The National Federation of the Blind, an apex organization, in India has
been for the last 4 decades working on advocacy to bring social change
to
uplift the lives of persons with disabilities. NFB uses the law as a tool
to bring about this change and has over the years achieved many landmarks
in areas of social security, housing rights and employment rights. The
organization had once again taken a n initiative in the interest of
viusally impaired people. The whole letter is as folows:-
NFB/E-29(13)/2014/ 29.9.2014
To
The Secretary
M/o Personnel, Public Grievances & Pension
North Block,
New Delhi
Subject: Issuance of amended memo in compliance of Hon’ble Apex
Court judgment dt. 8.10.13 passed in Civil Appeal No.9096/2013 amending
both O.Ms. No.36035/3/2004-Estt.(Res) dt. 29.12.05 and
No.36012/24/2009-Estt. (Res) dt. 3.12.2013.
Sir,
This has reference to the captioned judgment of Hon’ble Supreme Court of
India as well as directions issued by way of order/judgment dt.17.7.14 in
C.M. Appl. No.230/2014 in W.P.(C) 15828/2006 read with order/ judgment dt.
12.9.14 in R.A. No.412/2014 in the said writ petiion on the captioned
subject. We being the petitioner in the High court of Delhi in the
proceedings in question, are making the following suggestions for
amendment
of the aforementioned OMs in fully compliance of the judgment of Hon’ble
Apex Court.
After the said judgment of Hon’ble Apex court, your Department issued an
office memorandum dt. 3.12.13 purportedly in compliance of the directions
of Hon’ble Supreme Court of India which in fact does not meet with the
requirements of directions issued by Hon’ble Supreme Court. In this
regard
it is pertinent to mention here that what has been sought to be amended is
only para 14 relating to computation of reservation in Group A & B. Even
amendment in the said Para has not been carried out in terms of the
directions of Hon’ble Supreme Court because again the computation has been
made relatable to the vacancies filled by direct recruitment and not
vacancies in the total cadre strength. Further, no consequential
amendments have been made in paras No.2 (quantum of reservation), para 4
(Identification of job/posts), para 6 (Appointment against Reserved
Vacancies), Para 13 (Computation of Reservation), Para 15 (Effecting
reservation-Maintenance of Rosters) which have a direct bearing on the
manner of computation of reservation and implementation of scheme of
reservation) and Para 16 (Inter Se Exchange And Carry Forward Of
Reservation In Case Of Direct Recruitment).
As such, we are enclosing herewith a draft of amended memorandum to
address
the above concerns and would like to highlight the proposed changes and
justification thereof hereunder:-
Clause
Existing Clause as per O.M. dt. 29.12.05
Proposed Clause
Justification
2
*QUANTUM OF RESERVATION*
(i) Three percent of the vacancies in case of direct recruitment to Group
A, B, C & D posts shall be reserved for persons with disabilities of which
one per cent each shall be reserved for persons suffering from (i)
blindness or low vision, (ii) hearing impairment and (iii) locomotor
disability or cerebral palsy in the posts identified for each disability;
(ii) Three percent of the vacancies in case of promotion to
Group D, and Group C posts in which the element of direct recruitment, if
any, does not exceed 75%, shall be reserved for persons with disabilities
of which one per cent each shall be reserved for persons suffering from
(i)
blindness or low vision, (ii) hearing impairment and (iii) locomotor
disability or cerebral palsy in the posts identified for each disability.
*QUANTUM OF RESERVATION*
Three percent of the total number of vacancies in the strength of a cadre
for persons with disabilities irrespective of mode of recruitment
including by direct recruitment, promotion and deputation shall be
reserved
for persons with disabilities of which 1% each shall be reserved for
persons suffering from (i) blindness or low vision, (ii) hearing
impairment and (iii) locomotor disability or cerebral palsy separately for
each of them in all groups of posts
Existing Clause restricts the quantum of reservation to the vacancies only
in the posts identified for each disability as well as in the vacancies
filled by direct recruitment for Group A & B posts. Such a position has
already been struck down by the Hon’ble Apex court in the captioned
judgment by holding thus in para 51 of the said judgment:
“We are of the view that the computation of reservation for persons with
disabilities has to be computed in case of group A, B, C & D posts in an
identical manner viz. ‘Computing 3% reservation on total no. of vacancies
in the cadre strength’ which is the intention of the legislature”.
