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Kenya Law / Blog / Case Summary: Supreme Court of India directs the Centre and State governments to provide three percent job reservation to disabled persons in their departments

Supreme Court of India directs the Centre and State governments to provide three percent job reservation to disabled persons in their departments

Union of India & another v National Federation of the Blind & others

Supreme Court of India,

Civil Appeal No. 9096 of 2013)

October 8, 2013

Judge(s): Hon’ble The Chief Justice P. Sathasivam, Hon’ble Mrs. Justice Ranjana Prakash Desai and Hon’ble Mr. Justice Ranjan Gogoi .

October 8, 2013

Constitution – Service – Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, s. 33 – Persons with disabilities – Directions –

 

In 1977, the 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 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 the first respondent herein to organize a nationwide 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. 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.

The National Federation of the Blind filed a petition seeking implementation of s. 33 of the Act alleging that the appellants had failed to provide reservation to the blind and low vision persons and they were virtually excluded from the process of recruitment to the Government posts as stipulated under the said Act. Respondent No. 1 further submitted that despite statutory provisions 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 provided a system for ensuring proper implementation of the provisions of the Act for the persons with disabilities. The High Court disposed of the petition directing the Union of India to modify the OM for being inconsistent with the provisions of s. 33 of the Act and issued several other directions – Hence, instant appeal.

 

Issue

Whether the 3 per cent reservation provided for the disabled persons under Section 33 of the Act should be calculated on the basis of the cadre strength or the number of vacancies in the identified posts

32. Identification of posts which can be reserved for persons with disabilities. – Appropriate Governments shall

(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.

 

 

Held:

  1. 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. 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.
  2. 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 the section which empowers the appropriate Government Agency/department 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.
  3. The Act is a social legislation enacted for the benefit of persons with disabilities and its provisions must be interpreted in order to fulfill its objective. Besides, it is a settled rule of interpretation that if the language of a statutory provision is unambiguous, it has to be interpreted according to the plain meaning of the said statutory provision. In the present case, the plain and unambiguous meaning of Section 33 is that every appropriate Government has to appoint a minimum of 3% vacancies in an establishment out of which 1% each shall be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor or cerebral palsy.
  4. Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right to make a useful contribution to their own lives and to the lives of their families and community.
  5. 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.
  6. Even though the Act was enacted in 1995, the disabled people have failed to get required benefit until today.  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 through computing 3% reservation on the total number of vacancies in the cadre strength which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29.12.2005, which were contrary to the above reasoning are to be struck down and the appropriate Government should issue new Office Memorandum(s) consistent with the decision rendered by the Court

 

Orders of the court

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) The Court directs the appellant to issue an appropriate order modifying the OM dated 29.12.2005 and the subsequent OMs consistent with the Court’s Order within three months from the date of passing of this judgment.

(ii) The Court directs 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 to 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 non- obedience and Nodal Officer in department/public sector undertakings/Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default.

 

 

 

 

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