the case is apprehended in one circumstance and that too by one high court. can it be applicable to all? take an example that if someone is working in a bank as a clerk, would he be able to avail the benifit of this case?, if he or she is a VI.
On 12/22/07, Harshvardhan Singh Negi <[EMAIL PROTECTED]> wrote: > yes 100 per cent applicable for all handi capped category. > ----- Original Message ----- > From: "dr.u.n.sinha narain" <[EMAIL PROTECTED]> > To: <[email protected]> > Sent: Friday, December 21, 2007 2:42 AM > Subject: Re: [AI] A land mark judgement of reservation of VH in promotion > > > > is this applicable to visually handicapped too? > > drun > > > > On 12/20/07, Harshvardhan Singh Negi <[EMAIL PROTECTED]> wrote: > >> Kindly find the judgement of Delhi highcourt regarding Reservation in > >> promotion of VH > >> > >> IN THE HIGH COURT OF DELHI AT NEW DELHI > >> > >> > >> > >> WP (C) Nos. 11818 and 13627-28/2004 > >> > >> > >> > >> 07.12.2007 > >> > >> > >> > >> Pronounced on : December 07, 2007 > >> > >> > >> > >> # Union of India thru G.M. Northern Railway .....Petitioner in > >> > >> WP(C) No. > >> > >> 11818/2004 > >> > >> Chairman, Railway Board ....Petitioner in WP(C) No. > >> > >> 13627-28/2004 > >> > >> ! through : Mr. > >> > >> V.S.R. Krishna with > >> > >> Mr. B.S. Rajesh Agrajit > >> > >> > >> > >> VERSUS > >> > >> > >> > >> $ Jagmohan Singh .....Respondent in > >> > >> WP(C) No. > >> > >> 11818/2004 > >> > >> Northern Railway Physically Handicapped > >> > >> Employees Welfare Association and Ors. > >> > >> ......Respondent in WP(C) No. > >> > >> 13627-28/2004 > >> > >> ! through : Dr. Harish > >> > >> Uppal for the > >> > >> respondent in WP(C) > >> > >> No.11818/2004 > >> > >> Mr.A.K. Behera for the > >> > >> respondent in WP(C) No. > >> > >> 13627-28/2004 > >> > >> CORAM :- > >> > >> THE HON'BLE MR.JUSTICE A.K.SIKRI > >> > >> THE HON'BLE MR. JUSTICE VIPIN SANGHI > >> > >> > >> > >> 1. Whether Reporters of Local papers may be allowed to see the Judgment? > >> > >> 2. To be referred to the Reporter or not? > >> > >> 3. Whether the judgment should be reported in the Digest? > >> > >> > >> > >> A.K. SIKRI, J. > >> > >> 1.The question that arises for consideration in these cases is as to > >> whether > >> 3% > >> > >> reservation under Section 33 of the Persons with Disabilities (Equal > >> > >> Opportunities, Protection of Rights and Full Participation) Act, 1995 > >> > >> {hereinafter referred to as the 'Disability Act'} in the public > >> employment > >> > >> provided in favour of the physically handicapped persons would be > >> available > >> to > >> > >> them even for promotions as well. The Tribunal has, vide the impugned > >> judgment, > >> > >> decided this question in the affirmative. Not satisfied with this opinion > >> of > >> > >> > >> > >> the Tribunal, in these writ petitions the said judgment was assailed by > >> the > >> > >> Government. It would be advisable to take note of the factual matrix > >> under > >> > >> which the aforesaid question arises for consideration from WP (C) No. > >> 11818/04. > >> > >> > >> > >> 2.The respondent herein is an orthopaedically handicapped person having > >> 55% > >> > >> disability. He was appointed as LDC in the Northern Railways on > >> 16.6.1972. > >> He > >> > >> got promotions from time to time and has risen to the rank of Office > >> > >> Superintendent Grade-I (OS-I). Next promotion is to the post of Chief > >> Office > >> > >> Superintendent (COS). Two posts of COS were created by the petitioner on > >> the > >> > >> recommendations of the Fifth Central Pay Commission vide letter dated > >> 10.5.1998. > >> > >> They are to be filled up as a one time relaxation following the process > >> of > >> > >> modified selection as per the Railway Board's communication dated > >> February > >> 1999. > >> > >> It is not in dispute that the existing instructions with regard to > >> reservations > >> > >> of SC/ST have been observed to be continued in the new grades. > >> > >> > >> > >> 3.Even before the Disability Act came into force in the year 1996, the > >> > >> Government of India, Department of Personnel and Training vide OM dated > >> > >> 28.2.1986 had provided for reservations in jobs for physically > >> handicapped > >> > >> persons in Group C and D posts. The posts on which such reservation was > >> to > >> be > >> > >> applied were identified by the Railway Board on 10.7.1987. As many as 253 > >> jobs > >> > >> in Group C and 17 in Group D were identified where physically handicapped > >> > >> persons could be appointed. The post in question, namely, Chief Office > >> > >> Superintendent is a Group C post. The Government of India, Ministry of > >> > >> Personnel issued a memorandum on 20.11.1989 providing reservation for > >> physically > >> > >> handicapped in the posts filled by promotion. This has to be implemented > >> by > >> all > >> > >> Ministries and Departments. By Disability Act coming into force on > >> 7.2.1996, > >> a > >> > >> mandatory requirement of providing 3% reservation in appointments has > >> been > >> made, > >> > >> which included handicap in vision, hearing and locomotion. However, this > >> is > >> > >> with a rider that having regard to the type of work in any establishment, > >> the > >> > >> appropriate Government by way of a notification exempt any department or > >> > >> establishment from reserving the posts for disabled persons. Memorandum > >> dated > >> > >> 16.1.1998 provides 100 point roster for reserved posts for physically > >> > >> handicapped and point No.1 is reserved for physically handicapped. OM > >> dated > >> > >> 18.2.1997 issued by the Ministry of Personnel provides reservation as per > >> roster > >> > >> to the physically handicapped persons in Group A and B posts and also OM > >> dated > >> > >> 4.7.1997 providing roster points No. 1, 24, 67 in the cycle of 100 > >> vacancies > >> for > >> > >> 100 point roster to be reserved for physically handicapped persons. > >> > >> > >> > >> 4.The respondent herein wanted that for appointment to the post of COS > >> > >> reservation for physically handicapped persons be also made in tune with > >> such > >> > >> reservations having provided for SC/ST candidates. We may, however, note > >> that > >> > >> prior to the enactment of the Disability Act, the Ministry of Railways > >> had > >> taken > >> > >> a decision on 5.12.1995 that for the posts which are to be filled by > >> promotion, > >> > >> reservations for physically handicapped persons would not be given > >> keeping > >> in > >> > >> view the special nature of job and safe carriage of goods and passengers. > >> > >> However, after the Disability Act came into force, the respondent made > >> > >> representations, both individually as well as through his Association > >> i.e. > >> > >> Northern Railway Physically Handicapped Employees Welfare Association, to > >> > >> provide such reservation even when the posts are to be filled by > >> promotion. > >> > >> These representations were not responded to by the Railway Authorities. > >> The > >> > >> respondent, thus, filed OA No. 3108/2002 which was disposed of with the > >> > >> directions to consider the representation of the respondent in the light > >> of > >> OM > >> > >> dated 20.11.1989. The Department considered the representation and turned > >> down > >> > >> the same vide its decision dated 26.4.2002 and 25.3.2003. As the > >> authorities > >> > >> did not accede to the respondent's demand, he filed second OA being OA > >> No. > >> > >> 2633/2003 before the Central Administrative Tribunal, Principal Bench, > >> New > >> > >> > >> > >> Delhi. That is how the question posed at the outset came for > >> consideration > >> > >> before the Tribunal. > >> > >> > >> > >> 5.Perusal of the judgment of the Tribunal would reveal that the case of > >> the > >> > >> respondent before it was that once the Government had taken a decision to > >> > >> introduce reservation for physically handicapped persons in Group C and D > >> posts, > >> > >> and the post of COS was a Group C post, reservation had to be provided in > >> this > >> > >> post as well and it could not be exempted on the purported ground that > >> such > >> a > >> > >> reservation was not possible because of the safe carriage of goods and > >> > >> passengers. It was stressed that job of COS is an office job and the > >> > >> disability, insofar as the physically handicapped is concerned, is in no > >> manner > >> > >> going to put hindrance in the discharge of duties. The petitioner had > >> given > >> the > >> > >> following justification for not adopting the instructions of DoPT dated > >> > >> 20.11.1989 :- > >> > >> > >> > >> (i) Every post at the lowest grade of entry has an avenue of promotion. > >> > >> Some of the promotions, e.g. Khallasi to Khallasi Helper, Junior Clerk to > >> Senior > >> > >> Clerk, Junior Chargeman to Senior Chargeman etc. are more or less based > >> on > >> > >> proportionate distribution between the two grades, the higher grade being > >> the > >> > >> compensation for more experience gained in basically the same nature of > >> duties. > >> > >> However, in more senior grades the nature of duties become markedly > >> different, > >> > >> involving far greater mobility and far wider range of knowledge and > >> > >> responsibilities. This fact has been recognized by placing a selection > >> between > >> > >> the lowest grades and the next higher grade. The selection procedures are > >> > >> necessarily stringent so as to ensure that only the really capable in all > >> > >> respects are put out to shoulder the much higher responsibilities > >> devolving > >> in > >> > >> the higher grade. > >> > >> > >> > >> (ii) Difficulty in implementing reservation for physically handicapped in > >> > >> higher grades filled by promotion involving supervisory duties requiring > >> fair > >> > >> amount of mobility and visual acuity. > >> > >> > >> > >> (iii) In some cases promotions may involve transfer from the existing > >> > >> place of duty of the physically handicapped posting problem attendant on > >> > >> dislocation of the physically handicapped. > >> > >> > >> > >> (iv) It has not been possible to fill the 3% quota prescribed for > >> > >> recruitment of physically handicapped persons in identified posts from > >> the > >> open > >> > >> market. In fact there is a considerable backlog, the main reasons being > >> > >> availability of limited number of posts/ categories identified for > >> appointment > >> > >> of physically handicapped as against computation of vacancies for this > >> purpose > >> > >> on the number of direct recruitment in both identified as well as > >> non-identified > >> > >> categories. In this background with adequate number of physically > >> handicapped > >> > >> persons no being there in the feeder grade we will be faced with a > >> situation > >> of > >> > >> perennial backlog and carry forward. > >> > >> > >> > >> (v) Reservation in posts filled by promotion for physically handicapped > >> > >> employee has also not been found necessary in view of the > >> non-discriminatory > >> > >> provisions in place in the Railways in the matter of their promotion > >> along > >> with > >> > >> others subject to their passing selection/suitability/trade test, as > >> enjoined in > >> > >> Section 47(2) of the Disability Act. > >> > >> > >> > >> (vi) Reservation as prescribed for physically handicapped is already > >> being > >> > >> followed at the initial stage of recruitment from the open market in > >> posts > >> > >> identified for being manned by appropriate category of handicapped as > >> enjoined > >> > >> in Section 33 of the Disability Act. > >> > >> > >> > >> (vii) The Railways, being an operational transport organization, > >> basically > >> > >> responsible for the safe carriage of goods and passengers, reservation in > >> > >> promotion for promotion for physically handicapped has not been found to > >> be > >> > >> necessary. > >> > >> > >> > >> 6.The Tribunal, in this detailed judgment, did not find favour with any > >> of > >> the > >> > >> arguments of the petitioner herein. It opined that having regard to the > >> > >> objectives in providing such reservations, the benefit thereof had to be > >> given > >> > >> to the respondent, more so when the post in question to which promotion > >> is > >> to be > >> > >> made is a Group C post and OM dated 20.11.1989 specifically provides for > >> > >> reservation in Group C posts. The Tribunal, thus, found that the alleged > >> policy > >> > >> decision was totally arbitrary and without any rational or reasonable > >> grounds. > >> > >> It went on to observe that it was a glaring example of arbitrariness and > >> > >> unreasonable classification, inasmuch as, for the same post of COS, in > >> the > >> > >> normal channel, the respondent could be considered and promoted and > >> physical > >> > >> disability was not an impediment while, ironically, it becomes impediment > >> when > >> > >> benefit of reservation is to be given. > >> > >> > >> > >> 7.Before us similar arguments were advanced by the petitioner on the > >> basis > >> of > >> > >> which the respondent's application was contested. It was stated in the > >> first > >> > >> instance that Section 33 of the Disability Act does not provide for a > >> > >> reservation in the promotional post. Submission was that the expression > >> > >> ?vacancies? occurring in Section 33 would relate to the vacancies only at > >> > >> induction level and not while making promotions. It was again stressed > >> that > >> > >> though promotion was not to be denied to a person merely on the ground of > >> his > >> > >> disability, at the same time, it was even the province of the appropriate > >> > >> Government to give regard to the type of work carried on in any > >> establishment > >> > >> and on that basis decide as to whether for a particular job any such > >> reservation > >> > >> is to be given to the persons suffering from disability, as provided in > >> Section > >> > >> 47 of the Disability Act. Learned counsel submitted that giving due > >> regard > >> to > >> > >> the said provision the Ministry of Railways included the necessary > >> provision > >> > >> under Para 189-A and Para 231-A of the Indian Railway Establishment > >> Manual > >> Vol. > >> > >> I (Revised Edition 1989). Para 189-A reads as under :- > >> > >> ?189A : Promotion of persons with disability > >> > >> > >> > >> There shall be no discrimination in the matter of promotion merely on the > >> > >> ground of physical disability. This will apply to categories of staff who > >> have > >> > >> been recruited from the open market against the vacancies reserved for > >> > >> recruitment of physically handicapped and the staff who acquire > >> disability > >> > >> during service and are absorbed in suitable alternative employment as per > >> > >> provision contained in Ch. XIII. Such staff will be considered for > >> promotion > >> in > >> > >> their turn based on their eligibility and suitability along with others > >> in > >> the > >> > >> selection/ suitability/trade test for promotion to higher Grade post. > >> > >> > >> > >> Para 231-A is identically worded > >> > >> > >> > >> 8.He also submitted that Section 47 only mandated that there would not be > >> any > >> > >> discrimination in the matter of promotion and from this it would not > >> follow > >> that > >> > >> such a person is to be given ?preferential treatment?. Learned counsel > >> also > >> > >> stated that a conscious policy decision was taken by the Railways keeping > >> in > >> > >> view the duties of COS and it was decided that no such reservation could > >> be > >> > >> given in the said post keeping in view the safety of the goods and > >> passengers. > >> > >> His submission was that even the DoPT was apprised of the aforesaid > >> decision > >> and > >> > >> the logic behind the same and, therefore, it can be presumed that DoPT > >> had > >> no > >> > >> objection to, or any dissensions on the Raiways decision to depart from > >> its > >> > >> policies. > >> > >> > >> > >> 9.Learned counsel for the respondent, on the other hand, supported the > >> reasoning > >> > >> adopted by the Tribunal in the impugned judgment. He also referred to the > >> > >> provisions of the Disability Act and emphasized that liberal > >> interpretation > >> was > >> > >> to be given to the language of Sections 33 and 47 of the Disability Act > >> in > >> order > >> > >> to ensure that it subserves the purpose