Supreme Court: Citing Reasonable Accommodation provisions, bench directs a person with defective colour vision to be appointed as Assistant Engineer Electrical

Court: Supreme Court of India

Bench: Hon'ble Mr. Justice S. Ravindra Bhat and Hon'ble Mr. Justice Aravind Kumar

Case No.: Civil Appeal No. 6785 of 2023 [@ Special Leave Petition (Civil) No. 12671 of 2022]

Case Title: Mohamed Ibrahim Vs. The Chairman & Managing Director & Ors.

Date of Judgement: 16 October 2023

Brief:

The Supreme Court granted relief to the appellant - a person with colour blindness - who was denied appointment to the post of Assistant Engineer applying the principle of "reasonable accommodation" as defined in the RPwD Act. Incidently, colour blindness is not an identified or defined disability in the schedule to the Act.

The Court highlighted that the provisions of the RPwD Act are specifically designed to foster the participation and empowerment of Persons with Disabilities (PwDs). However, it expressed its concern that the benefits arising from affirmative action are confined to a specific category of PwDs, including those with orthopedic, visual, hearing, and mental disabilities, among others covered in the schedule to the Act. These benefits are intricately linked to the concept of "benchmark" disabilities, which grants affirmative action and similar benefits to PwDs who meet a defined threshold of disability, typically 40 percent or more. This distinction based on specified categories and threshold conditions, as per the topc court, creates substantial barriers.

It bench observed, “The actual benefits in the form of affirmative action are defined by a specific category of PwDs (orthopaedical, visual, hearing, mental, etc.) and tied to the context of “benchmark” disabilities, which entitles those PwDs who qualify with a certain threshold of disability (40 percent or more) to the affirmative action and other similar benefits. The nature of inclusion of specified categories only to the exclusion of other categories of disabilities, on the one hand, and the eligibility of a threshold, in the opinion of this court, constitute barriers.”

"The twin conditions of falling within defined categories, and also a threshold condition of a minimum percentage, of such disabilities, in fact are a barrier," opined the court. The Court emphasized the necessity of a more rational and inclusive approach to accommodate individuals who may not it into the established categories of PwDs in the schedule to the Act.

“The facts of this case demonstrate that the appellant is fit, in all senses of the term, to discharge the duties attached to the post he applied and was selected for. Yet, he is denied the position, for being “disabled” as he is color blind. At the same time, he does not fit the category of PwD under the lexicon of the universe contained within the Act. These challenge traditional understandings of what constitutes “disabilities”. The court has to, therefore, travel beyond the provisions of the Act and discern a principle that can be rationally applied.”

The bench was hearing an appeal against the Madras HC judgment which had ruled in favour of the respondent(TANGEDCO) asserting its right to reject the appellant's candidature on the grounds of colour blindness. The case revolved around a job application for the position of Assistant Engineer (Electrical) by the appellant. The appellant, who was initially considered qualified for the role, was subsequently found to be color blind during a medical examination. This raised concerns about his ability to fulfill the responsibilities of an engineer, which frequently involve working with color-coded power cables and wires.

As a result of these concerns, TANGEDCO rejected the appellant's candidature. The appellant challenged this decision under Article 226 of the Constitution, and the Madras High Court initially ruled in his favor, directing TANGEDCO to offer him the position. However, in appeal before the division bench, the decision highlighted the evolving doctrine of proportionality, indicating that TANGEDCO's decision had a reasonable basis, even by this modern standard. Consequently, the division bench's judgment reversed the previous order, leading the appellant to seek redress from the Supreme Court. 

The SC bench noted that respondent TANGEDCO had not explicitly indicated that colour vision deficiency, in any form or degree, serves as a disqualifying factor for the role of an Assistant Engineer. It emphasized that the appellant, being a graduate in electrical engineering, possessed knowledge and experience related to the role's functions. Additionally, practical experience during the course exposed the candidate to equipment defects and solutions for breakdowns. Thus, the SC bench established the need for some form of accommodation.

The Court relied on Jeeja Ghosh v. Union of India (2016) 4 SCR 638 to highlight that when public facilities and services are designed with standards inaccessible to persons with disabilities, it results in their exclusion and a denial of rights. The concept of equality goes beyond merely preventing discrimination; it involves addressing systematic discrimination through positive rights, affirmative action, and reasonable accommodation.

