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)
National Federation of
the Blind & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, CJI.
...…………….…………………………CJI1) Leave granted.2) This appeal is directed against the final judgment and orderdated 19.12.2008 passed by the High Court of Delhi at New Delhiin Writ Petition (C) No. 15828 of 2006 wherein the High Courtinterpreted Section 33 of the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act,1995 (in short ‘the Act’) and issued various directions to becomplied with by the appellants herein.1Page 23) Brief facts:(a) National Federation of the Blind-Respondent No. 1 herein isan apex organization and a society registered under the SocietiesRegistration Act, 1860, having its Head Office at New Delhi and isworking for the protection of the rights of the visually challenged.(b) In the year 2006, Respondent No. 1 herein filed a writpetition before the High Court in public interest seekingimplementation of Section 33 of the Act alleging that theappellants herein have failed to provide reservation to the blindand low vision persons and they are virtually excluded from theprocess of recruitment to the Government posts as stipulatedunder the said Act.(c) In the above backdrop, it is relevant to mention that wayback in 1977, the erstwhile Ministry of Social Welfare, Governmentof India, made reservation in favour of the following threecategories of disabled persons in Group C & D posts to the extentof 1 per cent each for the (i) Blind; (ii) Hearing and SpeechImpairment; 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 identified2Page 3and unidentified posts for working out the total number ofvacancies to be reserved for each of the disabled categories. Inspite of the above said executive order, various governmentdepartments and public sector undertakings did not give effect tothe scheme of reservation which compelled Respondent No. 1herein to organize a nation wide agitation, as a result of which, anagreement was arrived at between the parties on 27.08.1987 toundertake a Special Recruitment Drive for clearing up the backlogof vacancies.(d) On 07.02.1996, the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act,1995 was brought into force making reservation of at least 3percent posts in all government establishments to the extent of 1per cent each for the persons suffering from (i) blindness or lowvision; (ii) hearing impairment; and (iii) locomotor disability orcerebral palsy. After enactment of the said Act, Union of Indiaissued various orders for ensuring proper implementation of theprovisions of the Act for the persons with disabilities.(e) Respondent No. 1 herein, by filing the above said petitionbefore the High Court asserted that despite statutory provisions3Page 4and various executive orders, discrimination against the personswith disabilities continued in filling up the vacancies in variousgovernment departments whereas it was contended by the otherside that the Office Memorandum (OM) dated 29.12.2005, issuedby the Department of Personnel & Training, inter alia provides asystem for ensuring proper implementation of the provisions ofthe Act for the persons with disabilities.(f) Vide order dated 19.12.2008, the High Court disposed of thepetition directing the Union of India to modify the OM dated29.12.2005 being inconsistent with the provisions of Section 33 ofthe Act and issued several other directions.(g) Being aggrieved of the above, the appellants have preferredthis appeal by way of special leave before this Court.(h) Tamil Nadu Handicapped Federation Charitable Trust, Smt S.Rajeswari and Association for Physically Challenged PeopleOrdnance Clothing Factory filed applications for impleadment.Vide order dated 22.07.2011, this Court did not allow them toimplead but to act as intervenors in the proceedings.4) Heard Ms. Indra Jaisingh, learned Additional Solicitor Generalfor the Union of India, Mr. S.K. Rungta, learned senior counsel (R-4Page 51) appearing in person and Mr. R. Prabhakaran, learned counselfor Intervenors.Submissions:5) Ms. Indra Jaisingh, learned Additional Solicitor General for theUnion of India, after taking us through various provisions of theAct and OM(s) issued by the Government of India submitted thatthe impugned judgment of the High Court is against the provisionsof the Act. She further pointed out that the finding of the HighCourt that in terms of Section 33 of the Act, 3% reservation for thedisabled persons has to be computed on the basis of totalstrength of the cadre, i.e., both identified as well as unidentifiedposts is erroneous. In any event, according to her, the direction ofthe High Court to work out backlog vacancies for the disabledpersons on the total cadre strength in different establishmentswithin one month from the date of the order is impractical and notexecutable. It is further highlighted that according to Section 33of the Act, reservation to the persons with disabilities in anestablishment shall be 3% of the vacancies arising in the postswhich are identified for the persons with disabilities. The HighCourt, by the impugned judgment, disturbed the very basic5Page 6system of the reservation of posts for the persons with disabilities.She further highlighted that the reservation for Group C and Dposts is being calculated on the basis of the vacancies in identifiedas well as unidentified posts prior to the Act came into existenceand in view of the provisions of Section 72 of the Act, continued inthe same way, however, reservation for Group A and B posts isbeing calculated on the basis of the vacancies for identified postsas 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 theprovisions of the Act, more particularly, Sections 32 and 33 of theAct, it is obligatory on the part of the Government establishmentsto provide at least 3% reservation of posts in the total cadrestrength and not in the identified vacancies. He further pointedout that though the Act was passed in 1995 since then theprovisions have not been strictly implemented. He prayed forfurther time bound direction for implementation of the same.7) Mr. R. Prabhakaran, learned counsel for intervenorsreiterated the submissions made by Mr. S.K. Rungta.6Page 78) We have perused all the relevant materials and consideredthe rival submissions.Relevant Provisions:9) In order to answer the rival contentions, it is desirable toquote the relevant provision of the Act. Sections 2(a), 2(i), 2(j) and2(k) of the Act read as under:“2(a) “appropriate Government” means,-(i) in relation to the Central Government or anyestablishment wholly or substantially financed by thatGovernment, or a Cantonment Board constituted underthe Cantonment Act, 1924 (2 of 1924), the CentralGovernment;(ii) in relation to a State Government or any establishmentwholly or substantially financed by that Government orany local authority, other than a Cantonment Board, theState Government;(iii) in respect of the Central Co-ordination Committee and theCentral Executive Committee, the Central Government;(iv) in respect of the State Co-ordination Committee and theState 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;7Page 82(j) "employer" means,-(i) in relation to a Government, the authority notified bythe Head of the Department in this behalf or where nosuch authority is notified, the Head of the Department;and(ii) in relation to an establishment, the Chief ExecutiveOfficer of that establishment;2(k) "establishment" means a corporation established by orunder a Central, Provincial or State Act, or an authority or abody owned or controlled or aided by the Government or a localauthority or a Government company as defined in section 617 ofthe Companies Act, 1956 (1 of 1956) and includes Departmentsof a Government;”10) Among the above definitions, we are more concerned withthe definition of “establishment” under Section 2(k) of the Act,which is an exhaustive definition and covers (i) a corporationestablished by or under a Central, Provincial or State Act, or (ii) anauthority or a body owned or controlled or aided by theGovernment or a local authority, or (iii) a Government company asdefined 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 personswith disabilities. The relevant Sections of the said Chapter are asunder:-“32. Identification of posts which can be reserved forpersons with disabilities. - Appropriate Governments shall-8Page 9(a)identify posts, in the establishments, which can bereserved for the persons with disability;(b)at periodical intervals not exceeding three years, reviewthe list of posts identified and up-date the list taking intoconsideration the developments in technology.33. Reservation of Posts - Every appropriate Governmentshall appoint in every establishment such percentage ofvacancies not less than three per cent for persons or class ofpersons with disability of which one per cent each shall bereserved 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, havingregard to the type of work carried on in any department orestablishment, by notification subject to such conditions, if any,as may be specified in such notification, exempt anyestablishment from the provisions of this section.36. Vacancies not filled up to be carried forward.