for which these provisions were > >> > >> introduced in the said enactment. > >> > >> > >> > >> 10.We have given our utmost consideration to the submissions of counsel > >> on > >> both > >> > >> sides. > >> > >> > >> > >> 11.In order to reach the root of the issue, it would be necessary to > >> understand > >> > >> the rational and reason for making provision for reservation in > >> employment > >> for > >> > >> differently able persons under the Disability Act. > >> > >> > >> > >> 12.Our constitutional governance, as envisaged, respects basic human > >> rights > >> and > >> > >> promotes human development in all situations wherein the dignity and the > >> worth > >> > >> of an individual lies at the core of a democratic value. The noble > >> objectives > >> > >> and rights enshrined in our Constitutional are to be materialized in > >> regard > >> to > >> > >> the entire Indian Society which also includes Communities that had > >> remained > >> > >> disadvantaged and under developed due to various reasons and includes > >> people > >> > >> with disabilities. It is the aim of any civilized society to secure > >> dignity > >> to > >> > >> every individual. There cannot be dignity without equality of status and > >> > >> opportunity. The absence of equal opportunities in any walk of social > >> life > >> is a > >> > >> denial of equal status and equal participation in the affairs of the > >> society, > >> > >> and therefore, of its equal membership. The dignity of the individual is > >> dented > >> > >> and direct proportion to his deprivation of the equal access to social > >> means. > >> > >> The democratic foundations are missing when equal opportunity to grow, > >> govern > >> > >> and give one?s best to the society is denied to a sizable section of the > >> > >> society. The deprivation of the opportunities may be direct or indirect > >> as > >> when > >> > >> the wherewithals to avail of them are denied. Nevertheless, the > >> consequences > >> are > >> > >> as potent (See: Indira Sawhney v. Union of India AIR 1993 SC 477). > >> > >> > >> > >> 13.Let us understand the rights of disabled with aforesaid constitutional > >> > >> mandate in mind. Disability is a result both of the biological condition > >> of > >> the > >> > >> individual and of the social status that attaches to that biological > >> condition. > >> > >> Till recently, persons with disabilities were depicted not as subjects of > >> legal > >> > >> rights but as objects of welfare, health and charity programs. The > >> underlying > >> > >> policy had been to segregate and exclude people with disabilities from > >> > >> mainstream society, sometimes providing them with special schools, > >> sheltered > >> > >> workshops, special housing and transportation. This policy was perceived > >> as > >> just > >> > >> because disabled persons were believed incapable of coping with both > >> society > >> at > >> > >> large and all or most major life activities. A Division Bench of this > >> Court > >> in > >> > >> Social Jurist, A Lawyers Group v. UOI and Ors. 2002 VI AD (DELHI) 217 was > >> forced > >> > >> to pass the following comments: > >> > >> ?It is the common experience of several persons with disabilities that > >> they > >> are > >> > >> unable to lead a full life due to societal barriers and discrimination > >> faced > >> by > >> > >> them in employment, access to public spaces, transportation etc. Persons > >> with > >> > >> disability are most neglected lot not only in the society but also in the > >> > >> family. More often they are an object of pity. There are hardly any > >> meaningful > >> > >> attempts to assimilate them in the mainstream of the Nation's life. The > >> apathy > >> > >> towards their problems is so pervasive that even the number of disabled > >> persons > >> > >> existing in the country is not well documented. > >> > >> > >> > >> T.R.Dye, Policy Analyst, in his book `Understanding Public Policy' says: > >> > >> > >> > >> ``Conditions in society which are not defined as a problem and for which > >> > >> alternatives are never proposed, never become policy issues. Government > >> does > >> > >> nothing and conditions remain the same.'` > >> > >> > >> > >> This statement amply applies in the case of the disabled. At least this > >> was > >> the > >> > >> position till few years ago. The condition of the disabled in the society > >> was > >> > >> not defined as a problem, and therefore, it did not become public issue. > >> It > >> is > >> > >> not that this problem was not addressed. Various NGOs, Authors, Human > >> Rights > >> > >> Groups have been focusing on this problem from time to time and for quite > >> > >> sometime. But it was not defined as a problem which could become public > >> issue. > >> > >> Until the realisation dawned on the Government and the policy makers that > >> the > >> > >> right of the disabled was also a human right issue. > >> > >> > >> > >> xxx xxx xxx > >> > >> > >> > >> Various kinds of rights are recognised in this legislation which is on > >> the > >> > >> Statute book for last about 6 years now but the question is as to whether > >> the > >> > >> Act is implemented in its true spirit and the rights conferred upon > >> disabled > >> > >> under this Act have been translated into reality?? Whether the disabled > >> are > >> able > >> > >> to reap the fruits of this legislation?? The present case is a pointer to > >> the > >> > >> fact that all is still not well. > >> > >> > >> > >> Unless the mindset of the public