The Court also cited the case of Ravinder Kumar Dhariwal v. Union of India  2021 (13) SCR 823, which distinguishes between formal equality and substantive equality. Substantive equality aims to achieve equal outcomes, and the principle of reasonable accommodation plays a critical role in this.

The Court observed that reasonable accommodation entails accommodating disabled individuals based on their capacities. It also relied on Vikash Kumar v. Union Public Service Commission  2021 (12) SCR 311, which held “The principle of reasonable accommodation acknowledges that if disability” should be remedied and opportunities are “to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion. Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individual's dignity and worth is respected.”

The court also cited Ashutosh Kumar v. Film and Television Institute of India (2022),  where the Supreme Court directed the FTII to accommodate students with colour blindness saying, "The respondent institute is a premier institute and one would expect it to encourage liberate thought process and not put courses connected with films in any conformist box".

While  acknowledging the resondent's concerns about colour vision impairment, the Court reminded the TANGEDCO of its obligation to operate within the framework of "reasonable accommodation" as defined by Section 2(y) of the RPwD Act. Resultantly, the court set aside the impugned judgement of the Division bench of Madras High Court saying, “The impugned judgment cannot stand; it is set aside. TANGEDCO, the respondent corporation, is directed to appoint and continue the appellant in its service, as AE (Electrical) at the appropriate stage of the grade of pay,”.

During the hearing, the Court learnt that a member of the bar, Mr. Mehmoud Yumar Faruqi had life experiences of colour blindness -as someone living with a condition of colour blindness and had collected considerable case law and literature. The court had, therefore, requested his assistance for the proceedings. The court expressed its gratitude for his assistance.  

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Supreme Court seeks Centre's resonse to a plea which sougth quanum of assistance to PwDs 25% higher than those given to others as per section 24(1)

A bench headed by CJI Chandrachud issued notice to the Centre seeking its response on the petition filed by Delhi-based organisation 'Bhumika Trust' and posted the matter for hearing after four weeks

The Supreme Court today asked the Centre to respond to a plea which sought that quantum of assistance to persons with disabilities should be 25 per cent higher than those given to others under similar social welfare schemes.

A bench headed by Chief Justice D Y Chandrachud issued notice to the Centre seeking its response on the petition filed by Delhi-based organisation 'Bhumika Trust' and posted the matter for hearing after four weeks.

The bench, also comprising Justices J B Pardiwala and Manoj Misra, requested Additional Solicitor General Aishwarya Bhati to assist the apex court in the matter.

The top court noted the petitioner has relied on the proviso to section 24 (1) of the Rights of Persons with Disabilities Act, 2016.

Section 24 of the 2016 Act deals with social security and section 24 (1) says, "The appropriate government shall within the limit of its economic capacity and development formulate necessary schemes and programmes to safeguard and promote the right of persons with disabilities for adequate standard of living to enable them to live independently or in the community: provided that the quantum of assistance to the persons with disabilities under such schemes and programmes shall be at least 25 per cent higher than the similar schemes applicable to others." Jayant Singh Raghav, president of the organisation, told the bench that proviso to section 24 (1) of the Act provides that quantum to be provided to the persons with disabilities needs to be 25 per cent additional to the others under similar social welfare schemes.

"Which are the schemes in respect of which you are claiming a 25 per cent enhancement," the bench asked.

Raghav referred to the disability pension given by different states.

"Presently, instead of issuing notice to all the states, we will issue notice only to the Union of India and we will then see what the Union Government has to say," the bench said.

Source: Unedited stroy from syndicate feeds

Supreme Court- FTII should make reasonable accommodation in their curriculum for candidates with colour blindness in all courses.

Court: Supreme Court of India 

Bench: Hon'ble Mr. Justice Sanjay Kishan Kaul, Hon'ble Mr. Justice MM Sunresh.

Case No: Civil Appeal No. 7719 of 2021

Case Title: Ashutosh Kumar Vs. The Film and Television  Institute of India & Anr. 

