Hello, I need a hard copy or the web site of the judgement for my own benefit. How can I obtain it?
Best regards, Amiyo. Cell: +91-9433464329 ----- Original Message ----- From: "Harshvardhan Singh Negi" <[EMAIL PROTECTED]> To: <[email protected]> Sent: Thursday, December 20, 2007 11:47 AM Subject: [AI] A land mark judgement of reservation of VH in promotion > 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
