Delhi High Court: A PIL was filed based upon a letter dated 07-12-2022 of the National Association of Deaf (NAD) through its President Mr. A.S. Narayanan being aggrieved by advertisements issued by Kendriya Vidyalaya Sangathan (KVS) inviting applications for various posts of Principal, Vice Principal, Post-Graduate Teacher (PGT), Trained Graduate Teacher (TGT), Librarian, Primary Teacher (Music), Finance Officer, as well as other posts. A division bench of Satish Chandra Sharma, CJ., and Sanjeev Narula, JJ., held that the KVS in respect of the identified posts as per the notification dated 04-01-2021, shall issue an advertisement and shall clear the backlog of vacancies within six months from the date of receipt of certified copy of the judgment.
KVS has issued an advertisement dated 02-12-2022 for direct recruitment of Officers, Teaching and Non-Teaching Staff in the KVS and for direct recruitment of Primary Teachers in KVS in the newspaper as well as on the official website. The National Association of Deaf in its letter dated 07-12-2022 has stated that the advertisements issued by KVS are violative of statutory provisions as contained under the Rights of Persons with Disabilities Act, 2016 that mandates 4% reservation for Persons with Disabilities (PwD), out of which 1% posts are reserved for deaf and hard of hearing persons. The Association’s grievance is that the respondent/ KVS has not provided 1% reservation for Deaf and Hard of Hearing Persons in respect of posts advertised and therefore, the said advertisements be set aside and the entire selection to the extent vacancies have been filled up, which were meant to be filled up by deaf and Hard of Hearing Persons, should be re-advertised.
As per affidavit submitted by the KVS, it was stated that a Committee was constituted by the KVS in terms of notification dated 29-07-2013, and based upon the recommendations of the Committee, reservation has not been provided to the disabled category (deaf and hard of hearing) in respect of certain posts. The Committee constituted by KVS has provided reservation to persons who have benchmark disabilities as referred under the Office Memorandum dated 15-01-2018 and an exemption has been sought keeping in view the Office Memorandum dated 15-01-2018. Thus, the KVS by constituting its own Committee, has excluded deaf and hard of hearing persons from reservation, and in fact, excluded the blind persons also in respect of the certain posts, including the post of Principal.
The Court noted that the KVS has not provided reservation to the persons having benchmark disability under the Hard of Hearing category, keeping in view the notification dated 29-07-2013. Notably, the notification was no longer in operation at the time when the advertisement was issued. The Ministry of Social Justice & Empowerment, Government of India, in pursuance of Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 had constituted an Expert Committee, and based upon the recommendations of the said Expert Committee, large number of posts were identified as suitable for Persons with Disabilities in Group-A, Group-B and Group-C, vide notification dated 04-01-2021.
The Court further noted that Note 2 of the notification makes it very clear that the list of the posts being notified is not an exhaustive list and the Ministries, Departments, Public Sector Undertakings and Autonomous Bodies may further supplement the list. Therefore, if a particular Department/ Public Sector Undertaking/ Autonomous Body wants to add some other post to the said list, they can certainly do it. However, the posts which have been identified by the Ministry of Social Justice & Empowerment by virtue of Section 32, cannot be deleted as has been done in the present case by the KVS. The KVS has stated on affidavit, that they have constituted some internal Committee, and no reservation has been made for deaf and hard of hearing persons (1%).
The Court concluded that KVS has assumed a power which never vested in it. The task of identification as well as of exemption of posts falls in the domain of the appropriate government. If the process of recruitment is already over, the KVS in respect of the identified posts, shall provide 1% reservation against the total vacancies notified vide the impugned advertisements to deaf and hard of hearing persons, and shall initiate a drive of special recruitment for filling up the vacancies reserved for various categories of disabled persons, including 1% identified persons who are deaf and hard of hearing. The reservation must be calculated on the total number of vacancies and ultimate appointment shall take place on the posts identified in the 2021 notification. The exercise of issuing a fresh advertisement for disabled category of total 4% of posts in the entire organization be concluded within a period of three months from the date of receipt of certified copy of the present order. Thus, despite creating reasonable accommodation, the respondent has looked down upon the PwDs from the lens of inconvenience.
As the posts of Principal and Vice-Principal find place in the notification dated 04-01-2021 issued by the Government of India, the posts of Post Graduate Teacher (PGT), TGT (Trained Graduate Teacher), Assistant Engineer (Civil), Hindi Translator and Stenographer Grade-II also find place in the notification dated 04-01-2021, and therefore, the Court directed KVS to appoint deaf and hard of hearing persons by providing them 1% reservation against the total number of vacancies in the organization and provide 4% reservation to the disabled persons in respect of total vacancies in the organization within a period of six months from the date of receipt of certified copy of this judgment.
The Court finally directed the Secretary, Ministry of Social Justice and Empowerment concerned to issue suitable guidelines for the implementation of reservation policy by all departments in a uniform manner.
[Court on its own motion v Kendriya Vidyalaya Sangathan, 2023 SCC OnLine Del 6993, decided on 01-11-2023]
Advocates who appeared in this case :
Mr. Dayan Krishnan, Senior Advocate (Amicus Curiae) with Mr.Sanjeevi Seshadri, Advocate for petitioner
Mr. S Rajappa and Mr. R Gowrishankar, Advocates for Respondent 1/ KVS.
