The direct link is
http://164.100.51.18/dhcorder/dhcqrydisp_j.asp?pn=5253&yr=2007
Best regards,
Amiyo.
Cell: +91-9433464329
----- Original Message -----
From: "Prof. S. R. Mittal" <[EMAIL PROTECTED]>
To: <accessindia@accessindia.org.in>
Sent: Friday, December 28, 2007 4:15 PM
Subject: Re: [AI] A land mark judgement of reservation of VH in promotion
> 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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