Date of Judgement: 12 April 2022

Brief:

Films and Television Institute of India - Majority view of the Committee appointed by SC accepted - Individuals with color blindness should be permitted to enroll for ALL courses offered by FTII. There should be no bar to admissions to the FTII for colorblind individuals - FTII should make reasonable accommodation in their curriculum for candidates with color blindness, in all courses where there is a bar to the admission of colorblind individuals. (Para 26-35)

A Supreme Court bench directed the Film and Television Institute of India(FTII) to allow color blind candidates to take admission in all its courses. Court further mooted a proposal to make subjects that may not inclusive for such students to be made optional.

In December 2021, Ashutosh Kumar, a 35-year-old man approached the Supreme Court after being barred by the institute because he is color blind. The institute had put forth the logic that he may not be able to pass in certain subjects.

then directed the creation of a panel of experts comprising 

The top court had, instead of taking a call itself on whether colour blindness would be an aspect which would be an impediment in going through the course, it formed a committee of experts consisting of  an ophthalmologist, a film director, a film editor, a script supervisor, a head of the department from FTII, and a lawyer to analyze whether students with color blindness can be allowed to pursue a course in FTII,  to look into the issue and to facilitate a more comprehensive exercise by the Committee to opine on the aspect of colour blindness qua all the courses for which it is perceived as a disqualification. The court framed the two issues on which the opinion of the members was sought as under: 

“i. Whether the course curriculum provided for diploma in Editing can be successfully completed by the appellant who suffers from color blindness? 

Committee’s recommendations: The appellant Mr. Ashutosh Kumar who has Red and Green color vision deficiency and has color perception of CP4, as per the AIIMS Medical Board report, will have difficulty in completing the existing course curriculum of the diploma in Film and Editing course offered by the FTII. This is more particularly due to a twenty-minute ‘color grading module’ which is part of the Film Editing curriculum. However, the color grading module has no relevance to either the film editing course or to the film editor’s professional role (Mr. K. Rajasekaran, HoD Editing, FTII, does not agree that the color grading module is irrelevant to the film editing course). 

ii. To facilitate a more comprehensive exercise, the role of the committee would be to opine on the aspect of color blindness qua all the courses for which it is perceived as a disqualification.”

Committee’s recommendation: It is the opinion of the committee that :

i. It is recommended that individuals with color blindness should be permitted to enroll for ALL courses offered by FTII. There should be no bar to admissions to the FTII for colorblind individuals. Any limitation can be overcome by an assistant in educational and professional life.

ii. FTII should make reasonable accommodation in their curriculum for candidates with color blindness, in all courses where there is a bar to the admission of colorblind individuals. For example, by providing elective/optional modules in the curriculum for those core credits which may require intensive color appreciation or in any other way. 

iii. The color grading module in the existing Diploma in Film Editing Course curriculum, should either be excluded or made elective, thereby lifting the bar of admissions for individuals with color blindness.” 

Court analyzed the report filed by the panel of experts, all of whom except one had recommended that FTII should admit students with color blindness as stressing that “filmmaking is a collaborative art and shortfalls can be addressed by having assistance while making the film.”

In particular, the committee expressed that individuals with colour blindness should be permitted to enroll for all courses offered by the FTII with the following reasoning:-

(a) Film and television creations are collaborative art forms. Restricting entry of colour blind candidates to film courses may sacrifice creative talent and stultify the development of the art. Inclusivity enriches this creative art form by introducing variety, any limitation can be overcome by assistance in the educational and professional life. 

(b) It is not the role of FTII to decide for candidates their future prospects as a film/television professional. If learning limitation of the candidate can be overcome by making reasonable accommodation or with the help of an assistant, the candidate should be eligible for admission to courses offered by FTII. 

(c) Film editing is the art, technique and practice of assembling shots into a coherent sequence and the job of an Editor is not simply to mechanically put piece of a film together, cut off film slates or edit dialogue scenes. The Film Editor must creatively work with the layers of images, story, dialogue, music, pacing as well as the actors performances to effectively “reimagine” and even re-write the film to craft a cohesive whole.

Court while agreeing with their view noted that “We find ourselves with majority view of committee. Same to be adopted by FTII in its curriculum. It does not impede on their freedom but gives them a broader canvas in pioneering effort.”

