fact, the second part of the Section has
clarified this situation by providing that the number of vacancies
equivalent to 1% for each of the aforementioned three categories
will be filled up by the respective category by using vacancies in
identified posts for each of them for the purposes of appointment.
38) It has also been submitted on behalf of the appellants herein
that since reservation of persons with disabilities in Group C and D
has been in force prior to the enactment and is being made
against the total number of vacancies in the cadre strength
according to the OM dated 29.12.2005 but the actual import of
Section 33 is that it has to be computed against identified posts
only. This argument is also completely misconceived in view of the
plain language of the said Section, as deliberated above. Even, for
the sake of arguments, if we accept that the computation of
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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
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the OM dated 29.12.2005 dealing with the issue of identification of
jobs/posts in sub clause (b) states that list of the jobs/posts
notified by the Ministry of Social Justice & Empowerment is not
exhaustive which further makes the computation of reservation
uncertain and arbitrary in the event of acceptance of the
contention raised by the appellants.
40) Another contention raised by the appellants is that the
computation of reservation against the total vacancies in the
cadre strength in Group A & B will violate the rule of 50% ceiling of
reservation in favour of SC, ST and OBC as laid down by this Court
in Indra Sawhney vs. Union of India and others AIR 1993 SC
477. This contention is also not tenable and is against the
abovesaid judgment. It is difficult to understand as to how the
computation of reservation against total vacancies in the cadre
strength in Group A and B will violate 50% ceiling when its
computation on that basis in Group C and D will not violate the
said ceiling. There is no rationale of distinguishing between the
manner of computation of reservation with regard to Group A and
B posts on the one hand and manner of computation of
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Page 39
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
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'horizontal reservations'. The reservations in favour of
Scheduled Castes, Scheduled Tribes and other backward classes
[under Article 16(4)] may be called vertical reservations
whereas reservations in favour of physically handicapped [under
Clause (1) of Article 16] can be referred to as horizontal
reservations. Horizontal reservations cut across the vertical
reservations - what is called inter-locking reservations. To be
more precise, suppose 3% of the vacancies are reserved in
favour of physically handicapped persons; this would be a
reservation relatable to Clause (1) of Article 16. The persons
selected against this quota will be placed in the appropriate
category; if he belongs to S.C. category he will be placed in that
quota by making necessary adjustments; similarly, if he belongs
to open competition (O.C.) category, he will be placed in that
category by making necessary adjustments. Even after
providing for these horizontal reservations, the percentage of
reservations in favour of backward class of citizens remains -
and should remain - the same……”
42) Yet another contention raised by the appellants is that the
reservation for persons with disabilities must be vacancy based
reservation whereas Respondent No. 1 herein contended that it
must be post based reservation as laid down by the High Court in
the impugned judgment. Respondent No. 1 herein relied upon the
heading of Section 33 of the Act, viz., ‘Reservation of Posts’, to
propose the view that the reservation policy contemplated under
Section 33 is post based reservation.
43) It is settled law that while interpreting any provision of a
statute the plain meaning has to be given effect and if language
therein is simple and unambiguous, there is no need to traverse
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beyond the same. Likewise, if the language of the relevant
section gives a simple meaning and message, it should be
interpreted in such a way and there is no need to give any
weightage to headings of those paragraphs. This aspect has been
clarified in Prakash Nath Khanna & Anr. vs. Commissioner of
Income Tax & Anr., (2004) 9 SCC 686. Paragraph 13 of the said
judgment is relevant which reads as under:
“13. It is a well-settled principle in law that the court cannot
read anything into a statutory provision which is plain and
unambiguous. A statute is an edict of the legislature. The
language employed in a statute is the determinative factor of
legislative intent. The first and primary rule of construction is
that the intention of the legislation must be found in the words
used by the legislature itself. The question is not what may be
supposed and has been intended but what has been said.
“Statutes should be construed, not as theorems of Euclid”, Judge
Learned Hand said, “but words must be construed with some
imagination of the purposes which lie behind them”. (See Lenigh
Valley Coal Co. v. Yensavage. The view was reiterated in Union
of India v. Filip Tiago De Gama of Vedem Vasco De Gama and
Padma Sundara Rao v. State of T.N..”