Further, both DelhiHigh court vide judgment dt. 4.8.10 in W.P. ©
No.2821/2010 titled as MCD Vs. Manoj Kumar as well as Bombay High
court
vide judgment dt.4.12.13 in PIL No.106/2010held that section 33 included
reservation in promotion also and both the said judgments have been
affirmed by Hon’ble apex court vide judgment dt. 10.12.13 dismissing the
SLP© No.9473/2011 of MCD and civil appeal of Union of India vide judgment
dt. 12.9.14 in SLP© (CC) No.13344/2014(copies of all judgments are
enclosed)
4.
*IDENTIFICATION OF JOBS/POSTS:*The Ministry of Social Justice &
Empowerment
have identified the jobs/posts suitable to be held by persons with
disabilities and the physical requirement for all such jobs/ posts vide
their notification No.16-25/99, NI.I dated 31.5.2001. The jobs/posts
given
in Annexure-II of the said notification as amended from time to time shall
be used to give effect to 3 per cent reservation to the persons with
disabilities. It may however, be noted that:
(a) The nomenclature used for any job/post shall mean and include
nomenclature used for other comparable jobs/posts having identical
functions.
(b) The list of jobs/posts notified by the Ministry of Social Justice
&
Empowerment is not exhaustive. The concerned Ministries/ Departments
shall
have the discretion to identify jobs/posts in addition to the jobs/posts
already identified by the Ministry of Social Justice & Empowerment.
However, no Ministry/ Department / Establishment shall exclude any
identified job/post from the purview of reservation at its own discretion.
(c) If a job/post identified for persons with disabilities is shifted
from one group or grade to another group or grade due to change in the pay
scale or otherwise, the job /post shall remain identified.
*IDENTIFICATION OF JOBS/POSTS:*
The Ministry of Social Justice & Empowerment have identified the
jobs/posts
suitable to be held by persons with disabilities and the physical
requirement for all such jobs/ posts vide their notification No.
16-15/2010-DD III Dt. 29.7.2013. The vacancies in the posts in the cadre
strength identified as suitable in the said notification for the
respective
category of the disability as amended from time to time in terms of
section
32 of the act, shall be used for appointment against reservation for each
of the afore mentioned three categories of disability to the extent of 1%
each to implement scheme of 3% reservation for persons with disabilities
in
accordance with section 33 of the act but the identification will have
nothing to do in the computation and entitlement of 3% reservation for
persons with disabilities as well as with respect to entitlement of 1%
reservation for each of the 3 categories of disabilities respectively. It
may however, be noted that:
(a) The nomenclature used for any job/post shall mean and include
nomenclature used for other comparable jobs/posts having identical
functions.
(b) The list of jobs/posts notified by the Ministry of Social Justice &
Empowerment is not exhaustive. The concerned Ministries/ Departments
shall
have the discretion to identify jobs/posts in addition to the jobs/posts
already identified by the Ministry of Social Justice & Empowerment.
However, no Ministry/ Department / Establishment shall exclude any
identified job/post from the purview of reservation at its own discretion.
© If a job/post identified for persons with disabilities is shifted from
one group or grade to another group or grade due to change in the pay
scale
or otherwise, the job /post shall remain identified.
The proposed amendment in clause 4 is to clarify that the identification
has nothing to do with the quantum of reservation and computation thereof.