- Wherein any recruitment year any vacancy under section 33, cannotbe filled up due to non-availability of a suitable person withdisability or, for any other sufficient reason, such vacancy shallbe carried forward in the succeeding recruitment year and if inthe succeeding recruitment year also suitable person withdisability is not available, it may first be filled by interchangeamong the three categories and only when there is no personwith disability available for the post in that year, the employershall fill up the vacancy by appointment of a person, other thana person with disability:Provided that if the nature of vacancies in anestablishment is such that a given category of person cannot beemployed, the vacancies may be interchanged among the threecategories with the prior approval of the appropriateGovernment.”12) In exercise of the powers conferred by sub-sections (1) and(2) of Section 73 of the Act, the Central Government enacted the9Page 10Persons with Disabilities (Equal Opportunities, Protection of Rightsand Full Participation) Rules, 1996.13) After enactment of the above Act, in order to consolidate theexisting instructions in line with the provisions of the Act, on29.12.2005, Government of India, Department of Personnel andTraining, issued certain instructions by way of an OfficeMemorandum (OM), with regard to the reservation for the personswith disabilities (physically handicapped persons) in posts andservices. The said Office Memorandum specifically states that itshall supersede all previous instructions issued on the subject sofar. Respondent No. 1 herein has commended various clauses ofthe OM dated 29.12.2005. The relevant clauses of the same areextracted hereinbelow:“2. QUANTUM OF RESERVATION(i) Three percent of the vacancies, in case of directrecruitment to Group A, B, C and D posts shall be reserved forpersons with disabilities of which one per cent each shall bereserved for persons suffering from (i) blindness or low vision,(ii) hearing impairment and (iii) locomotor disability or cerebralpalsy in the posts identified for each disability;(ii) Three percent of the vacancies in case of promotion toGroup D, and Group C posts in which the element of directrecruitment, if any, does not exceed 75%, shall be reserved forpersons with disabilities of which one per cent each shall be10Page 11reserved for persons suffering from (i) blindness or low vision,(ii) hearing impairment and (iii) locomotor disability or cerebralpalsy in the posts identified for each disability.3. EXEMPTION FROM RESERVATION:If any Department/Ministry considers it necessary to exempt anyestablishment partly or fully from the provisions of reservationfor persons with disabilities of which one percent each shall bereserved for persons suffering from (i) blindness or low vision,(ii) hearing impairment and (iii) locomotor disability or cerebralpalsy in the posts identified for each disability, it may make areference to the Ministry of Social Justice and Employmentgiving full justification for the proposal. The grant of exemptionshall be considered by an Inter-Departmental Committee set upby the Ministry of Social Justice and Empowerment.4. IDENTIFICATION OF JOBS/POSTS:The Ministry of Social Justice and Empowerment have identifiedthe jobs/posts suitable to be held by persons with disabilitiesand the physical requirement for all such jobs/posts vide theirnotification no. 16-25/99.NII dated 31.5.2001. The jobs/postsgiven in Annexure II of the said notification as amended fromtime to time shall be used to give effect to 3 per centreservation to the persons with disabilities. It may, however, benoted that:(a) The nomenclature used for any job/post shall mean andinclude nomenclature used for other comparable jobs/postshaving identical functions.(b) The list of jobs/posts notified by the Ministry of SocialJustice & Empowerment is not exhaustive. The concernedMinistries/Departments shall have the discretion to identifyjobs/posts in addition to the jobs/posts already identified by theMinistry of Social Justice & Empowerment. However, no11Page 12Ministry/Department/Establishment shall exclude any identifiedjob/post from the purview of reservation at its own discretion.(c) If a job/post identified for persons with disabilities isshifted from one group or grade to another group or grade dueto change in the pay-scale or otherwise, the job/post shallremain identified.13. COMPUTATION OF RESERVATION:Reservation for persons with disabilities in case of Group C andGroup D posts shall be computed on the basis of total number ofvacancies occurring in all Group C or Group D posts, as the casemay be, in the establishment, although the recruitment of thepersons with disabilities would only be in the posts identifiedsuitable for them. The number of vacancies to be reserved forthe persons with disabilities in case of direct recruitment toGroup C posts in an establishment shall be computed by takinginto account the total number of vacancies arising in Group Cposts for being filled by direct recruitment in a recruitment yearboth in the identified and non-identified posts under theestablishment. The same procedure shall apply for Group Dposts. Similarly, all vacancies in promotion quota shall be takeninto account while computing reservation in promotion in GroupC and Group D posts. Since reservation is limited to identifiedposts only and number of vacancies reserved is computed onthe basis of total vacancies (in identified posts as well asunidentified posts), it is possible that number of personsappointed by reservation in an identified posts may exceed 3percent.14. Reservation for persons with disabilities in Group A postsshall be computed on the basis of vacancies occurring in directrecruitment quota in all the identified Group A posts in theestablishment. The same method of computation applies forGroup B posts.12Page 1315. EFFECTING RESERVATION - MAINTENANCE OFROSTERS:(a) all establishments shall maintain separate 100 pointreservation roster registers in the format given in Annexure II fordetermining/effecting reservation for the disabled - one each forGroup A posts filled by direct recruitment, Group B posts filledby direct recruitment, Group C posts filled by direct recruitment,Group C posts filled by promotion, Group D posts filled by directrecruitment and Group D posts filled by promotion.