Delhi High Court: The petitioner, National Federation of the Blind (‘federation’) was aggrieved by non-implementation of statutory reservation for Persons with Disabilities (‘PwDs’), particularly for blind persons, in recruitment process by respondent, Kendriya Vidyalaya Sangathan (‘Sangathan’). The petitioner seeks implementation of statutory and constitutional mandate regarding reservations for persons with visual disabilities. The Division Bench of Satish Chandra Sharma, C.J.*, and Sanjeev Narula, J., held that respondent has failed to implement minimum 4% reservation criteria as per Section 34 of the Rights of Persons with Disabilities Act, 2016 (‘the Act’) in Advertisement No. 14 (‘impugned advertisement’) published by respondent for recruitment and thus, the same was set aside. The Court further held that the impugned advertisement distinguished persons with disabilities from others and had put a restriction on their potential to participate in the recruitment process to their full ability and as per Section 33 of the Act, the primary function of identification of posts was of appropriate government, thus, there was no power with respondent or its committee to revisit and cut short the list notified by the government.
Background
Petitioner had assailed the impugned advertisement published by respondent in 2018 for recruitment at the posts of Principal, Vice Principal, PGTs, TGTs, Librarian, etc. The advertisement indicated the number of vacancies earmarked for different categories, reserved and unreserved. The reserved vacancies were further bifurcated as per the vertical caste-based reservation criteria and horizontal reservation criteria for the persons with disabilities. Within the vacancies reserved for persons with disabilities, they were further bifurcated, indicating the vacancies reserved for different categories of disabilities. The impugned advertisement revealed that vacancies were reserved in a post-wise and subject-wise manner. It was submitted that the Post of Principal had no vacancy for a person with visual disability, whereas the post of Vice-Principal carried a vacancy. Further, within the same cadre, certain subjects had vacancies for one category of disability only and certain subjects had no vacancy at all for any disability, despite falling in the same cadre.
Analysis, Law, and Decision
The Court noted that Section 34 of the Act provided for statutory reservation of not less than 4% of the total number of vacancies in the cadre strength in each group, to be filled by persons with benchmark disabilities. The Court observed that the computation method made it clear that the identified posts come into picture only after recruitment and only at the time of actual appointment. At the stage of recruitment and advertisement of vacancies, the respondent was duty bound to reserve 4% of the total number of vacancies, inclusive of vacancies against identified as well as unidentified posts. Once recruited, appointments could be made against the posts identified as suitable for respective categories of persons with disabilities. Even otherwise, it would be absurd to carry out calculation of 4% against identified posts only. In such a manner, the actual vacancies reserved for persons with disabilities would fall disproportionately short of the total number of vacancies and would never meet the 4% criteria. The Court opined that the same would defeat the mandate of the legislation and therefore, identification under Section 33 was not a precondition for extending the benefit of reservation under Section 34 of the Act.
The Court also noted that as per the impugned advertisement, the category of “Others” indicated the vacancies reserved for persons with benchmark disabilities falling in clauses (d) and (e) of Section 34 for whom at least 1% collective reservation was mandatory and for the post of Principal, Vice-Principal, PGTs, Librarian, Primary Teacher and Primary Teacher (Music), no vacancy whatsoever was reserved for the categories in clauses (d) and (e) of Section 34. Thus, the Court opined that the impugned advertisement was completely violative of the requirement of mandatory reservation of 1% for the said categories of persons. The Court opined that the only way in which respondent could have excused itself from giving effect to the reservation criteria was by availing exemption in accordance with Section 34 of Act read with Rule 11 of the Rights of Persons with Disabilities Rules, 2017 (‘Rules’), but no such exemption was granted to the respondent.
The Court further noted that respondent calculated the reservation in a manner that some subjects had no reserved vacancy for those with benchmark disabilities. The Court observed that going by the criteria of minimum 4%, respondent ought to have reserved at least 23 vacancies for persons with benchmark disabilities across all five categories mentioned in Section 34 of the Act.