Court further noted that FTII as a premier institute can put reasonable accommodation like other global institutes from whom the panel of experts sought an opinion.

it was subitted that applicant was not permitted to take up the course despite having completed six months of the course. He submitted that though he is willing to waive the first six months and start afresh again he should not have to go through the admission process again after a medical officer had cleared his eye examination.

Furthermore, counsel for the FTII submitted that it would be a difficult task to modify the entire course as the field is of technical nature and in some courses visually impaired are specifically limited from being able to pursue it.

Court on hearing the submission granted two weeks time for the institute to file its reply on this aspect and adjourned the matter to May 10. Sussequently the FTTI agreed to keep an additiona seat and grant admission to the petitioner in the session starting in March 2023 as prayed.

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Supreme Court while upholding the Kerala HC judgement directed State of Kerala to provide reservation in promotion on all post after identifying said posts within 3 months.

Court: Supreme Court of India

Bench: Sanjay Kishan Kaul, J.

Case No. : Civil Appeal No. 59 of 2021

Case Title: The State of Kerala & Ors Vs.  Leesamma Joseph 

Date of Judgement: 28 June 2021

Brief:

This was an appeal against the order of the Kerala High Court on the issue of reservation in promotion of a disabled women employee who was appointed on compassionate grounds and not on disability quota hence was not extended the reservation in promotion for disabled. The matter was persued before the Administrative Tribunal which dismissed her case.  However, the High Court subsequently overturned the Tribinual's order and allowed her case against which the State went to Supreme Court.  

The Supreme Court praised the Order of the High Court as salutary and expressed that it did not call for any interference. 

Supreme Court said, "In fact, what seems to emerge is that the appellant-State has not implemented the judgment of this Court in Rajeev Kumar Gupta's and Siddaraju's cases(supra). Thus, we consider it appropriate to issue directions to the State of Kerala to implement these judgments and provide for reservation in promotion in all posts after identifying said posts. This exercise should be completed within a period of three months. We are making it time bound so that the mandate of the Act is not again frustrated by making Section 32 as an excuse for not having identified the post.

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Supreme Court: Testimony of a witness with disability not inferior; intersectionality need to be taken in to account while determining the case.

Court : Supreme Court of India

Bench:  Hon'ble Chief Justice Dr Dhananjaya Y Chandrachud & Hon'ble Justice M R Shah

Case No: Criminal Appeal No 452 of 2021

Case Title: Patan Jamal Vali v. State of Andhra Pradesh

Citation: 2021 INSC 272

Date of Judgement: April 27, 2021

Brief:

Testimony of a witness with disability cannot be considered inferior to that of their able-bodied counterparts only on account of the disability. Crimes against Women, Caste-based Violence, lntersectionality, Gender Evidence, Testimony of Person with Disability.

The case was about the rape of a girl with visual impairment belonging to a Scheduled Caste. The SC affirmed the conviction of the appellant for rape of the girl with visual impairment. The court discussed that it is imperative to take into account the inter sectionality while determining the case. The court emphasised that threats against women with disabilities in India are not uncommon and can lead to feelings of powerlessness. However, the court clarified that by this they did not mean to subscribe to the stereotype that persons with disabilities are weak and helpless, rather aim to highlight the increased vulnerability in such cases, and cited reports such as the 2018 report by Human Rights Watch. The court also gave certain guidelines including the need for Awareness-raising campaigns, in accessible formats, to inform women. 

Supreme Court on Reservation of NEET seats - "when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts.

Court: Supreme Court of India

Bench: Hon'ble Justice Arun Mishra, Hon'ble Justice M.R. Shah and Hon'ble Justice B.R. Gavai

Case No: WRIT PETITION (C) NO. 885/2019

Case Title: Vidhi Himmat Katariya and others Vs  The State of Gujarat and others

Date of Judgement: October 04, 2019

Citation: 2019 INSC 1137; SCC Online SC 1318

Brief:

The Petitioners were students appearing for the NEET Exam for admission to MBBS Courses across the country. They sought to be considered persons with disabilities eligible to claim reservation under the PwD Category. The regulations of Graduate Medical Education in MCI were amended in 2019 and whereby Appendix ‘H’ came to be added to the erstwhile Regulations, 2017 – providing for minimum degree of disability to be 40% (Benchmark Disability) in order to be eligible for availing reservation for persons with specified disability. Appendix ‘H’ further provided that in case of ‘physical disability or locomotor disability’, the applicant may be assessed for “Both hands intact, with intact sensation, sufficient strength and range of motion” as essential to be considered eligible for medical course”.

