first go to delhi highcourt site www.delhihighcourt.nic.in
then select judge Mr A.K sikri then from month and date to again date and
month You can find the judgement their any problem let me know.
----- Original Message -----
From: "Amiyo Biswas" <[EMAIL PROTECTED]>
To: <accessindia@accessindia.org.in>
Sent: Monday, December 24, 2007 2:26 PM
Subject: Re: [AI] A land mark judgement of reservation of VH in promotion
> In that case please send me the URL.
>
> Best regards,
>
> Amiyo.
>
> Cell: +91-9433464329
>
> ----- 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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