It is relevant only to the extent of utilizing the vacancies in the
identified posts to appoint respective categories of disabilities to the
extent of their reservation of 1% in an establishment on the basis of
computation of reservation against total number of vacancies in the
strength of a cadre of an establishment. This is completely in line with
the reasoning of Hon’ble Supreme court of India in the captioned judgment
as laid down in paras 37, 38 & 39 thereof which is reproduced herein
below:
PARA 37
To illustrate, if there are 100 vacancies of 100 posts in an
establishment,
the concerned establishment will have to reserve a minimum of 3% for
persons with disabilities out of which at least 1% has to be reserved
separately for each of the following disabilities: persons suffering from
blindness or low vision, persons suffering from hearing impairment and the
persons suffering from locomotor disability or cerebral palsy.
Appointment
of 1 blind person against 1 vacancy reserved for him/her will be made
against a vacancy in an identified post for instance, the post of peon,
which is identified for him in group D. Similarly, one hearing impaired
will be appointed against one reserved vacancy for that category in the
post of store attendant in group D post. Likewise, one person suffering
from locomotor disability or cerebral palsy will be appointed against the
post of “Farash” group D post identified for that category of disability.
It was argued on behalf of Union of India with reference to the post of
driver that since the said post is not suitable to be manned by a person
suffering from blindness, the above interpretation of the Section would be
against the administrative exigencies. Such an argument is wholly
misconceived. A given post may not be identified as suitable
for one category of disability, the same could be identified as suitable
for another category or categories of disability entitled to the benefit
of
reservation. In fact, the second part of the Section has clarified this
situation by providing that the number of vacancies equivalent to 1% for
each of the aforementioned three categories will be filled up by the
respective category by using vacancies in identified posts for each of
them
for the purposes of appointment.
PARA 38
It has also been submitted on behalf of the appellants herein that since
reservation of persons with disabilities in Group C and D has been in
force
prior to the enactment and is being made against the total number of
vacancies in the cadre strength according to the OM dated 29.12.2005 but
the actual import of Section 33 is that it has to be computed against
identified posts only. This argument is also completely misconceived in
view of the plain language of the said Section, as deliberated above.
Even,
for the sake of arguments, if we accept that the computation of
reservation
in respect of Group C
and D posts is against the total vacancies in the cadre strength because
of
the applicability of the scheme of reservation in Group C and D posts
prior
to enactment, Section 33 does not distinguish the manner of computation of
reservation between Group A and B posts or Group C and D posts
respectively. As such, one statutory provision cannot be interpreted and
applied differently for the same subject matter.
PARA 39
Further, if we accept the interpretation contended by the appellants that
computation of reservation has to be against the identified posts only, it
would result into uncertainty of the
application of the scheme of reservation because experience has shown that
identification has never been uniform between the Centre and States and
even between the Departments of any Government. For example, while a post
of middle school teacher has been notified as identified as suitable for
the blind and low vision by the Central Government, it has not been
identified as suitable for the blind and low vision in some States such as
Gujarat and J&K etc. This has led to a series of litigations which have
been pending in various High Courts. In addition, Para 4 of the OM dated
29.12.2005 dealing with the issue of identification of jobs/posts in sub
clause (b) states that list of the jobs/posts notified by the Ministry of
Social Justice &Empowerment is not exhaustive which further makes the
computation of reservation uncertain and arbitrary in the event of
acceptance of the contention raised by the appellants.
6
*APPOINTMENT AGAINST UNRESERVED VACANCIES:* In the posts which are
identified suitable for persons with disabilities, a person with
disability
cannot be denied the right to compete for appointment against an
unreserved
vacancy. Thus a person with disability can be appointed against an
unreserved vacancy, provided the post is identified suitable for persons
with disabilities of the relevant category.
*APPOINTMENT AGAINST UNRESERVED VACANCIES:* A person with disability
cannot be denied the right to compete for appointment against an
unreserved
vacancy provided he meets the eligibility criteria of the given post.
Thus
a person with disability can be appointed against an unreserved vacancy
also.
In the existing clause, the right to be appointed against an unreserved
vacancy has been recognized only in respect of an identified post which is
contrary to the above quoted finding of Hon’ble Supreme Court of India
particularly para 39 of the said judgment quoted hereinabove. Moreover,
the identififcation of post cannot be read so as to curtail the right of a
person with disability to be appointed against an unreserved post if he
meets the eligibility criteria for the said post and if he is selected.