Therefore, the medical board denied admission to Petitioners under persons with disabilities category by stating that they are not eligible for reservation under this category under the amended Regulations.

Petitoners claimed that the relevant provisions of Regulations, 2019 – “Both hands intact, with intact sensation, sufficient strength and range of motion are essential to be considered” has been applied by the State Government to non­suit the petitioners for medical course in an arbitrary manner and without application of mind. 

Petitioners appealed to the Appellate Medical Board, which upheld the previous decision. Therefore, the petitioners approached the Supreme Court under Article 32 for relief. The Court ruled in favour of the state and declined to grant admission to the petitioners by stating as below:

"Now so far as the submission on behalf of the petitioners that while denying admission to the petitioners the State Government and/or authorities have not considered the relevant parameters and have not considered that the respective petitioners are able to perform well is concerned, it is required to be noted that in the present case all the expert bodies including the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi consisting of the experts have opined against the petitioners and their cases are considered in light of the relevant essential eligibility criteria as mentioned in Appendix ‘H’ – ‘Both hands intact, with intact sensation, sufficient strength and range of motion’. Therefore, when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts – in the present case, the Medical Board, Medical Appellate Board and the Medical Board of AIIMS, New Delhi, more particularly when there are no allegations of mala fides."

Judgement:

Supreme Court: MCI Expert Committee's opinion cannot be allowed to override a statutory provision mandating medical institutions to provide 5% reservation to persons with disabilities.

Court: Supreme Court of India

Bench: Hon'ble Justice Arun Mishra and Hon'ble Justice Indira Banerjee

Case No: WRIT PETITION (C) No. 669 OF 2018

Case title: Purswani Ashutosh (Minor) Through Dr. Kamlesh Virumal Purswani Vs Union of India & Ors

Date of Judgement: 28 Aug 2018

Brief:

The Petitioner, who appeared for the NEET UG Examination for the 2018-19 session was denied benefit of reservation for persons with disabilities, despite having low vision impairment and being eligible for 5% reservation for specific benchmark disability under the RPwD Act, 2016 and MCI's Medical Education Regulation 4(3). 

An MCI expert committee determined that individuals with a visual impairment below 40% would not be admitted to the MBBS course.  Aggrieved by this he approached the Court.

The question which arises in this writ petition under Article 32 of the Constitution of India is, whether a person with benchmark disability of low vision, within the meaning of Section 2(r), read with Clause 1B of the Schedule, of the Rights of Persons with Disabilities Act, 2016 can be denied the benefit of reservation for admission to the MBBS Medical Course.

The court said that the argument of MCI that Section 32 is not attracted since it only provides for reservation to higher educational institutions and not to technical institutions imparting technical education, appears to be fallacious since higher educational institution is a generic term which would include institutions imparting all kinds of higher education, including technical education, whereas technical institution is a specific term for those institutions which only impart technical education.

The court, rejecting the opinion of the committee, held that its opinion cannot be allowed to override a statutory provision (Medical Regulations) mandating medical institutions to provide 5% reservation to persons with disabilities. It held that the RPwD Act, 2016 as well as Medical Regulations by MCI was binding on the institution and thus no expert committee's opinion could be given primacy over the same. Thus, it held that the petitioner cannot be denied admission if he qualifies as per his merit in the category of persons with disabilities.

Judgement:

Supreme Court of India wants an Expert Panel To Determine What Areas of Medical Practice Can Colour-blind MBBS Aspirants Study based on international best practices [Judgement Included]

Court: Supreme Court of India

Bench: Hon'ble Chief Justice Dipak Misra, Justice Amitava Roy and Justice AM Khanwilkar 

Case No: Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015)

Case Title: Pranay Kumar Podder Vs. State of Tripura and Others

Date of Judgement: 23 March 2017 and Complianace Order dated  12 Sep 2017

Brief

Dear colleagues,

In a progressive order, the Hon'ble Supreme Court bench comprising Justice Dipak Misra and Justice AM Khanwilkar has directed the Medical Council of India to constitute a committee of experts to look into the areas of practice that MBBS aspirants with colour blindness could indulge in. 