changes; unless the attitude of the > >> persons > >> and > >> > >> officials who are given the duty of implementation of? this? Act? > >> changes, > >> > >> whatever? rights are granted to the disabled under? the Act, would remain > >> on > >> > >> paper.? > >> > >> 14. The subject of the rights of people with disabilities should be > >> approached > >> > >> from human rights perspective, which recognizes that persons with > >> disabilities > >> > >> are entitled to enjoy the full range of guaranteed rights and freedoms > >> without > >> > >> discrimination on the ground of disability. There should be a full > >> recognition > >> > >> of the fact that persons with disability are the integral part of the > >> community, > >> > >> equal in dignity and entitled to enjoy the same human rights and freedoms > >> as > >> > >> others. > >> > >> > >> > >> 15.With this objective in mind the Disability Act was enacted. The > >> Disability > >> > >> Act enacts a disability-equality law and does not limit itself to > >> prohibiting > >> > >> discrimination, but addresses a wide range of issues relating to persons > >> with > >> > >> disabilities. It is the legislative attempt to open up employment, > >> education, > >> > >> housing, and goods and services for persons regardless of their > >> disabilities > >> in > >> > >> order to change the understanding of disability from a medical to a > >> social > >> > >> category. > >> > >> > >> > >> 16.Therefore, providing employment to persons with disability is > >> absolutely > >> > >> essential. As, with unemployment, comes isolation and fewer opportunities > >> to > >> > >> participate in the life of a community or in recreational and social > >> activities. > >> > >> Thus, a human rights approach offers both the platform for such societal > >> > >> transformation and a way for disabled people to transform their sense of > >> who > >> > >> they are ? from stigmatised objects of care to valued subjects of their > >> own > >> > >> lives. For people who are poor and oppressed this is a key starting point > >> of > >> any > >> > >> meaningful process of social and economic development. According to > >> Gerard > >> Quinn > >> > >> and Theresia Degener (Human rights and disability: The current use and > >> future > >> > >> potential of United Nations human rights instruments in the context of > >> > >> disability. Geneva, Office of the High Commission for Human Rights. > >> (2002) > >> > >> Available at, http://193.194.138.190/disability/study.htm, p.1.):- > >> > >> ?[T]he human rights perspective means viewing people with disabilities as > >> > >> subjects and not as objects. It entails moving away from viewing people > >> with > >> > >> disabilities as problems toward viewing them as rights holders. > >> Importantly, > >> it > >> > >> > >> > >> means locating any problems outside the person and especially in the > >> manner > >> by > >> > >> which various economic and social processes accommodate the difference of > >> > >> disability or not as the case may be. The debate about disability rights > >> is > >> > >> therefore connected to a larger debate about the place of difference in > >> > >> society.? > >> > >> > >> > >> 17.Introduction of provisions like Section 33 and Section 47 of the > >> Disability > >> > >> Act is to be seen with this objective in mind. > >> > >> 18.The conjoint reading of Sections 33 and 47 of the Disability Act > >> giving > >> the > >> > >> interpretation which these provisions deserve, we are of the opinion that > >> the > >> > >> persons with disability would be entitled to reservation even in > >> promotion > >> if > >> > >> the promotion is to Group C and D post. For the sake of convenience, we > >> > >> reproduce Sections 33 and 47(2) of the Disability Act, which are to the > >> > >> following effect :- > >> > >> ?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. > >> > >> > >> > >> xx xx xx > >> > >> > >> > >> 47. Non-discrimination in Government employment. - > >> > >> > >> > >> (1) xx xx xx > >> > >> > >> > >> (2) No promotion shall be denied to a person merely on the ground of his > >> > >> disability: > >> > >> > >> > >> Provided that the appropriate Government may, having regard to the type > >> of > >> work > >> > >> carried on in any establishment, by notification and subject to such > >> conditions, > >> > >> if any, as may be specified in such notification, exempt any > >> establishment > >> from > >> > >> the provisions of this section.? > >> > >> > >> > >> 19.We may also reproduce here the relevant OM dated 20.11.1989 of the > >> DoPT, > >> > >> which reads as under :- > >> > >> ?12. Reservation for the physically handicapped in Groups 'C' and 'D' > >> > >> posts filled by promotion. - It has been decided that when promotions are > >> being > >> > >> made (i) within Group 'D', (ii) from Group 'D' to Group 'C' and (iii) > >> within > >> > >> Group 'C', reservation will be provided for the three categories of the > >> > >> physically handicapped persons, namely, the visually handicapped, the > >> hearing > >> > >> handicapped and the orthopaedically handicapped. > >> > >> > >> > >> The applicability of the reservation will, however, be limited to the > >> > >> promotions being made to those posts that are identified as being capable > >> of > >> > >> being filled/held by the appropriate category of physically handicapped. > >> > >> > >> > >> 2. Each of the three categories of the physically handicapped persons > >> will > >> > >> be allowed reservation at