13 & 14
*COMPUTATION OF RESERVATION:* Reservation for persons with disabilities
in
case of Group C & Group D posts shall be computed on the basis of total
number of vacancies occurring in all Group C or Group D posts, as the case
may be, in the establishment, although the recruitment of the persons with
disabilities would only be in the posts identified suitable for them. The
number of vacancies to be reserved for the persons with disabilities in
case of direct recruitment to Group “C’ posts in an establishment shall be
computed by taking into account the total number of vacancies arising in
group “C’ posts for being filled by direct recruitment in a recruitment
year both in the identified and non-identified posts under the
establishment. The same procedure shall apply for Group D posts.
Similarly, all vacancies in promotion quota shall be taken into account
while computing reservation in promotion in group ‘C’ and group ‘D’ posts.
Since reservation is limited to identified posts only and number of
vacancies reserved is computed on the basis of total vacancies (in
identified posts as well as unidentified posts), it is possible that
number
of persons appointed by reservation in an identified post may exceed 3 per
cent.
Reservation for persons with disabilities in Group ‘A’ posts shall be
computed on the basis of vacancies occurring in direct recruitment quota
in
all the identified group ‘A’ posts in the establishment. The same method
of computation applies for group B posts.
*COMPUTATION OF RESERVATION:* Reservation for persons with disabilities
in
all Group of posts viz. group A,B,C & D shall be computed on the basis of
total number of vacancies in the strength of a cadre in an establishment
irrespective of mode of recruitment including by direct recruitment,
promotin and deputation although the appointment of persons with
disability
would be made by utilizing vacancies in the posts identified as suitable
for each of the three categories of disability to the extent of 1% each.
Thus it is possible that number of persons appointed against reservation
in
an identified post may exceed 3%.
*ILLUSTRATION:* If there are 100 vacancies or 100 posts in an
establishment the concerned establishment will have to reserve a minimum
of
3% for persons with disabilities out of which at least 1% has to be
reserved separately for each of the following disabilities:
i)Persons suffering from blindness and low vision;
ii)Persons suffering from hearing impairment;
iii)Persons suffering from locomotor disability or cerebral palsy.
Appointment of 1 blind person against 1 vacancy reserved for him/her will
be made against vacancy in an identified post, for instance, the post of
peon, which is identified for the blind in Group D. Similarly, one
hearing
impaired will be appointed against 1 reserved vacancy for the said
category
in the post of Store Attendant Group D. Likewise 1 person suffering from
locomotor or cerebral palsy will be appointed against the post of Furash
Group D post identified for that category of disability.
In view of the above quoted finding of the Hon’ble Supreme court of India
in paras 37 to 39 and para 51, there is no need of providing different
clauses and treatment in respect of computation of vacancies to be
reserved
for persons with disabilities in Group A & B on one hand and Groups C & D
on the other hand in different manners. Further, the proposed amendment
by
merging both existing clauses 13 & 14 also has used the same language as
that of the judgment of Hon’ble Supreme court of India and also has used
same illustration given by Hon’ble Supreme court of India in para 37.
15
*EFFECTING RESERVATION-MAINTENANCE OF ROSTERS:*
(a) All establishments shall maintain separate 100 point reservation
roster
registers in the format given in Annexure II for determining/ effecting
reservation for the disabled – one each for group ‘A’ posts filled by
direct recruitment, Group ‘B’ post filled by direct recruitment, Group ‘C’
posts filled by direct recruitment; Group ‘C’ posts filled by promotion,
Group ‘D’ posts filled by direct recruitment and Group ’D’ posts filled by
promotion.