(b) Each register shall have cycles of 100 points and each cycleof 100 points shall be divided into three blocks, comprising thefollowing points :1st Block - point No.1 to point No.332nd Block - point No.34 to point No.663rd Block - point No.67 to point No.100(c) Points 1, 34, and 67 of the roster shall be earmarkedreserved for persons with disabilities - one point for each of thethree categories of disabilities. The head of the establishmentshall 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 directrecruitment quota arising in the establishment shall be enteredin the relevant roster register. If the post falling at point No.1 isnot identified for the disabled or the head of the establishmentconsiders it desirable not to fill up by a disabled person or it isnot possible to fill up that post by the disabled for any otherperson, one of the vacancies falling at any of the points from 2to 33 shall be treated as reserved for the disabled and filled assuch. Likewise a vacancy falling at any of the points from 34 to66 or from 67 to 100 shall be filled by the disabled. The purposeof keeping points 1, 34 and 67 as reserved is to fill up the firstavailable suitable vacancy from 1 to 33, first available suitable13Page 14vacancy from 34 to 66 and first available suitable vacancy from67 to 100 persons with disabilities.(e) There is a possibility that none of the vacancies from 1 to 33is suitable for any category of the disabled. In that case twovacancies from 34 to 66 shall be filled as reserved for personswith disabilities. If the vacancies from 34 to 66 are also notsuitable for any category, three vacancies shall be filled asreserved from the third block containing points from 67 to 100.This means that if no vacancy can be reserved in a particularblock, it shall be carried into the next block.(f) After all the 100 points of the roster are covered, a freshcycle of 100 points shall start.(g) If the number of vacancies in a year is such as to cover onlyone block or two, discretion as to which category of the disabledshould be accommodated first shall vest in the head of theestablishment, who shall decide on the basis of the nature of thepost, the level of representation of the specific disabled categoryin the concerned grade/post etc.(h) A separate roster shall be maintained for Group C posts filledby promotion and procedure as explained above shall befollowed for giving reservation to persons with disabilities.Likewise two separate rosters shall be maintained for Group Dposts, one for the posts filled by direct recruitment and anotherfor posts filled by promotion.(i) Reservation in Group A and Group B posts is determined onthe basis of vacancies in the identified posts only. Separaterosters for Group A posts and Group B posts in theestablishment shall be maintained. In the rosters maintained forGroup A and Group B posts, all vacancies of direct recruitmentarising in identified posts shall be entered and reservation shallbe effected the same way as explained above.16. INTER SE EXCHANGE AND CARRY FORWARD OFRESERVATION IN CASE OF DIRECT RECRUITMENT14Page 15(a) Reservation for each of the three categories of persons withdisabilities shall be made separately. But if the nature ofvacancies in an establishment is such that a person of a specificcategory of disability cannot be employed, the vacancies may beinterchanged among the three categories with the approval ofthe Ministry of Social Justice and Empowerment and reservationmay be determined and vacancies filled accordingly.(b) If any vacancy reserved for any category of disability cannotbe filled due to non-availability of a suitable person with thatdisability or, for any other sufficient reason, such vacancy shallnot be filled and shall be carried forward as a 'backlog reservedvacancy' to the subsequent recruitment year.(c) In the subsequent recruitment year the backlog reservedvacancy shall be treated as reserved for the category ofdisability for which it was kept reserved in the initial year ofrecruitment. However, if a suitable person with that disability isnot available, it may be filled by interchange among the threecategories of disabilities. In case no suitable person withdisability is available for filling up the post in the subsequentyear also, the employer may fill up the vacancy by appointmentof a person other than a person with disability. If the vacancy isfilled by a person with disability of the category for which it wasreserved or by a person of other category of disability by interse exchange in the subsequent recruitment year, it will betreated to have been filled by reservation. But if the vacancy isfilled by a person other than a person with disability in thesubsequent recruitment year, reservation shall be carriedforward for a further period upto two recruitment yearswhereafter the reservation shall lapse. In these two subsequentyears, if situation so arises, the procedure for filling up thereserved vacancy shall be the same as followed in the firstsubsequent recruitment year.19. HORIZONTALITY OF RESERVATION FOR PERSONSWITH DISABILITIES:15Page 16Reservation for backward classes of citizens (SCs, STs and OBCs)is called vertical reservation and the reservation for categoriessuch as persons with disabilities and ex- servicemen is calledhorizontal reservation. Horizontal reservation cuts acrossvertical reservation (in what is called interlocking reservation)and person selected against the quota for persons withdisabilities have to be placed in the appropriate category viz.SC/ST/OBC/General candidates depending upon the category towhich they belong in the roster meant for reservation ofSCs/STs/OBCs. To illustrate, if in a given year there are twovacancies reserved for the persons with disabilities and out oftwo persons with disabilities appointed, one belongs to aScheduled Caste and the other to general category then thedisabled SC candidate shall be adjusted against the SC point inthe reservation roster and the general candidate againstunreserved point in the relevant reservation roster. In case noneof the vacancies falls on point reserved for the SCs, the disabledcandidate belonging to SC shall be adjusted in future against thenext available vacancy reserved for SCs.20. Since the persons with disabilities have to be placed in theappropriate category viz. SC/ST/OBC/ General in the rostermeant for reservation of SCs/STs/OBCs, the application form forthe post should require the candidates applying under the quotareserved for persons with disabilities to indicate whether theybelong to SC/ST/OBC or General category.”14) Clauses 21 and 22 of the said OM enable the Government forrelaxation in age limit as well as standard of suitability.15) After the OM dated 29.12.2005, based on therepresentations made by Respondent No. 1 herein, another OM16Page 17dated 26.04.2006 came to be issued. The details and thedirections contained in the said OM are as follows:“Dated the 26th April, 2006OFFICE MEMORANDUMSub: Reservation for the Persons with DisabilitiesThe undersigned is directed to say that the Persons withDisabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995 which came into existence on01.01.1996 provides for reservation for persons with disability inthe 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 alsobeen issued by this Department for providing reservation forsuch persons. In spite of the Act and the instructions of thisDepartment, vacancies were not earmarked reserved or werenot filled by reservation in some establishments.2. The matter has been considered carefully and it has beendecided that reservation for persons with disabilities should beimplemented in right earnest and there should be no deviationfrom the scheme of reservation, particularly after the Act cameinto effect. In order to achieve this objective, all theestablishments should prepare the reservation roster registersas provided in this Department's O.M. No. 36035/3/2004-Estt(Res) dated 29.12.2005 starting from the year 1996 andreservation for persons with disabilities be earmarked as perinstructions contained in that OM. If some or all the vacanciesso earmarked had not been filled by reservation and were filledby able bodied persons either for the reason that points ofreservation had not been earmarked properly at the appropriatetime or persons with disabilities did not become available, suchunutilized reservation may be treated as having been carriedforward to the first recruitment year occurring after issue of thisO.M. and be filled as such. If it is not possible to fill up suchreserved vacancies during