one per cent each. Though the reservations will > >> be > >> > >> effective only in those posts that are identified as being capable of > >> being > >> held > >> > >> by the appropriate category of the physically handicapped persons, the > >> number of > >> > >> vacancies that will be reserved for the physically handicapped persons > >> when > >> > >> promotions are being made to such identified posts will be computed by > >> taking > >> > >> into account the total number of vacancies that arise for being filled by > >> > >> promotion in a recruitment year both in the non-identified as well as > >> identified > >> > >> posts. If the appropriate category of the physically handicapped persons > >> are > >> > >> not available in the feeder grade from which promotion is being made to > >> the > >> next > >> > >> higher grade of the identified posts, then an inter se exchange will be > >> > >> permitted subject to the conditions that - > >> > >> > >> > >> (i) the post to which promotion is to be made is one that can be held by > >> > >> the category of the physically handicapped persons available in the > >> feeder > >> > >> grade; and > >> > >> > >> > >> (ii) the reservation so exchanged is carried forward to the next three > >> > >> recruitment years after which the reservation shall lapse.? > >> > >> As per the aforesaid OM, reservation for physically handicapped in Group > >> > >> C and D posts, even when filled by promotion, is prescribed. > >> > >> > >> > >> 20.As noticed above, prior to the Disability Act coming into force, the > >> > >> Government had, by administrative instructions, provided reservation for > >> > >> physically handicapped persons in Group C and D posts. After the > >> Disability > >> Act > >> > >> came into force, such a reservation is now permissible even for Group A > >> and > >> B > >> > >> posts. This led the DoPT to issue OM dated 18.12.1997. Referring to > >> Section > >> 33 > >> > >> of the Disability Act, this OM mentions that the reservation stands > >> extended > >> to > >> > >> identified Group A and B posts filled through direct recruitment. In this > >> OM, > >> > >> however, it is stated that such reservation would be termed as horizontal > >> > >> reservation in contradistinction to the reservation of SC/ST candidates > >> where > >> > >> reservation is available at horizontal as well as vertical level with the > >> > >> principle of interlocking of vertical and horizontal reservations, as > >> laid > >> down > >> > >> by the Supreme Court in the case of Indira Sawhney v. Union of India and > >> Ors., > >> > >> AIR 1993 SC 477. Though as per this OM for Group A and B posts the > >> reservation > >> > >> was only at induction level, significantly corrigendum was issued by the > >> DoPT > >> > >> vide OM dated 4.7.1997, which reads as under :- > >> > >> > >> > >> ?Subject: Reservation for the physically handicapped persons in Group A > >> and > >> B > >> > >> Posts/Services under the Central Government. > >> > >> > >> > >> The undersigned is directed to invite attention to this department's O.M. > >> No. > >> > >> 36035/169/91-Estt.(SCT) dated 18.2.97 on the above subject and to say > >> that > >> it > >> > >> has been represented before the Government that the earmarking of points > >> no. > >> 33, > >> > >> 67 and 100 in the prescribed register for reservation for the physically > >> > >> handicapped would mean that the physically handicapped candidates may > >> have > >> to > >> > >> wait for a long time to get their turn for promotion. The suggestion has > >> been > >> > >> considered and it has now been decided in partial modification of the > >> O.M. > >> cited > >> > >> above that the point number of 34 and 67 in cycle of 100 vacancies in the > >> 100 > >> > >> point register and be marked for reservation for physically handicapped. > >> The > >> > >> other instructions contained in the aforesaid O.M. remains unchanged. > >> > >> > >> > >> Sd/- > >> > >> (Y.G. Parande) > >> > >> Director? > >> > >> > >> > >> 21.It is clear from the above that point No.34 and 67 in the cycle of 100 > >> are > >> > >> now earmarked for reservation for physically handicapped and, thus, > >> reservation > >> > >> is admissible even for Group A and B posts in promotion category and not > >> only at > >> > >> the induction level. We are of the opinion that this OM is brought in > >> tune > >> with > >> > >> the letter and spirit behind Section 33 of the Disability Act. On > >> > >> interpretation of such a provision legal position is abundantly clear. > >> This > >> is > >> > >> a benevolent measure introduced to ameliorate the sufferings of persons > >> who > >> are > >> > >> physically disabled. Such a provision is to be given the widest possible > >> > >> interpretation. The objective is to achieve the purpose for which such a > >> > >> provision is introduced by the Parliament. The Apex Court in Kunal Singh > >> v. > >> > >> Union of India AIR 2003 SC 1623 held that: > >> > >> ``9. Chapter VI of the Act deals with employment relating to persons with > >> > >> disabilities, who are yet to secure employment. Section 47, which falls > >> in > >> > >> Chapter VIII, deals with an employee, who is already in service and > >> acquires > >> a > >> > >> disability during his service. It must be borne in mind that Section 2 of > >> the > >> > >> Act has given distinct and different definitions of ``disability'` and > >> ``person > >> > >> with disability'`. It is well settled that in the same enactment if two > >> distinct > >> > >> definitions are given defining a word/expression, they must be understood > >> > >> accordingly in terms of the definition. It must be remembered that a > >> person > >> does > >> > >> not acquire or suffer disability by choice. An employee, who acquires > >> disability > >> > >> during his service, is sought to be protected under Section 47 of the Act > >> > >> specifically. Such employee, acquiring disability, if not protected, > >> would > >> not > >> > >> only suffer himself, but possibly all those who depend on him would also > >> suffer. > >> > >> The very frame and contents of Section 47 clearly indicate its mandatory > >> nature. > >> > >> The very opening part of the section reads ``no establishment shall > >> dispense > >> > >> with, or reduce in rank, an employee who acquires a disability during his > >> > >> service'`. The section further provides that if an employee after > >> acquiring > >> > >> disability is not suitable for the post he was holding, could be shifted > >> to > >> some > >> > >> other post with the same pay scale and service benefits; if it is not > >> possible > >> > >> to adjust the employee against any post he will be kept on a > >> supernumerary > >> post > >> > >> until a suitable post is available or he attains the age of > >> superannuation, > >> > >> whichever is earlier. Added to this no promotion shall be denied to a > >> person > >> > >> merely on the ground of his disability as is evident from sub-section (2) > >> of > >> > >> Section 47. Section 47 contains a clear directive that the employer shall > >> not > >> > >> dispense with or reduce in rank an employee who acquires a disability > >> during > >> the > >> > >> service. In construing a provision of a social beneficial enactment that > >> too > >> > >> dealing with disabled persons intended to give them equal opportunities, > >> > >> protection of rights and full participation, the view that advances the > >> object > >> > >> of the Act and serves its purpose must be preferred to the one which > >> obstructs > >> > >> the object and paralyses the purpose of the Act. Language of Section 47 > >> is > >> plain > >> > >> and certain casting statutory obligation on the employer to protect an > >> employee > >> > >> acquiring disability during service.'` > >> > >> > >> > >> 22.This Court dealing with Section 33 of the Disability Act in All India > >> > >> Confederation of the Blind v. Govt. of NCT of Delhi and Ors. 2005 (123) > >> DLT > >> 244 > >> > >> clearly laid down that the Disability act is a benevolent legislation and > >> it > >> has > >> > >> been repeatedly held that benevolent enactments ought to be given liberal > >> and > >> > >> expansive interpretation, and not narrow or restrictive construction (see > >> Madan > >> > >> Singh Shekhawat v. Union of India; 1996 (6) SCC 459; Deepal Girishbhai > >> Soni > >> v. > >> > >> United India Insurance Co. Ltd., AIR 2004 SC 2107; Babu Parasakaikadi v. > >> Babu > >> > >> 2004 (1) SCC 681). > >> > >> > >> > >> 23.Where alternative constructions are possible the court must give > >> effect > >> to > >> > >> that which will be responsible for the smooth working of the system for > >> which > >> > >> the statute has been enacted rather than the one which would put > >> hindrances > >> in > >> > >> its way. > >> > >> > >> > >> 24.If the choice is between two interpretations, the narrower of which > >> would > >> > >> fail to achieve the manifest purpose of the legislation we should avoid a > >> > >> construction which would reduce the legislation to futility and should > >> rather > >> > >> accept the bolder construction based on the view that Parliament would > >> legislate > >> > >> only for the purpose of bringing about an effective result. - Nokes v. > >> Doncaster > >> > >> Amalgamated Collieries Ltd (1940) A.C. 1014. Where alternative > >> constructions > >> are > >> > >> equally open, that alternative is to be chosen which will be consistent > >> with > >> the > >> > >> smooth working of the system which the statute purports to be regulating; > >> and > >> > >> that alternative is to be rejected which will introduce uncertainty, > >> fiction > >> or > >> > >> confusion into the working of the system.- Shannon Realities Ltd v. Ville > >> de > >> St > >> > >> Michel (1924) A.C. 185. [Maxwell pg. 45]. > >> > >> > >> > >> 25.It is well settled principle of law that as the statute is an edict of > >> the > >> > >> Legislature, the conventional way of interpreting or construing a statute > >> is > >> to > >> > >> seek the intention of legislature. The intention of legislature > >> assimilates > >> two > >> > >> aspects; one aspect carries the concept of ?meaning?, i.e., what the word > >> means > >> > >> and another aspect conveys the concept of ?purpose? and ?object? or the > >> ?reason? > >> > >> or ?spirit? pervading through the statute. The process of construction, > >> > >> therefore, combines both the literal and purposive approaches. However, > >> > >> necessity of interpretation would arise only where the language of a > >> statutory > >> > >> provision is ambiguous, not clear or where two views are possible or > >> where > >> the > >> > >> provision gives a different meaning defeating the object of the statute. > >> If > >> the > >> > >> language is clear and unambiguous, no need of interpretation would arise. > >> In > >> > >> this regard, a Constitution Bench of five Judges of the Supreme Court in > >> R.S. > >> > >> Nayak v A.R. Antulay, AIR 1984 SC 684 has held: > >> > >> ??If the words of the Statute are clear and unambiguous, it is the > >> plainest > >> duty > >> > >> of the Court to give effect to the natural meaning of the words used in > >> the > >> > >> provision. The question of construction arises only in the event of an > >> ambiguity > >> > >> or the plain meaning of the words used in the Statute would be self > >> defeating.? > >> > >> (para 18) > >> > >> > >> > >> 26.In Grasim Industries Ltd. v Collector of Customs, Bombay, (2002) 4 SCC > >> 297 > >> > >> has followed the same principle and observed: > >> > >> 27.?Where the words are clear and there is no obscurity, and there is no > >> > >> ambiguity and the intention of the legislature is clearly conveyed, there > >> is > >> no > >> > >> scope for court to take upon itself the task of amending or altering the > >> > >> statutory provisions.? (para 10) > >> > >> 28.Once this matter is seen from this perspective and we have to ensure > >> that > >> > >> persons suffering from disability also grow in stature and for this > >> reason > >> > >> reservation is provided in the employment, limiting the same only at the > >> > >> induction level and not in the matter of promotions would be totally > >> unjust. > >> > >> Therefore, in view of the aforesaid provision, coupled with the > >> interpretation > >> > >> of the Government itself provided vide OM dated 20.11.1989 and > >> corrigendum > >> dated > >> > >> 4.7.1997, reservation has to be provided in the matter of promotions as > >> well. > >> > >> 29.In this context we now examine as to whether persons like the > >> respondent > >> > >> could be deprived of the benefit on the basis of the purported policy > >> decision. > >> > >> > >> > >> 30.We feel that as per the petitioner's own argument, purported policy > >> decision > >> > >> is arbitrary and irrational and there is no justification from deviating > >> from > >> > >> the Government's policy contained in aforesaid OMs. The post of COS is a > >> Group > >> > >> C post and reservation to Group C post is provided as per the DoPT > >> circular > >> and > >> > >> the Railways own policy. Therefore, in normal course there appears to be > >> no > >> > >> reason not to provide reservation for persons suffering with disability > >> to > >> this > >> > >> post. The so-called policy decision of the petitioner, to ensure safe > >> carriage > >> > >> of goods and passengers, whereby the petitioner do not want to give > >> reservation > >> > >> for the said post to physically handicapped persons is not only unjust > >> but > >> > >> aggravates the suffering of persons living/employed with disability. > >> Further, > >> > >> > >> > >> it is to be noted that the petitioner do not deny that a person suffering > >> from > >> > >> physical disability is entitled to promotion to this very post in normal > >> course. > >> > >> We fail to understand as to how when such physically handicapped person > >> gets > >> > >> promotion to the post of COS in the normal course would be able to > >> discharge > >> the > >> > >> function of that post satisfactorily but would not be able to do so if he > >> is > >> > >> promoted to this post under the reservation quota. Ironically, this was > >> the > >> > >> argument of learned counsel for the petitioner before the Tribunal that > >> in > >> the > >> > >> normal course, despite being handicap, the respondent herein was eligible > >> to > >> be > >> > >> considered in the selection for promotion to Group C post of COS subject > >> to > >> his > >> > >> qualification in the selection. If selection by promotion to such a post > >> under > >> > >> normal channel is available to a person like the respondent and his > >> handicapped- > >> > >> ness, in that eventuality, does not come in way of discharging his > >> duties, > >> the > >> > >> reason for not providing reservation on this ground is contradictory in > >> terms > >> > >> and cannot be sustained. Such a justification for denying reservation is > >> > >> totally irrational and arbitrary. It, rather, depicts closed and narrow > >> minded > >> > >> approach of the petitioner, which is unsustainable in view of the > >> discussion > >> > >> above. > >> > >> > >> > >> 31.As a consequence of the aforesaid discussion, we uphold the judgment > >> of > >> the > >> > >> Tribunal and dismiss these writ petitions with costs quantified at > >> Rs.10,000/- > >> > >> each. > >> > >> > >> > >> (A.K. SIKRI) > >> > >> JUDGE > >> > >> > >> > >> (VIPIN SANGHI) > >> > >> JUDGE > >> > >> December 07, 2007 > >> > >> nsk > >> > >> > >> To unsubscribe send a message to [EMAIL PROTECTED] > >> with > >> the subject unsubscribe. > >> > >> To change your subscription to digest mode or make any other changes, > >> please > >> visit the list home page at > >> > >> http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in > >> > > > > To unsubscribe send a message to [EMAIL PROTECTED] > > with the subject unsubscribe. > > > > To change your subscription to digest mode or make any other changes, > > please visit the list home page at > > http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in > > > To unsubscribe send a message to [EMAIL PROTECTED] with > the subject unsubscribe. > > To change your subscription to digest mode or make any other changes, please > visit the list home page at > http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in > To unsubscribe send a message to [EMAIL PROTECTED] with the subject unsubscribe. 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