The Court opined that the effect of reserving the vacancies subject-wise was to preclude the very idea of reservation against the total number of vacancies inclusive of both identified and unidentified posts and in the impugned advertisement, respondent had indicated reservation only against some subjects in a selective manner. The Court further opined that even if the approach was to exclude the subjects which could not be taught by persons with disabilities, the same was impermissible at the time of reservation of vacancies as the same would amount to calculation of vacancies against identified posts.
The Court observed that the Office Memorandum (‘O.M.’) dated 15-01-2018, in Clause 6, made it clear that the computation must be against the total number of vacancies in the cadre strength. The Court opined that it might happen that at the time of appointment, the persons with disabilities appointed for any subject might exceed 4%, however, the same was permissible in law. Therefore, the Court held that respondent had failed to implement the reservation criteria as per Section 34 of the Act in the impugned advertisement and thus, the same was set aside. The Court opined that respondent had not only failed to calculate the reserved vacancies as per law but had also sought to justify the failure to reserve 4% vacancies by referring to the O.M. However, contrary to the O.M., no exemption from mandatory reservation of 4% had been sought by respondent. Therefore, the Court held that respondent was bound to conduct computation of reservation in accordance with Clause 6 of the O.M.
The Court further held that as per Section 33 of the Act, the primary function of identification of posts was of appropriate government, thus, there was no power with respondent or its committee to revisit and cut short the list notified by the government. Further, the said exercise was to be carried out after constitution of an expert committee with due representation of persons with benchmark disabilities. The Court observed that the appropriate government in the present case was the Central Government and as per the mandate of Section 33, the Central Government completed the exercise of identification in accordance with law.
The Court opined that “the power of identification of posts is bound by a procedure which involves consultation with experts including persons with disabilities. The persons with disabilities are direct stakeholders in this exercise and the legislature has aptly carved out a provision for consultative exercise with such persons. It is manifestation of the principles of natural justice and there can be no deviation from statutory procedure. Exclusion of a post without engaging in a consultative exercise shall be violative of the principles of natural justice”.
The Court held that “the impugned advertisement distinguishes persons with disabilities from others and puts a restriction on their potential to participate in the recruitment process to their full ability. The distinction was purely based on disability. The advertisement has the effect of excluding the persons with disabilities from the race of recruitment, in complete violation of the mandatory reservation provision”. Thus, the Court held that the impugned advertisement was unsustainable and issued following directions:
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The respondent shall conduct an audit of total number of vacancies in the establishment and shall prepare a vacancy-based roster as per Rule 11 of the Rules;
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If any vacancy, which ought to have been reserved in accordance with the Act, had already been filled by any person not falling in the reserved category due to failure of the respondent to reserve the same, the respondent shall adjust those vacancies from the unreserved pool of the available vacancies. Such vacancies shall be deemed to be unfilled and accordingly, shall be considered to have been carried forward from the vacancies notified in the impugned advertisement;
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The respondent shall implement the 4% reservation strictly in accordance with Section 34, with minimum one percent to be earmarked for the categories listed at clauses (a), (b), (c), (d) and (e) in Section 34;
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No deviation from statutory rule or exclusion of any post shall be made, except in accordance with exemption clause and after proper notification by appropriate government.
[National Federation of the Blind v. Kendriya Vidyalaya Sangathan, 2023 SCC OnLine Del 6545, decided on 16-10-2023]
*Judgment authored by: Chief Justice Satish Chandra Sharma
Advocates who appeared in this case :
For the Petitioner: S. K. Rungta, Senior Advocate; Prashant Singh, Advocate
For the Respondent: Monika Arora, CGSC; S. Rajappa, R. Gourishankar, Govind Manoharan, Diksha Tiwari, Apurva Singh, Anchit Singla, Nishchaiy, Yash Tyagi, Subhrodeep Saha, Advocates
