yes 100 per cent applicable for all handi capped category.
----- Original Message -----
From: "dr.u.n.sinha narain" <[EMAIL PROTECTED]>
To: <accessindia@accessindia.org.in>
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
>>
>>
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