the said recruitment year, reservationwould be carried forward for further two years, whereafter itmay be treated as lapsed.3. It has been observed that some recruiting agencies declare intheir advertisements that blind/partially blind candidates neednot apply and that separate examinations would be conductedfor visually handicapped candidates. Attention is invited to para17Page 187 of this Department's O.M. No. 36035/3/2004-Estt (Res) dated29.12.2005 which provides that persons with disabilitiesselected on their own merit will not be adjusted against thereserved share of vacancies. It means that persons withdisabilities who are selected on their own merit have to beadjusted against the unreserved vacancies and reservation hasto be given in addition. If visually handicapped candidates orany other category of handicapped candidates are debarredfrom applying on the ground that a separate examination wouldbe conducted for them, chances of handicapped candidatesbeing selected on their own merit would be eliminated. Thus,debarring of any category of handicapped candidates in theabove manner is against the provisions contained in theaforesaid O.M. It is, therefore, requested that persons withdisabilities should not be debarred from applying for the postsidentified suitable for them and should be provided opportunityto compete for the unreserved vacancies as well by holding acommon examination.4. Contents of this O.M. may be brought to the notice of allconcerned.Sd/-(K.G.Verma)Deputy Secretary to the Govt. of India”16) Another OM dated 10.12.2008, issued by the Department ofPersonnel and Training, was also brought to our noticewhereunder a Special Recruitment Drive to fill up the backlogreserved vacancies for the persons with disabilities was initiated.The said OM mainly speaks about filling up of “backlog reservedvacancies”. Relevant portion of the said OM is extractedhereinbelow:“Dated the 10th December, 2008OFFICE MEMORANDUM18Page 19Sub: Special Recruitment Drive to fill up the backlog reservedvacancies for Persons with DisabilitiesThe undersigned is directed to say that this Department'sO.M. No. 36035/3/2004-Estt(Res) dated 29.12.2005 provides thatif any vacancy reserved for any category of disability cannot befilled due to non-availability of a suitable person with thatdisability or for any other sufficient reason, such vacancy is notfilled and is carried forward as a 'backlog reserved vacancy' tothe subsequent recruitment year. In the subsequent recruitmentyear, the 'backlog reserved vacancy' is treated as reserved forthe category of disability for which it was kept reserved in theinitial year of recruitment and filled as such. However, if asuitable person with that disability is not available in thesubsequent recruitment also, it may be filled by interchangeamong the three categories of disabilities, failing which byappointment of a person other than a person with disability. Itmay, thus, be seen that if a vacancy is earmarked reserved forany category of disability and a suitable person with thatdisability is not available to fill it up in the initial year ofrecruitment, it becomes a 'backlog reserved vacancy' for firstsubsequent recruitment year.2. As per instructions existing prior to issue of O.M. dated29.12.2005, if in any year, suitable physically handicappedcandidates were not available to fill up a reserved vacancy, thevacancy was filled by an other category candidate andreservation was carried forward for a period of upto threerecruitment years. In the event of non-availability of suitablepersons with disabilities, the reserved vacancies were not keptunfilled. Thus there was no provision of backlog reservedvacancies of persons with disabilities prior to 29.12.2005.Nevertheless, it is possible that some Ministries/Departments/establishments might have kept some vacancies earmarkedreserved for the persons with disability unfilled due to nonavailabilityof persons with disability. If there exist suchvacancies, these will be treated as backlog reserved vacanciesfor the current recruitment year”17) By issuing such directions, the Department of Personnel andTraining directed all the Ministries/Departments to launch a19Page 20Special Recruitment Drive and fixed target dates for fulfillingvarious stages.Discussion:18) In the light of the above statutory provisions as well asvarious clauses of the OM dated 29.12.2005, let us analyzewhether the High Court was justified in passing the impugnedjudgment.19) Before adverting to the rival contentions submitted by theappellants and the respondents, it is relevant to comprehend thebackground 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 overalldevelopment of its citizens including those who are differentlyabled in order to enable them to lead a life of dignity, equality,freedom and justice as mandated by the Constitution of India. Theroots of statutory provisions for ensuring equality and equalizationof opportunities to the differently abled citizens in our countrycould be traced in Part III and Part IV of the Constitution. For thepersons with disabilities, the changing world offers more new20Page 21opportunities owing to technological advancement, however, theactual limitation surfaces only when they are not provided withequal opportunities. Therefore, bringing them in the society basedon their capabilities is the need of the hour.21) Although, the Disability Rights Movement in Indiacommenced way back in 1977, of which Respondent No. 1 hereinwas an active participant, it acquired the requisite sanction only atthe launch of the Asian and Pacific Decade of Disabled Persons in1993-2002, which gave a definite boost to the movement. Themain need that emerged from the meet was for a comprehensivelegislation to protect the rights of persons with disabilities. In thislight, the crucial legislation was enacted in 1995 viz., the Personswith Disabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995 which empowers persons with disabilitiesand ensures protection of their rights. The Act, in addition to itsother prospects, also seeks for better employment opportunitiesto persons with disabilities by way of reservation of posts andestablishment of a Special Employment Exchange for them.22) For the same, Section 32 of the Act stipulates foridentification of posts which can be reserved for persons with21Page 22disabilities. Section 33 provides for reservation of posts andSection 36 thereof provides that in case a vacancy is not filled updue to non-availability of a suitable person with disability, in anyrecruitment year such vacancy is to be carried forward in thesucceeding recruitment year. The difference of opinion betweenthe appellants and the respondents arises on the point ofinterpretation of these sections.23) It is the stand of the Union of India that the Act provides foronly 3% reservation in the vacancies in the posts identified for thedisabled persons and not on the total cadre strength of theestablishment whereas Mr. S.K. Rungta, learned senior counsel(R-1) appearing in person submitted that accepting theinterpretation proposed by the Union of India will flout the policyof reservation encompassed under Section 33 of the Act. Hefurther submitted that the High Court has rightly held that thereservation of 3% for differently abled persons in conformity withthe Act should have to be computed on the basis of the totalstrength of a cadre and not just on the basis of the vacanciesavailable in the posts that are identified for differently abledpersons, thereby declaring certain clauses of the OM dated22Page 2329.12.2005 as unacceptable and contrary to the mandate ofSection 33 of the Act.24) Two aspects of the impugned judgment have been challengedbefore this Court:-(a) The manner of computing 3% reservation for the personswith the disabilities as per Section 33 of the Act.