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SUPREME COURT OF INDIA
P. SATHASIVAM, CJI., RANJANA PRAKASH DESAI & RANJAN GOGOI, JJ.
Union of India & Anr. - Appellant(s)
Versus
National Federation of the Blind & Ors. - Respondent(s)
CIVIL APPEAL NO.9096 OF 2013
(Arising out of SLP (Civil) No. 7541 of 2009)
Decided On : OCTOBER 08, 2013.
(2010) 7 SCC 626 - Relied upon
(b) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Section 33 - No ambiguity in the provision - Clearly stipulating appointment to a minimum of 3% vacancies in an establishment - Out of these 1% each shall go to persons suffering from disabilities of low vision, hearing impairment and locomotor or cerebral palsy. (Para 36)
(c) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Section 33 - union of India contending that reservation in Group C & D posts being effected from prior to the enactment - Same formula not applicable to Group A & B posts - In such posts reservation should be on identified posts only - Not tenable - Section 33 does not distinguish between different cadres - After enactment there cannot be two norms for same subject matter. (Para 38)
(d) Section 33 - Appellant contending that reservation due to the Act will violate Indra Sawhney dictum of 50% reservation norms - Indra Sawhney misunderstood - 50% ceiling relates to Article 16(4) (OBC) - Section 33 relates to Article 16(1) - It is horizontal reservation. (Para 41)
AIR 1993 SC 477 - Relied upon
(e) Interpretation of statutes - Literal interpretation - Internal aids - When the language of the provision is unambiguous there is no need to take help of any aid - Heading of section or marginal notes will not control the provision. (Paras 43 and 45)
(2004) 9 SCC 686 - Relied upon
(1995) 2 SCC 745 - Distinguished
Facts of the case:
This case concerns with interpretation of Section 33 of the persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Finding of the Court:
Reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz., "computing 3% reservation on total number of vacancies in the cadre strength"
Result : Appeals disposed of.
Key Points: - The judgment holds that reservation under Section 33 is to be computed on the basis of total vacancies in the cadre strength (not only identified posts) for Group A–D posts. (!) (!) (!) - The identification of posts under Section 32 is not a precondition for computation of 3% reservation under Section 33; identification is relevant for appointment, not computation. (!) (!) (!) - The Court directs the Government to modify OM 29.12.2005 and issue new consistent instructions, identify vacancies and posts for disabled persons, and ensure implementation with time-bound directions. (!) (!) (!)
JUDGMENT
P. Sathasivam, CJI.
1) Leave granted.
2) This appeal is directed against the final judgment and order dated 19.12.2008 passed by the High Court of Delhi at New Delhi in Writ Petition (C) No. 15828 of 2006 wherein the High Court interpreted Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short ‘the Act’) and issued various directions to be complied with by the appellants herein.
3) Brief facts:
(a) National Federation of the Blind-Respondent No. 1 herein is an apex organization and a society registered under the Societies Registration Act, 1860, having its Head Office at New Delhi and is working for the protection of the rights of the visually challenged.
(b) In the year 2006, Respondent No. 1 herein filed a writ petition before the High Court in public interest seeking implementation of Section 33 of the Act alleging that the appellants herein have failed to provide reservation to the blind and low vision persons and they are virtually excluded from the process of recruitment to the Government posts as stipulated under the said Act.
(c) In the above backdrop, it is relevant to mention that way back in 1977, the erstwhile Ministry of Social Welfare, Government of India, made reservation in favour of the following three categories of disabled persons in Group C & D posts to the extent of 1 per cent each for the (i) Blind; (ii) Hearing and Speech Impairment; and (iii) persons suffering from locomotor disability. In the year 1986, the Department of Personnel & Training (DoPT), directed all the departments to take into account both identified and unidentified posts for working out the total number of vacancies to be reserved for each of the disabled categories. In spite of the above said executive order, various government departments and public sector undertakings did not give effect to the scheme of reservation which compelled Respondent No. 1 herein to organize a nation wide agitation, as a result of which, an agreement was arrived at between the parties on 27.08.1987 to undertake a Special Recruitment Drive for clearing up the backlog of vacancies.
(d) On 07.02.1996, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was brought into force making reservation of at least 3 percent posts in all government establishments to the extent of 1 per cent each for the persons suffering from (i) blindness or low vision; (ii) hearing impairment; and (iii)
locomotor disability or cerebral palsy. After enactment of the said Act, Union of India issued various orders for ensuring proper implementation of the provisions of the Act for the persons with disabilities.
(e) Respondent No. 1 herein, by filing the above said petition before the High Court asserted that despite statutory provisions and various executive orders, discrimination against the persons with disabilities continued in filling up the vacancies in various government departments whereas it was contended by the other side that the Office Memorandum (OM) dated 29.12.2005, issued by the Department of Personnel & Training, inter alia provides a system for ensuring proper implementation of the provisions of the Act for the persons with disabilities.
(f) Vide order dated 19.12.2008, the High Court disposed of the petition directing the Union of India to modify the OM dated 29.12.2005 being inconsistent with the provisions of Section 33 of the Act and issued several other directions.
(g) Being aggrieved of the above, the appellants have preferred this appeal by way of special leave before this Court.
(h) Tamil Nadu Handicapped Federation Charitable Trust, Smt S. Rajeswari and Association for Physically Challenged People Ordnance Clothing Factory filed applications for impleadment. Vide order dated 22.07.2011, this Court did not allow them to implead but to act as intervenors in the proceedings.
4) Heard Ms. Indra Jaisingh, learned Additional Solicitor General f
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