The bench passed these orders while hearing a Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015), filed by two MBBS aspirants, who were declared ineligible for admissions at the stage of counseling in 2015, as they had partial colour blindness. 

The petitioners had challenged the decision of the committee that refused them admission because of their colour-blindness before the High Court of Tripura and  Agartala, contending that there existed no regulation framed by the Medical Council of India, under the Medical Council Act, 1956, debarring them from seeking admission. The high court had, however, refused to interfere, and had dismissed their petition. 

Before the Hon'ble SC, the petitioner's counsel contended that it was “obligatory” on the part of the Medical Council of India to take a “progressive measure so that an individual suffering from CVD may not feel like an alien to the concept of equality, which is the fon juris of our Constitution”. Amicus Curiae Mr. Viswanathan urged that a complete ban on the admission of individuals suffering from CVD to MBBS course would violate conferment of equal opportunities and fair treatment. To buttress this submission, he had made reference to provisions of the Convention on the Rights of Persons with Disabilities and Optional Protocol, to which India is a signatory. 

The Amicus Curiae Mr. Viswanathan had urged that as colour blindness is not considered as a disability under the Persons with Disabilities Act 1995 nor it is a disability under the recently notified Rights of Persons with Disabilities Act 2016, the nature and severity of colour blindness and the disciplines they can practise has to be given a re-look.

The defendants, on the other hand, had submitted that since the complete diagnosis and prognosis of a disease or disorder may depend upon colour detection, there is requirement for restriction in the field of practice of an individual with colour blindness in this country.

Considering rival submissions, the court made reference to a judgment of the Delhi High Court in the case of Dr Kunal Kumar v Union of India and others, and also to a judgment of the Rajasthan High Court in Parmesh Pachar Vs. Convener, Central Undergradutate Admission Board. While the Delhi HC had concurred with the view that people with colour blindness may not be able to pursue certain courses or disciplines, the Rajasthan HC had opined that students suffering from disabilities cannot be debarred from seeking admissions..

The apex court, however, wished neither to lean in favour of the view of Delhi High Court nor generally accept the perception of Rajasthan High Court. It, thus, directed an assessment by an independent expert committee, and observed, “Total exclusion for admission to medical courses without any stipulation in which they really can practice and render assistance would tantamount to regressive thinking. The march of science, apart from our constitutional warrant and  values, commands inclusion and not exclusion. That is the way a believer in human rights should think”.

The bench directed that the expert committee shall also  concentrate on diagnostic test for progress and review of the disorder and what are the available prosthetics aids to  assist CVD medical practitioners and what areas of practice could they undertake without difficulty with these aids. It further said the committee shall include representatives of the Medical Council of India, and experts from genetics, ophthalmology, psychiatry and medical  education, who shall be from outside the members of the Medical Council of India. It has been directed to submit a report to the court within three months. The matter has been listed for July 11.

Writing the order the court expressed, "Human being is a magnificent creation of the Creator and that magnificence should be exposed in a humane, magnanimous and all-inclusive manner so that all tend to feel that they have their deserved space. Total exclusion for admission to medical courses without any stipulation in which they really can practise and render assistance would tantamount to regressive thinking. When we conceive of global phenomenon and universal brotherhood, efforts are to be made to be within the said parameters. The march of science, apart from our constitutional warrant and values, commands inclusion and not exclusion. That is the way a believer in human rights should think.

The bench has directed the Committee of Experts to submit a report to the court within three months, andd fixed the next listing on 11 July 2017 for compliance.

See the judgement dated 23 March 2017 and  compliance Order dated 12 Sep 2017 below:

Judgement dated 23 March 2017:

 

 

Compliance Order dated 12 Sep 2017:

Supreme Court | Andhra Pradesh State Road Transport Corporation & Ors. Vs. B. S. Reddy | 23 Feb 2017 | Section 47 of PWD Act 1995

Court: Supreme Court of India

Bench: ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.