(b) Whether post based reservation must be adhered to orvacancy based reservation.25) Now let us consider the reasoning of the High Court and thesubmissions made by the parties.26) Primarily, we would like to clarify that there is a sea ofdifference in computing reservation on the basis of total cadrestrength and on the basis of total vacancies (both inclusive ofidentified and unidentified) in the cadre strength. At the outset, areference to the impugned OM dated 29.12.2005 would, inunequivocal terms, establish that the matter in dispute in thegiven case is whether the latter method of computation ofreservation will uniformly apply to the posts in Group A, B, C and D23Page 24or will it be applicable only to Group C and D. The questionpertaining to computation of reservation on the basis of totalcadre strength does not even arise in the given circumstance ofthe case. However, the High Court, in the impugned judgment,went on to uphold the view that the computation of reservationmust be on the basis of total cadre strength which is clearlyerroneous on the face of it. Inadvertently, the respondents hereinhave also adopted the same line of argument in their oral andwritten submissions. As a result, the point for consideration beforethis Court is whether the modus of computation of reservation onthe basis of total number of vacancies (both inclusive of identifiedand unidentified) in the cadre strength will uniformly apply toGroup 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 vividunderstanding of the reservation policy laid down under Section33 of the Act, it is essential to read together Sections 32 and 33 ofthe Act. It was also submitted that a conjoint reading of the abovereferred sections, mandates only reservation of vacancies in theidentified posts and not in all the posts or against the total24Page 25number of vacancies in the cadre strength. However, it was alsoadmitted that the computation of reservation is being done inrespect of Group C and D posts on the basis of total number ofvacancies (both inclusive of identified and unidentified) in thecadre strength since 1977. In fact, the abovesaid contention hasbeen raised in Govt. of India through Secretary and Anr. vs.Ravi Prakash Gupta & Anr. (2010) 7 SCC 626 and, therefore, itis no longer res integra.28) The question for determination raised in this case is whetherthe reservation provided for the disabled persons under Section33 of the Act is dependent upon the identification of posts asstipulated by Section 32. In the aforementioned case, theGovernment of India sought to contend that since they haveconducted the exercise of identification of posts in civil services interms of Section 32 only in the year 2005, the reservation has tobe computed and applied only with reference to the vacanciesfilled up from 2005 onwards and not from 1996 when the Actcame into force. This Court, after examining the inter-dependence25Page 26of Sections 32 and 33 viz., identification of posts and the schemeof reservation, rejected this contention and held as follows:-“25. …..The submission made on behalf of the Union of Indiaregarding the implementation of the provisions of Section 33 ofthe Disabilities Act, 1995, only after identification of postssuitable for such appointment, under Section 32 thereof, runscounter to the legislative intent with which the Act was enacted.To accept such a submission would amount to accepting asituation where the provisions of Section 33 of the aforesaid Actcould be kept deferred indefinitely by bureaucratic inaction.Such a stand taken by the petitioners before the High Court wasrightly rejected. Accordingly, the submission made on behalf ofthe Union of India that identification of Grade `A' and `B' postsin the I.A.S. was undertaken after the year 2005 is not of muchsubstance.26. As has been pointed out by the High Court, neither Section32 nor Section 33 of the aforesaid Act makes any distinctionwith regard to Groups A, B, C and D posts. They only speak ofidentification and reservation of posts for people withdisabilities, though the proviso to Section 33 does empower theappropriate Government to exempt any establishment from theprovisions of the said Section, having regard to the type of workcarried on in any department or establishment. No suchexemption has been pleaded or brought to our notice on behalfof the petitioners.27. It is only logical that, as provided in Section 32 of theaforesaid Act, posts have to be identified for reservation for thepurposes of Section 33, but such identification was meant to besimultaneously undertaken with the coming into operation of theAct, to give effect to the provisions of Section 33. The legislaturenever intended the provisions of Section 32 of the Act to be usedas a tool to deny the benefits of Section 33 to these categoriesof disabled persons indicated therein. Such a submission strikesat the foundation of the provisions relating to the duty cast uponthe appropriate Government to make appointments in everyestablishment.26Page 2729. While it cannot be denied that unless posts are identified forthe purposes of Section 33 of the aforesaid Act, noappointments from the reserved categories contained thereincan be made, and that to such extent the provisions of Section33 are dependent on Section 32 of the Act, as submitted by thelearned ASG, but the extent of such dependence would be forthe purpose of making appointments and not for the purpose ofmaking reservation. In other words, reservation under Section33 of the Act is not dependent on identification, as urged onbehalf of the Union of India, though a duty has been cast uponthe appropriate Government to make appointments in thenumber of posts reserved for the three categories mentioned inSection 33 of the Act in respect of persons suffering from thedisabilities spelt out therein. In fact, a situation has also beennoticed where on account of non-availability of candidates someof the reserved posts could remain vacant in a given year. Formeeting such eventualities, provision was made to carry forwardsuch vacancies for two years after which they would lapse. Sincein the instant case such a situation did not arise and posts werenot reserved under Section 33 of the Disabilities Act, 1995, thequestion of carrying forward of vacancies or lapse thereof, doesnot arise.31. We, therefore, see no reason to interfere with the judgmentof the High Court impugned in the Special Leave Petition whichis, accordingly, dismissed with costs. All interim orders arevacated. The petitioners are given eight weeks' time from todayto give effect to the directions of the High Court.”29) In the light of the above pronouncement, it is clear that thescope of identification comes into picture only at the time ofappointment of a person in the post identified for disabled personsand is not necessarily relevant at the time of computing 3%reservation under Section 33 of the Act. In succinct, it was held inRavi Prakash Gupta (supra) that Section 32 of the Act is not aprecondition for computation of reservation of 3% under Section27Page 2833 of the Act rather Section 32 is the following effect of Section33.30) Apart from the reasoning of this Court in Ravi PrakashGupta (supra), even a reading of Section 33, at the outset,establishes vividly the intention of the legislature viz., reservationof 3% for differently abled persons should have to be computed onthe basis of total vacancies in the strength of a cadre and not juston the basis of the vacancies available in the identified posts.There is no ambiguity in the language of Section 33 and from theconstruction of the said statutory provision only one meaning ispossible.31) A perusal of Section 33 of the Act reveals that this sectionhas been divided into three parts. The first part is “everyappropriate Government shall appoint in every establishmentsuch percentage of vacancies not less than 3% for persons orclass of persons with disability.” It is evident from this part that itmandates every appropriate Government shall appoint aminimum of 3% vacancies in its establishments for persons withdisabilities. In this light, the contention of the Union of India that28Page 29reservation in terms of Section 33 has to be computed againstidentified posts only is not tenable by any method ofinterpretation of this part of the Section.32) The second part of this section starts as follows: “…of whichone percent each shall be reserved for persons suffering fromblindness or low vision, hearing impairment & locomotor disabilityor cerebral palsy in the posts identified for each disability.” Fromthe above, it is clear that it deals with distribution of 3% posts inevery establishment among 3 categories of disabilities. It startsfrom the word “of which”. The word “of which” has to relate toappointing not less than 3% vacancies in an establishment and, inany way, it does not refer to the identified posts. In fact, thecontention of the Union of India is sought to be justified bybringing the last portion of the second part of the section viz.