44) It is clear that when the provision is plainly worded and
unambiguous, it has to be interpreted in such a way that the Court
must avoid the danger of a prior determination of the meaning of
a provision based on their own preconceived notions of ideological
structure or scheme into which the provision to be interpreted is
somewhat fitted. While interpreting the provisions, the Court only
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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
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a 'post' in existence to enable the 'vacancy' to occur. The cadrestrength
is always measured by the number of posts comprising
the cadre. Right to be considered for appointment can only be
claimed in respect of a post in a cadre. As a consequence the
percentage of reservation has to be worked out in relation to the
number of posts, which form the cadre-strength. The concept of
'vacancy' has no relevance in operating the percentage of
reservation.”
47) Adhering to the decision laid by the Constitution Bench in
R.K Sabharwal (supra), the High Court held as follows:-
16. The Disabilities Act was enacted for protection of the rights
of the disabled in various spheres like education, training,
employment and to remove any discrimination against them in
the sharing of development benefits vis-à-vis non-disabled
persons. In the light of the legislative aim it is necessary to give
purposive interpretation to section 33 with a view to achieve the
legislative intendment of attaining equalization of opportunities
for persons with disabilities. The fact that the vacancy-based
roster is to be maintained does not mean that 3% reservation
has to be computed only on the basis of vacancy. The difference
between the posts and vacancies has been succinctly pointed
out in the Supreme Court decision in the case of R.K
Sabharwal and Others vs state of Punjab and others AIR
1995 SC 1371 wherein it was held that the word “post” means
an appointment, job, office or employment, a position to which a
person is appointed. “Vacancy” means an unoccupied post or
office. The plain meaning of the two expressions make it clear
that there must be a ‘post’ in existence to enable the vacancy to
occur. The cadre-strength is always measured by the number of
posts comprising the cadre. Right to be considered for
appointment can only be claimed in respect of a post in a cadre.
As a consequence the percentage of reservation has to be
worked out in relation to the number of posts which from the
cadre-strength. The concept of ‘vacancy’ has no relevance in
operating the percentage of reservation. Therefore, in our
opinion, 3 % reservation for disabled has to be computed on the
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basis of total strength of the cadre i.e. both identified as well as
unidentified posts….”
48) However, the decision in R.K Sabharwal (supra) is not
applicable to the reservation for the persons with disabilities
because in the above said case, the point for consideration was
with regard to the implementation of the scheme of reservation
for SC, ST & OBC, which is vertical reservation whereas
reservation in favour of persons with disabilities is horizontal. We
harmonize with the stand taken by the Union of India, the
appellant herein in this regard. Besides, the judgment in R.K
Sabharwal (supra) was pronounced before the date on which
the Act came into force, as a consequence, the intent of the Act
must be given priority over the decision in the above said
judgment. Thus, in unequivocal terms, the reservation policy
stipulated in the Act is vacancy based reservation.
Conclusion:
49) Employment is a key factor in the empowerment and
inclusion of people with disabilities. It is an alarming reality that
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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
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legislature. Accordingly, certain clauses in the OM dated
29.12.2005, which are contrary to the above reasoning are struck
down and we direct the appropriate Government to issue new
Office Memorandum(s) in consistent with the decision rendered by
this Court.
52) Further, the reservation for persons with disabilities has
nothing to do with the ceiling of 50% and hence, Indra Sawhney
(supra) is not applicable with respect to the disabled persons.
53) We also reiterate that the decision in R.K. Sabharwal
(supra) is not applicable to the reservation for the persons with
disabilities because in the above said case, the point for
consideration was with regard to the implementation of the
scheme of reservation for SC, ST & OBC, which is vertical
reservation, whereas reservation in favour of persons with
disabilities is horizontal.
Directions:
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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
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strict implementation of reservation for person with disabilities, be
departmentally proceeded against for the default.
55) Before parting with the case, we would like to place on
record appreciation for Mr. S.K Rungta, learned senior counsel for
rendering commendable assistance to the Court. The appeal is
disposed of with the above terms.
...…………….…………………………CJI
(P. SATHASIVAM)
.…....…………………………………J.
(RANJANA PRAKASH DESAI)
.…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
OCTOBER 08, 2013.
48

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