Case No.:   Civil Appeal No.3529 of 2017,Civil Appeal Nos.3428-3458 of 2017,Civil Appeal Nos.3464-3499 of 2017,Civil Appeal Nos.3501-3527 of 2017

Case Title: Andhra Pradesh State Road Transport Corporation & Ors. Vs. B. S. Reddy

Date of Judgement:  23 February, 2017.

Cited as : 2017 ALL SCR 1413

Cases Cited:

• Hawa Singh Vs. Delhi Transport Corporation, W.P. (C) No.7880/2011, Dt.3.2.2012 [Para 4,5]
• Airport Authority of India Vs. Kumar Bharat Prasad Narain Singh, L.P.A. No.1601/2005, Dt.14.12.2005 [Para 4,5]
• G. Muthu Vs. Management of Tamil Nadu State Transport Corporation (Madurai) Limited, (2006) 4 MLJ 1669 [Para 4]

Synopisis:  Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act (1995), Ss.47, 2(i) - Benefit of S.47 of Act - Prayer for - By employees of Andhra Pradesh and Telangana Transport Corporation - Benefit is available to only those persons who are covered under S.2(i) of Act and not to other persons - Schemes of Andhra Pradesh and Telangana Transport Corporation covers even those employees who are not covered by Section 2(i) of the Act - Thus, those who are disabled within meaning of S.2(i) are not without any benefit whatsoever - Employees of Andhra Pradesh and Telangana Transport Corporation are entitled to invoke such schemes but not benefit of Section 47. 2006 (4) MLJ 1669 Dissented from. (Paras, 4, 5, 6)

JUDGMENT

1. Delay condoned.

2. Leave granted.

3. We have heard learned counsel for the parties. The issue raised in this set of cases is whether benefit of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, is available to those covered by Section 2(i) of the said Act alone or applies even to persons not covered thereby.

4. The employees in question suffered disability during employment and they sought benefit of Section 47 of the Act to the effect that their services could not be dispensed with on account of the said disability, nor their rank could be reduced and they could only be shifted to some other post, with same pay-scale and service benefits. The claim was contested by the appellants-Transport Corporations with the plea that the benefit of Section 47 of the Act was available only to those covered by Section 2(i) which defines "disability". The said stand was supported on the basis of judgments of the High Court of Delhi in the cases of Hawa Singh v. Delhi Transport Corporation dated 3.2.2012 in W.P. (C) No.7880 of 2011 & Airport Authority of India v. Kumar Bharat Prasad Narain Singh dated 14.12.2005 in L.P.A. NO.1601 of 2005. The High Court of Delhi dissented from the judgment of the Madras High Court in G. Muthu V. Management of Tamil Nadu State Transport Corporation (Madurai) Limited - (2006) 4 MLJ 1669 which lays down that the definition under Section 2(i) could not control the provision of Section 47 of the Act, as the context of Section 47 of the Act requires a different meaning to be given to the word "disability".

5. We are unable to subscribe to the view taken by the Madras High Court which has been followed in the impugned order and approve the view taken by the High Court of Delhi in Hawa Singh v. Delhi Transport Corporation & Airport Authority of India v. Kumar Bharat Prasad Narain Singh. We do not find any reason to hold that expression "disability" in Section 47 of the Act is used in a different context so as not to go by the definition given in Section 2(i) of the Act. We also note that even though Section 2(i) of the Act may not cover every disabled, scheme of the Andhra Pradesh and Telangana Transport Corporations covers even those employees who are not covered by Section 2(i) of the Act. Thus, those who are disabled within the meaning of Section 2(i) are not without any benefit whatsoever. They are, thus, entitled to invoke such schemes but not Section 47 of the Act.

6. In view of above, we allow these appeals in above terms and hold that the benefit of Section 47 of the Act will be available only to those who are covered by Section 2(i) of the Act. No costs.

7. It will be open for the appellants-Corporations to take decision on individual grievances of the employees and the employees are at liberty to take their remedies in terms of the above judgment.

8. Pending applications, if any, shall also stand disposed of.

Ordered accordingly.