“….identified posts” in this very first part which deals with thestatutory obligation imposed upon the appropriate Government to“appoint not less than 3% vacancies for the persons or class ofpersons with disabilities.” In our considered view, it is notplausible in the light of established rules of interpretation. The29Page 30minimum level of representation of persons with disabilities hasbeen provided in this very first part and the second part deals withthe distribution of this 3% among the three categories ofdisabilities. Further, in the last portion of the second part thewords 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 begiven to each of the 3 categories of disability viz., blind and lowvision, hearing impaired and locomotor disabled or cerebral palsyseparately and the number of appointments equivalent to the 1%for each disability out of total 3% has to be made against thevacancies in the identified posts. The attempt to read identifiedposts in the first part itself and also to read the same to have anyrelation with the computation of reservation is completelymisconceived.33) The third part of the Section is the proviso which reads thus:“Provided that the appropriate Government may, having regard tothe type of work carried on in any department or establishment,by notification subject to such conditions, if any, as may be30Page 31specified in such notification, exempt any establishment from theprovisions of this section.” The proviso also justifies the above saidinterpretation that the computation of reservation has to beagainst the total number vacancies in the cadre strength and notagainst the identified posts. Had the legislature intended tomandate for computation of reservation against the identifiedposts only, there was no need for inserting the proviso to Sectionwhich empowers the appropriate Government to exempt anyestablishment either partly or fully from the purview of the Sectionsubject to such conditions contained in the notification to beissued in the Official Gazette in this behalf. Certainly, thelegislature did not intend to give such arbitrary power forexemption from reservation for persons with disabilities to beexercised by the appropriate Government when the computationis intended to be made against the identified posts.34) In this regard, another provision of the said Act also supportsthis interpretation. Section 41 of the said Act mandates theappropriate Government to frame incentive schemes foremployers with a view to ensure that 5% of their work force is31Page 32composed of persons with disabilities. The said section isreproduced hereinbelow:“41. Incentives to employers to ensure five per cent ofthe 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 privatesectors to ensure that at least five percent of their work force iscomposed of persons with disabilities.”Thus, on a conjoint reading of Sections 33 and 41, it is clear thatwhile Section 33 provides for a minimum level of representation of3% in the establishments of appropriate Government, thelegislature intended to ensure 5% of representation in the entirework force both in public as well as private sector.35) Moreover, the intention of the legislature while framing theAct can also be inferred from the Draft Rights of Persons withDisabilities Bill, 2012, which is pending in the Parliament forapproval. In Chapter 6 of the Bill, viz., Special Provisions forPersons with Benchmark Disabilities, similar sections like Sections32 & 33 in the Act have been incorporated under Sections 38 and39 which are as under:-“Section 38. Identification of Posts which can be32Page 33Reserved for Persons with Benchmark Disabilities:Appropriate Governments shall – (a) identify posts inestablishments under them which can be reserved for personswith benchmark disability as mentioned in section 39;(b) at periodical intervals not exceeding three years, review andrevise the list of identified posts, taking into considerationdevelopments in technology.Section 39. Reservation of Posts for Persons withBenchmark Disabilities:-(1) Every appropriate Government shall reserve, in everyestablishment under them, not less than 5% of the vacanciesmeant to be filled by direct recruitment, for persons or class ofpersons with benchmark disability, of which 1% each shall be ofall posts reserved for persons with following disabilities:-i) blindness & low vision (with reservation of 0.5% of thevacancies for each of the two disabilities).ii) hearing impairment & speech impairment.iii) locomotor disability including cerebral palsy, leprosy curedand muscular dystrophy.iv) autism, intellectual disability and mental illnessv) multiple disabilities from among i to iv above includingdeaf blindnessProvided that the appropriate Government may, having regardto the type of work carried on in any department orestablishment, by notification subject to such conditions, if any,as may be specified in such notification, exempt anyestablishment from the provisions of this section.(2) If sufficient number of qualified persons with benchmarkdisabilities are not available in a particular year, then thereservation may be carried forward for upto the next threerecruitment years, and if in such succeeding recruitment yearsalso a suitable person with benchmark disability is not available,then the post in the fourth year may be first filled byinterchange among the categories of disabilities; and only whenthere is no person with any benchmark disability available forthe post in that year, the vacancy may be filled by appointment33Page 34of a person, other than a person with benchmark disability.”A perusal of Sections 38 and 39 of the Bill clarifies all theambiguities raised in this appeal. The intention of the legislatureis clearly to reserve in every establishment under the appropriateGovernment, not less than 3% of the vacancies for the persons orclass of persons with disability, of which 1% each shall be reservedfor persons suffering from blindness or low vision, hearingimpairment and locomotor disability or cerebral palsy in the postsidentified for each disability.36) Admittedly, the Act is a social legislation enacted for thebenefit of persons with disabilities and its provisions must beinterpreted in order to fulfill its objective. Besides, it is a settledrule of interpretation that if the language of a statutory provisionis unambiguous, it has to be interpreted according to the plainmeaning of the said statutory provision. In the present case, theplain and unambiguous meaning of Section 33 is that everyappropriate Government has to appoint a minimum of 3%vacancies in an establishment out of which 1% each shall bereserved for persons suffering from blindness and low vision,34Page 35persons suffering from hearing impairment and persons sufferingfrom locomotor or cerebral palsy.37) To illustrate, if there are 100 vacancies of 100 posts in anestablishment, the concerned establishment will have to reserve aminimum of 3% for persons with disabilities out of which at least1% has to be reserved separately for each of the followingdisabilities: persons suffering from blindness or low vision, personssuffering from hearing impairment and the persons suffering fromlocomotor disability or cerebral palsy. Appointment of 1 blindperson against 1 vacancy