(b) Each register shall have cycles of 100 points and each cycle of 100
points shall be divided into three blocks, comprising the following
points:
1stBlock-point No.1 to point No. 33
2nd Block-point No. 34 to point No.66
3rd Block-point No. 67 to point No.100
© Points 1, 34 and 67 of the roster shall be earmarked reserved for
persons with disabilities-One point for each of the three categories of
disabilities. The head of the establishment shall decide the categories
of
disabilities for which the points 1, 34 and 67 will be reserved keeping in
view all relevant facts.
(d) All the vacancies in Group ‘C’ posts falling in direct recruitment
quota arising in the establishment shall be entered in the relevant roster
register. If the post falling at point no.1 is not identified for the
disabled or the head of the establishment considers it desirable not to
fill it up by a disabled person or it is not possible to fill up the post
by the disabled for any other reason, one of the vacancies falling at any
of the points from 2 to 33 shall be treated as reserved for the disabled
and filled as such. Likewise a vacancy falling at any of the points from
34 to 66 or from 67 to 100 shall be filled by the disabled. The purpose
of
keeping points 1, 34 and 67 as reserved is to fill up the first available
suitable vacancy from 1 to 33, first available suitable vacancy from 34 to
66 and first available suitable vacancy from 67 to 100 by persons with
disabilities.
(e) There is a possibility that none of the vacancies from 1 to 33 is
suitable for any category of the disabled. In that case two vacancies
from
34 to 66 shall be filled as reserved for persons with disabilities. If
the
vacancies from 34 to 66 are also not suitable for any category, three
vacancies shall be filled as reserved from the third block containing
points from 67 to 100. This means that if no vacancy can be reserved in a
particular block, it shall be carried into the next block.
(f) After all the 100 points of the roster are covered, a fresh cycle of
100 points shall start.
(g) If the number of vacancies in a year is such as to cover only one
block
or two, discretion as to which category of the disabled should be
accommodated first shall vest in the head of the establishment, who shall
decided on the basis of the nature of the post, the level of
representation
of the specific disabled category in the concerned grade/post etc.
(h)A separate roster shall be maintained for group C posts filled by
promotion and procedure as explained above shall be followed for giving
reservation to persons with disabilities. Likewise two separate rosters
shall be maintained for group D posts, one for the posts filled by direct
recruitment and another for posts filled by promotion.
(i)Reservation in group A and group B posts is determined on the basis of
vacancies in the identified posts only. Separate rosters for Group a
posts
and Group B posts in the establishment shall be maintained. In the
rosters
maintained for Group A and Group B posts, all vacancies of direct
recruitment arising in identified posts shall be entered and reservation
shall be effected the same way as explained above.
*EFFECTING RESERVATION-MAINTENANCE OF ROSTERS:*
*(d) *All establishments shall maintain separate vacancy based rosters
for each cadre in the establishment to give effect to reservation to
persons with disabilities as per the format annexed as annexure II to this
memorandum which is on the basis of earlier vacancy based roster prior to
R.K. Sabbarwal’s case.
*(e) *Each register shall have cycle of 100 points and each cycle of 100
points shall be divided into three blocks comprising the following points:
1st Block- point No.1 to point No. 33
2nd Block-point No. 34 to point No.66
3rd Block-point No.67 to point No.100
*(f) *Points 1, 34 and 67 of the roster shall be earmarked reserved for
persons with disabilities-One point for each of the three categories of
disabilities. The head of the establishment shall decide the categories
of
disabilities for which the points 1,34 and 67 will be reserved keeping in
view all relevant facts.
*(g) *If the vacancy falling at point no.1 is not identified for the
disabled, one of the vacancies falling at any of the points from 2 to 33
shall be treated as reserved for the disabled and filled as such.
Likewise
a vacancy falling at any of the points from 34 to 66 or from 67 to 100
shall be filled by the disabled. The purpose of keeping points 1, 34 and
67 as reserved is to fill up the first available suitable vacancy from 1
to
33, first available suitable vacancy from 34 to 66 and first available
suitable vacancy from 67 to 100 by persons with disabilities.