Supreme Court while upholding the Karnataka HC decision directs Karnataka Govt not to deny Primary School Teacher jobs to Visually Impaired Candidatesto

Court: Supreme Court of India

Bench: Hon'ble the Chief Justice T.S. Thakur, Hon'ble Mr. Justice A.M. Khanwilkar, Hon'ble Dr. Justice DY Chandrachud

Case No.: Civil Appeal No. 3910 of 2009 (Against the final order and judgment of the Karnataka High Court in PIL Writ Petition No. 16396 of 2005 dt. 29.09.2007)

Case Title: Selection Authority and Deputy Director  Vs. Akhila Karnataka S.K. Andha Sangha

Date of Judgement: 01 Sep 2016

Supreme Court directs Karnataka Govt. to not keep visually impaired persons out of primary school teacher jobs while dismissing the appeal filed by the Karnataka Govt.

Supreme Court of India upheld the ruling of the Karnataka High Court in PIL Writ petition No. 16396 of 2005, directing the Karnataka State Government to ensure reservation for visually impaired persons in the role of primary school teachers and to execute this through a dedicated recruitment drive. This decision marked the culmination of a legal battle that saw the state government arguing that individuals with blindness or low vision were unsuitable for the role of primary school teachers and should not be entitled to reservation in these positions.

The repercussions of this Supreme Court ruling are significant, as it will necessitate the recruitment of hundreds of blind and low vision individuals to address the shortfall in reserved vacancies that had persisted since 2005.

This legal victory was achieved through the efforts of a non-governmental organization (NGO) representing blind individuals, known as the "Akhila Karnataka Andha S.K. Sangha", with the able representation of Advocate Jayna Kothari. The organization had previously succeeded in petitioning the Karnataka High Court, where the state had argued that primary school teacher positions were ill-suited for visually impaired persons. In an affidavit submitted to the Supreme Court in July 2016, the state contended that students in primary schools could not be effectively taught by teachers with blindness or low vision. They further claimed that many government primary schools, out of a total of 44,000, had only one or two teachers without additional support staff, making it difficult for such schools to function if reservations were granted to visually impaired persons.

However, the Supreme Court ultimately rejected these arguments put forth by the Karnataka State Government. The bench, led by the Chief Justice of India, pointed out that the Persons with Disabilities Act of 1995 mandates that a minimum of 3% of all government job vacancies should be reserved for disabled individuals. Of this quota, at least 1% should be allocated for persons with impaired vision. Moreover, both the Central and Karnataka State Governments had recognized primary school teaching positions as suitable for blind and low vision individuals in accordance with the said Act. The court maintained that placing visually impaired individuals in schools equipped with other teachers and support staff would not disrupt the schools' functioning, particularly given the availability of modern technology-based aids and appliances for blind and low vision individuals. Thus, the Supreme Court held the state government responsible for fulfilling its obligation to employ visually impaired persons in these positions and dismissed their appeal.

Below the Supreme Court's order dated 01.09.2016 dismissing the appeal of the State Govt. of Karnataka:

"We have heard learned counsel for the parties at considerable length who have taken us through the orders impugned in these appeals. We are of the considered view that the impugned orders do not suffer from any error much less any perversity to compel our interference in exercise of our powers under Article 136 of the Constitution of India. These civil appeals accordingly fail and are dismissed."

Access the Karnataka HC Judgement:

Supreme Court of India | Civil Appeal No. 9096 of 2013 (arising out of SLP (Civil) No. 7541 of 2009) | Union of India and Anr Vs. National Federation of the Blind and Others | [Judegement]

Court: Supreme Court of India 

Bench: P. SATHASIVAM, RANJANA PRAKASH DESAI and  RANJAN GOGOI

Case No: Civil Appeal No. 9096 of 2013 (arising out of SLP (Civil) No. 7541 of 2009) 

Case Title: Union of India and Anr Vs. National Federation of the Blind and Others

Date of Judgement : 08 October  2013

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.

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 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 3percent 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 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 (R1) 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 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.

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;

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 (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 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 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 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 postsshall 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.

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 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

(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:

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 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

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

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 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 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 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 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  eservation 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 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 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 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.

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 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 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 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 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 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 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 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, 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 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  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 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 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 '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 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 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 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 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 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  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:

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 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.