reserved for him/her will be madeagainst a vacancy in an identified post for instance, the post ofpeon, which is identified for him in group D. Similarly, one hearingimpaired will be appointed against one reserved vacancy for thatcategory in the post of store attendant in group D post. Likewise,one person suffering from locomotor disability or cerebral palsywill be appointed against the post of “Farash” group D postidentified for that category of disability. It was argued on behalf ofUnion of India with reference to the post of driver that since thesaid post is not suitable to be manned by a person suffering from35Page 36blindness, the above interpretation of the Section would beagainst the administrative exigencies. Such an argument is whollymisconceived. A given post may not be identified as suitable forone category of disability, the same could be identified as suitablefor another category or categories of disability entitled to thebenefit of reservation. In fact, the second part of the Section hasclarified this situation by providing that the number of vacanciesequivalent to 1% for each of the aforementioned three categorieswill be filled up by the respective category by using vacancies inidentified posts for each of them for the purposes of appointment.38) It has also been submitted on behalf of the appellants hereinthat since reservation of persons with disabilities in Group C and Dhas been in force prior to the enactment and is being madeagainst the total number of vacancies in the cadre strengthaccording to the OM dated 29.12.2005 but the actual import ofSection 33 is that it has to be computed against identified postsonly. This argument is also completely misconceived in view of theplain language of the said Section, as deliberated above. Even, forthe sake of arguments, if we accept that the computation of36Page 37reservation in respect of Group C and D posts is against the totalvacancies in the cadre strength because of the applicability of thescheme of reservation in Group C and D posts prior to enactment,Section 33 does not distinguish the manner of computation ofreservation between Group A and B posts or Group C and D postsrespectively. As such, one statutory provision cannot beinterpreted and applied differently for the same subject matter.39) Further, if we accept the interpretation contended by theappellants that computation of reservation has to be against theidentified posts only, it would result into uncertainty of theapplication of the scheme of reservation because experience hasshown that identification has never been uniform between theCentre and States and even between the Departments of anyGovernment. For example, while a post of middle school teacherhas been notified as identified as suitable for the blind and lowvision by the Central Government, it has not been identified assuitable for the blind and low vision in some States such asGujarat and J&K etc. This has led to a series of litigations whichhave been pending in various High Courts. In addition, Para 4 of37Page 38the OM dated 29.12.2005 dealing with the issue of identification ofjobs/posts in sub clause (b) states that list of the jobs/postsnotified by the Ministry of Social Justice & Empowerment is notexhaustive which further makes the computation of reservationuncertain and arbitrary in the event of acceptance of thecontention raised by the appellants.40) Another contention raised by the appellants is that thecomputation of reservation against the total vacancies in thecadre strength in Group A & B will violate the rule of 50% ceiling ofreservation in favour of SC, ST and OBC as laid down by this Courtin Indra Sawhney vs. Union of India and others AIR 1993 SC477. This contention is also not tenable and is against theabovesaid judgment. It is difficult to understand as to how thecomputation of reservation against total vacancies in the cadrestrength in Group A and B will violate 50% ceiling when itscomputation on that basis in Group C and D will not violate thesaid ceiling. There is no rationale of distinguishing between themanner of computation of reservation with regard to Group A andB posts on the one hand and manner of computation of38Page 39reservation with regard to Group C and D posts on the other onthis ground.41) A perusal of Indra Sawhney (supra) would reveal that theceiling of 50% reservation applies only to reservation in favour ofother Backward classes under Article 16(4) of the Constitution ofIndia whereas the reservation in favour of persons with disabilitiesis horizontal, which is under Article 16(1) of the Constitution. Infact, this Court in the said pronouncement has used the exampleof 3% reservation in favour of persons with disabilities whiledealing with the rule of 50% ceiling. Para 95 of the judgmentclearly brings out that after selection and appointment ofcandidates under reservation for persons with disabilities they willbe placed in the respective rosters of reserved category or opencategory respectively on the basis of the category to which theybelong and, thus, the reservation for persons with disabilities perse has nothing to do with the ceiling of 50%. Para 95 isreproduced as follows:-“95. ……all reservations are not of the same nature. There aretwo types of reservations, which may, for the sake ofconvenience, be referred to as 'vertical reservations' and39Page 40'horizontal reservations'. The reservations in favour ofScheduled Castes, Scheduled Tribes and other backward classes[under Article 16(4)] may be called vertical reservationswhereas reservations in favour of physically handicapped [underClause (1) of Article 16] can be referred to as horizontalreservations. Horizontal reservations cut across the verticalreservations - what is called inter-locking reservations. To bemore precise, suppose 3% of the vacancies are reserved infavour of physically handicapped persons; this would be areservation relatable to Clause (1) of Article 16. The personsselected against this quota will be placed in the appropriatecategory; if he belongs to S.C. category he will be placed in thatquota by making necessary adjustments; similarly, if he belongsto open competition (O.C.) category, he will be placed in thatcategory by making necessary adjustments. Even afterproviding for these horizontal reservations, the percentage ofreservations in favour of backward class of citizens remains -and should remain - the same……”42) Yet another contention raised by the appellants is that thereservation for persons with disabilities must be vacancy basedreservation whereas Respondent No. 1 herein contended that itmust be post based reservation as laid down by the High Court inthe impugned judgment. Respondent No. 1 herein relied upon theheading of Section 33 of the Act, viz., ‘Reservation of Posts’, topropose the view that the reservation policy contemplated underSection 33 is post based reservation.43) It is settled law that while interpreting any provision of astatute the plain meaning has to be given effect and if languagetherein is simple and unambiguous, there is no need to traverse40Page 41beyond the same. Likewise, if the language of the relevantsection gives a simple meaning and message, it should beinterpreted in such a way and there is no need to give anyweightage to headings of those paragraphs. This aspect has beenclarified in Prakash Nath Khanna & Anr. vs. Commissioner ofIncome Tax & Anr., (2004) 9 SCC 686. Paragraph 13 of the saidjudgment is relevant which reads as under:“13. It is a well-settled principle in law that the court cannotread anything into a statutory provision which is plain andunambiguous. A statute is an edict of the legislature. Thelanguage employed in a statute is the determinative factor oflegislative intent. The first and primary rule of construction isthat the intention of the legislation must be found in the wordsused by the legislature itself. The question is not what may besupposed and has been intended but what has been said.