*(h) *There is a possibility that none of the vacancies from 1 to 33 is
suitable for any category of the disabled. In that case two vacancies
from
34 to 66 shall be filled as reserved for persons with disabilities. If
the
vacancies from 34 to 66 are also not suitable for any category, three
vacancies shall be filled as reserved from the third block containing
points from 67 to 100. This means that if no vacancy can be reserved in a
particular block, it shall be carried into the next book.
After all the 100 points of the roster are covered, a fresh cycle of 100
points shall start and the same shall continue likewise till the placement
of each of the vacancy in the strength of cadre in every establishment.
It is a consequential amendment.
15.*INTER SE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF DIRECT
RECRUITMENT *
(a) Reservation for each of the three categories of persons with
disabilities shall be made separately. But if the nature of vacancies in
an establishment is such that a person of a specific category of
disability
cannot be employed, the vacancies may be interchanged among the three
categories with the approval of the Ministry of Social Justice &
Empowerment and reservation may be determined and vacancies filled
accordingly.
(b) If any vacancy reserved for any category of disability cannot be
filled due to non-availability of a suitable person with the disability,
such vacancy shall not be filled and shall be carried forward as a backlog
reserved vacancy’ to the subsequent recruitment year.
(c) In the subsequent recruitment year the ‘backlog reserved vacancy’
shall be treated as reserved for the category of disability for which it
was kept reserved in the initial year of recruitment. However, if a
suitable person with that disability is not available, it may be filled by
interchange among the three categories of disabilities. In case no
suitable person with disability is available for filling up the post in
the
subsequent year also, the employer may fill up the vacancy by appointment
of a persons other than a person with disability. If the vacancy is
filled
by a person with disability of the category for which it was reserved or
by
a person of other category of disability by inter se exchange in the
subsequent recruitment year, it will be treated to have been filled by
reservation. But if the vacancy is filled by a person other than a person
with disability in the subsequent recruitment year, reservation shall be
carried forward for a further period upto two recruitment years where
after
the reservation shall lapse. In these two subsequent years, if situation
so arises, the procedure for filling up the reserved vacancy shall be the
same as followed in the first subsequent recruitment year.
*1. **INTER SE EXCHANGE AND CARRY FORWARD OF RESERVATION *
(a) Reservation for each of the three categories of persons with
disabilities shall be made separately. But if the nature of vacancies in
an establishment is such that a person of a specific category of
disability
cannot be employed, the vacancies may be interchanged among the three
categories with the approval of the Ministry of Social Justice &
Empowerment and reservation may be determined and vacancies filled
accordingly.
(b) If any vacancy reserved for any category of disability cannot
be
filled due to non-availability of a suitable person with the disability,
such vacancy shall not be filled and shall be carried forward as a backlog
reserved vacancy’ to the subsequent recruitment year.
(c) In the subsequent recruitment year the ‘backlog reserved
vacancy’ shall be treated as reserved for the category of disability for
which it was kept reserved in the initial year of recruitment. However,
if
a suitable person with that disability is not available, it may be filled
by interchange among the three categories of disabilities. In case no
suitable person with disability is available for filling up the post in
the
subsequent year also, the employer may fill up the vacancy by appointment
of a persons other than a person with disability. If the vacancy is
filled
by a person with disability of the category for which it was reserved or
by
a person of other category of disability by inter se exchange in the
subsequent recruitment year, it will be treated to have been filled by
reservation. But if the vacancy is filled by a person other than a person
with disability in the subsequent recruitment year, reservation shall be
carried forward for a further period upto two recruitment years where
after
the reservation shall lapse. In these two subsequent years, if situation
so arises, the procedure for filling up the reserved vacancy shall be the
same as followed in the first subsequent recruitment year.
We are enclosing herewith the proposed amended memo based on the above
suggestions for your consideration and we would like to request you to
give
us a personal hearing also in terms of the order/ judgment of Hon’ble high
court of Delhi dt. 17.7.14. We are also enclosing herewith the copies of
all aforesaid judgments.
Thanking You, Yours Sincerely
(S.K. RUNGTA)
GENERAL SECRETARY
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