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Civil Appeal No. 9096 of 2013 (Arising out of SLP (Civil) No. 7541 of 2009). Case: Union of India (UOI) and Anr. Vs National Federation of the Blind and Ors.. Supreme Court (India)

Judgment Cited in 12 Precedent Map Related
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Case NumberCivil Appeal No. 9096 of 2013 (Arising out of SLP (Civil) No. 7541 of 2009)
CounselFor Appearing Parties: Indira Jaising, ASG, S.P. Singh, S.K. Rungta (In Person), Sr. Advs., Rajeev Nanda, Kiran Bhardwaj, B.V. Balram Das, B. Krishna Prasad, Anindita Pujari, Sarad Kumar Singhania, R. Prabhakaran, G.S. Mani, Shunu Chauhan and Rameshwar Prasad Goyal, Advs.
JudgesP. Sathasivam, C.J.I., Ranjana Prakash Desai and Ranjan Gogoi, JJ.
IssuePersons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Sections 2, 32, 33, 36, 38, 39, 41, 72, 73, 73(1), 73(2); Societies Registration Act, 1860; Cantonment Act, 1924; Companies Act, 1956 - Section 617; Equal Opportunities, Protection of Rights and Full Participation Rules, 1996; Constitution...
Citation2013 (X) AD (SC) 613, 2013 (139) FLR 811, ILR 2013 (4) Ker 279, 2013 (4) JLJR 310, 2013 (4) PLJR 427, 2013 (12) SCALE 588, 2013 (10) SCC 772, 2013 (4) SCT 807 (SC), 2014 (1) SLJ 88 (SC), 2014 (1) UPLBEC 42
Judgement DateOctober 08, 2013
CourtSupreme Court (India)

Judgment:

P. Sathasivam, C.J.I.

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 3 percent posts in all government establishments to the extent of 1 per cent each for the persons suffering from (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy. After enactment of the said Act, Union of India issued various orders for ensuring proper implementation of the provisions of the Act for the persons with disabilities.

(e) Respondent No. 1 herein, by filing the above said petition before the High Court asserted that despite statutory provisions and various executive orders, discrimination against the persons with disabilities continued in filling up the vacancies in various government departments whereas it was contended by the other side that the Office Memorandum (OM) dated 29.12.2005, issued by the Department of Personnel & Training, inter alia provides a system for ensuring proper implementation of the provisions of the Act for the persons with disabilities.

(f) Vide order dated 19.12.2008, the High Court disposed of the petition directing the Union of India to modify the OM dated 29.12.2005 being inconsistent with the provisions of Section 33 of the Act and issued several other directions.

(g) Being aggrieved of the above, the Appellants have preferred this appeal by way of special leave before this Court.

(h) Tamil Nadu Handicapped Federation Charitable Trust, Smt. S. Rajeswari and Association for Physically Challenged People Ordnance Clothing Factory filed applications for impleadment. Vide order dated 22.07.2011, this Court did not allow them to implead but to act as intervenors in the proceedings.

4. Heard Ms. Indra Jaisingh, learned Additional Solicitor General for the Union of India, Mr. S.K. Rungta, learned Senior Counsel (R-1) appearing in person and Mr. R. Prabhakaran, Learned Counsel for Intervenors.

Submissions:

5. Ms. Indra Jaisingh, learned Additional Solicitor General for the Union of India, after taking us through various provisions of the Act and OM(s) issued by the Government of India submitted that the impugned judgment of the High Court is against the provisions of the Act. She further pointed out that the finding of the High Court that in terms of Section 33 of the Act, 3% reservation for the disabled persons has to be computed on the basis of total strength of the cadre, i.e., both identified as well as unidentified posts is erroneous. In any event, according to her, the direction of the High Court to work out backlog vacancies for the disabled persons on the total cadre strength in different establishments within one month from the date of the order is impractical and not executable. It is further highlighted that according to Section 33 of the Act, reservation to the persons with disabilities in an establishment shall be 3% of the vacancies arising in the posts which are identified for the persons with disabilities. The High Court, by the impugned judgment, disturbed the very basic 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...

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