“Statutes should be construed, not as theorems of Euclid”, JudgeLearned Hand said, “but words must be construed with someimagination of the purposes which lie behind them”. (See LenighValley Coal Co. v. Yensavage. The view was reiterated in Unionof India v. Filip Tiago De Gama of Vedem Vasco De Gama andPadma Sundara Rao v. State of T.N..”44) It is clear that when the provision is plainly worded andunambiguous, it has to be interpreted in such a way that the Courtmust avoid the danger of a prior determination of the meaning ofa provision based on their own preconceived notions of ideologicalstructure or scheme into which the provision to be interpreted issomewhat fitted. While interpreting the provisions, the Court only41Page 42interprets the law and cannot legislate it. It is the function of theLegislature to amend, modify or repeal it, if deemed necessary.45) The heading of a Section or marginal note may be reliedupon to clear any doubt or ambiguity in the interpretation of theprovision and to discern the legislative intent. However, when theSection is clear and unambiguous, there is no need to traversebeyond those words, hence, the headings or marginal notescannot control the meaning of the body of the section. Therefore,the contention of Respondent No. 1 herein that the heading ofSection 33 of the Act is “Reservation of posts” will not play acrucial role, when the Section is clear and unambiguous.46) Further, the respondents heavily relied on a decision of theConstitution Bench in R.K Sabharwal and others vs. State ofPunjab and others (1995) 2 SCC 745 to substantiate theircontention. Para 6 reads as under:-“6. The expressions "posts" and "vacancies", often used in theexecutive instructions providing for reservations, are ratherproblematical. 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 plainmeaning of the two expressions make it clear that there must be42Page 43a 'post' in existence to enable the 'vacancy' to occur. The cadrestrengthis always measured by the number of posts comprisingthe cadre. Right to be considered for appointment can only beclaimed in respect of a post in a cadre. As a consequence thepercentage of reservation has to be worked out in relation to thenumber of posts, which form the cadre-strength. The concept of'vacancy' has no relevance in operating the percentage ofreservation.”47) Adhering to the decision laid by the Constitution Bench inR.K Sabharwal (supra), the High Court held as follows:-16. The Disabilities Act was enacted for protection of the rightsof the disabled in various spheres like education, training,employment and to remove any discrimination against them inthe sharing of development benefits vis-à-vis non-disabledpersons. In the light of the legislative aim it is necessary to givepurposive interpretation to section 33 with a view to achieve thelegislative intendment of attaining equalization of opportunitiesfor persons with disabilities. The fact that the vacancy-basedroster is to be maintained does not mean that 3% reservationhas to be computed only on the basis of vacancy. The differencebetween the posts and vacancies has been succinctly pointedout in the Supreme Court decision in the case of R.KSabharwal and Others vs state of Punjab and others AIR1995 SC 1371 wherein it was held that the word “post” meansan appointment, job, office or employment, a position to which aperson is appointed. “Vacancy” means an unoccupied post oroffice. The plain meaning of the two expressions make it clearthat there must be a ‘post’ in existence to enable the vacancy tooccur. The cadre-strength is always measured by the number ofposts comprising the cadre. Right to be considered forappointment can only be claimed in respect of a post in a cadre.As a consequence the percentage of reservation has to beworked out in relation to the number of posts which from thecadre-strength. The concept of ‘vacancy’ has no relevance inoperating the percentage of reservation. Therefore, in ouropinion, 3 % reservation for disabled has to be computed on the43Page 44basis of total strength of the cadre i.e. both identified as well asunidentified posts….”48) However, the decision in R.K Sabharwal (supra) is notapplicable to the reservation for the persons with disabilitiesbecause in the above said case, the point for consideration waswith regard to the implementation of the scheme of reservationfor SC, ST & OBC, which is vertical reservation whereasreservation in favour of persons with disabilities is horizontal. Weharmonize with the stand taken by the Union of India, theappellant herein in this regard. Besides, the judgment in R.KSabharwal (supra) was pronounced before the date on whichthe Act came into force, as a consequence, the intent of the Actmust be given priority over the decision in the above saidjudgment. Thus, in unequivocal terms, the reservation policystipulated in the Act is vacancy based reservation.Conclusion:49) Employment is a key factor in the empowerment andinclusion of people with disabilities. It is an alarming reality that44Page 45the disabled people are out of job not because their disabilitycomes in the way of their functioning rather it is social andpractical barriers that prevent them from joining the workforce. Asa result, many disabled people live in poverty and in deplorableconditions. They are denied the right to make a usefulcontribution to their own lives and to the lives of their families andcommunity.50) The Union of India, the State Governments as well as theUnion Territories have a categorical obligation under theConstitution of India and under various International treatiesrelating to human rights in general and treaties for disabledpersons in particular, to protect the rights of disabled persons.Even though the Act was enacted way back in 1995, the disabledpeople have failed to get required benefit until today.51) Thus, after thoughtful consideration, we are of the view thatthe computation of reservation for persons with disabilities has tobe computed in case of Group A, B, C and D posts in an identicalmanner viz., “computing 3% reservation on total number ofvacancies in the cadre strength” which is the intention of the45Page 46legislature. Accordingly, certain clauses in the OM dated29.12.2005, which are contrary to the above reasoning are struckdown and we direct the appropriate Government to issue newOffice Memorandum(s) in consistent with the decision rendered bythis Court.52) Further, the reservation for persons with disabilities hasnothing 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 withdisabilities because in the above said case, the point forconsideration was with regard to the implementation of thescheme of reservation for SC, ST & OBC, which is verticalreservation, whereas reservation in favour of persons withdisabilities is horizontal.Directions:46Page 4754) In our opinion, in order to ensure proper implementation ofthe 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 anappropriate order modifying the OM dated 29.12.2005 and thesubsequent OMs consistent with this Court’s Order within threemonths from the date of passing of this judgment.(ii) We hereby direct the “appropriate Government” to computethe number of vacancies available in all the “establishments” andfurther identify the posts for disabled persons within a period ofthree months from today and implement the same withoutdefault.(iii) The appellant herein shall issue instructions to all thedepartments/public sector undertakings/Government companiesdeclaring that the non observance of the scheme of reservationfor persons with disabilities should be considered as an act of nonobedienceand Nodal Officer in department/public sectorundertakings/Government companies, responsible for the proper47Page 48strict implementation of reservation for person with disabilities, bedepartmentally proceeded against for the default.55) Before parting with the case, we would like to place onrecord appreciation for Mr. S.K Rungta, learned senior counsel forrendering commendable assistance to the Court. The appeal isdisposed of with the above terms.
(RANJANA PRAKASH DESAI)
OCTOBER 08, 2013.