Dear Mr. Negi.
Can you mail to me a copy of the judgement.
[EMAIL PROTECTED]
----- Original Message -----
From: "Harshvardhan Singh Negi" <[EMAIL PROTECTED]>
To: <accessindia@accessindia.org.in>
Sent: Monday, December 24, 2007 1:21 PM
Subject: Re: [AI] A land mark judgement of reservation of VH in promotion
> Hey folks,
> You can get soft copy from Delhi highcourt website I don't have any Idia
> of
> hard copy.
> Thanks in advance
> ----- Original Message -----
> From: "Amiyo Biswas" <[EMAIL PROTECTED]>
> To: <accessindia@accessindia.org.in>
> Sent: Monday, December 24, 2007 12:13 PM
> Subject: Re: [AI] A land mark judgement of reservation of VH in promotion
>
>
>> 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: <accessindia@accessindia.org.in>
>> 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
>>>
>>>
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