Delhi HC orders disability quota in judiciary recruitments


Court :
High Court of Delhi

Brief :
The bench comprising of Justice S. Ravindra Bhat and Justice R. V. Easwar held that the decision of the High Court administration to not include the disability quota in the upcoming direct recruitment for the Delhi Higher Judicial Services was discriminatory.

Citation :
National Federation of Blind v. Union Public Service Commission and Others AIR 1993 SC 1916 Ravi Kumar Arora v. Union of India (UOI) and Anr. reported as (111) 2004 DLT 126 All India Confederation of the Blind v. Union of India (Ministry of Railways) (W.P.(C) 23132/2005) Union of India (UOI) and Anr. v. National Federation of the Blind and Ors. 2013 (10) SCC 772 Govt. of India through Secretary and Anr. v. Ravi Prakash Gupta and Anr. 2010 (7) SCC 626 Roop Chand Adlakha and Ors. v. Delhi Development Authority and Ors., AIR 1989 SC 307 The State of Gujarat & Anr v Shri Ambica Mills Ltd., Ahmedabad & Anr. [(1974) 4 SCC 656]

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 21.03.2014

Pronounced on: 25.03.2014

+ W.P.(C) 983/2014, C.M. NOS.1973/2014 & 1974/2014

NISHANT. S. DIWAN …..Petitioner

Through: Sh. Jinendra Jain, Sh. Ajay Jain, Sh. B.N.

Gaur, Sh. R.P. Kaushal and Sh. Arun Jain,

Advocates.

Versus

HIGH COURT OF DELHI THROUGH REGISTRAR GENERAL AND

ANR. …..Respondents

Through: Sh. Rajiv Bansal and Sh. Anchit Sharma,

Advocates, for Resp. No.1.

Ms. Sonal. K. Singh and Sh. Anurag Gohil,

Advocates, for Resp. No.2.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT

HON'BLE MR. JUSTICE R.V. EASWAR

MR. JUSTICE S. RAVINDRA BHAT

%

1. In these proceedings under Article 226 of the Constitution, a

direction is sought to the Delhi High Court Establishment, through its

Registrar General (hereafter called “the High Court Establishment”)

to reserve 3% of the vacancies for the disabled persons, in the Delhi

Higher Judicial Service (DHJS) Examination-2013 and consequently

reserve 3% of the posts of the total cadre strength of that Service

(hereafter referred to as “DHJS”) and consider his case as well in the

category of “disabled persons”. Consequently, direction to the High

Court Establishment to grant extra 30 minutes to the petitioner for

W.P.(C) 983/2014 Page 1

attempting the DHJS Examination, in respect of the directrecruitment

quota is also sought.

2. The petitioner has been practicing as an advocate since 1998;

he claims to be disabled in terms of The Persons with Disabilities

(Equal Opportunities, Protection of Rights and Full Participation) Act,

1995 (hereafter referred to as the “Disabilities Act”). He suffers from

what is termed as “FOLLOW UP CASE OF HYDROCEPHALUS WITH

STUNT SURGERY WITH MYOSITIS OSSIFICANS HIP WITH ANKYLOSED

HIP”. This condition, the petitioner says, is described as “locomotor

disability” under the Disabilities Act which entitles him to benefits

under that law, especially Section 33. The petitioner contends that in

terms of an old 1977 Central Government notification, reservations

to the extent of 3% for persons with disabilities was provided for in

Group-C and Group-D posts and in Central Public Service

Undertakings. There was a continuous demand to extend that benefit

to Group-A and Group-B posts eventually leading to litigation under

Article 32 of the Constitution which culminated in the decision

reported as National Federation of Blind v. Union Public Service

Commission and Others AIR 1993 SC 1916. The Supreme Court, in its

judgement, directed the Central Government to consider the

feasibility of extending the reservations to Group-A and Group-B

posts. The petitioner relies upon Section 33 of the Disabilities Act to

urge that with its enactment, every appropriate government is

obliged to appoint in every establishment not less than 3% of the

W.P.(C) 983/2014 Page 2

vacancies, of the posts from amongst persons or class of persons with

disabilities such as blindness or blurred vision, hearing impairment or

locomotor disabilities or cerebral palsy.

3. The petitioner then refers to various developments, including

the judgment of a Single Judge in Ravi Kumar Arora v. Union of India

(UOI) and Anr. reported as (111) 2004 DLT 126 which was eventually

affirmed by the Supreme Court. The petitioner also refers to another

Division Bench ruling in All India Confederation of the Blind v. Union

of India (Ministry of Railways) (W.P.(C) 23132/2005) where a

direction to the Central Government to fill-up backlog of reserved

posts of disabled category of candidates, on the basis of total cadre

strength and not on the basis of vacancies, was given. It is submitted

that with the recent judgment of the Supreme Court, reported as

Union of India (UOI) and Anr. v. National Federation of the Blind and

Ors. 2013 (10) SCC 772, a wide nature of the rights, enuring to all

citizens with disabilities and the corresponding obligation to fill-up at

least 3% of the vacancies in respect of each service and post has been

mandated.

4. The petitioner complains that the advertisement dated

30.12.2013 issued by the High Court Establishment, calling for

applications and advertising 14 vacancies (4 set apart for SC/ST

candidates and 10 for general candidates) is contrary to the express

provisions of the Disabilities Act and the guidelines issued in that

W.P.(C) 983/2014 Page 3

regard. Emphasizing Section 33, the petitioner argues that since he

suffers from locomotor disability, the High Court Establishment was

under a duty to set-apart the appropriate number of posts having

regard to the total cadre strength of 224 posts in DHJS. It is argued

that the omission to make appropriate reservation in the proposed or

on-going recruitment process in fact amounts to discrimination

because persons with disabilities can compete for almost similar, if

not entirely identical posts, of Civil Judges and Magistrates, through a

Central Government circular of 18-01-2007.

5. It is also urged that the Central Government itself has

determined that the ITAT members would be subjected to the 3%

reservation under the Disabilities Act in the same 18.01.2007 circular.

These two categories, i.e. Civil Judges/Magistrates as well as the

members of ITAT perform similar functions which are of judicial

nature. In the circumstances, to exclude DHJS from the benefit of

reservation is both arbitrary and discriminatory. Besides, the circular

of 18.01.2007 relied upon by the High Court Establishment, there is

no rationale to support this differential treatment nor does the tenor

of the decision of the Court taken at that time, show that any

differentiation or unequal treatment was intended.

6. The relevant provisions of the Disabilities Act are as follows:

“2(a) Appropriate Government" means,-

W.P.(C) 983/2014 Page 4

(i)in relation to the Central Government or any

establishment/wholly or substantially financed by

that Government, or a Cantonment Board

constituted under the Cantonment Act, 1924, the

Central Government ;

(ii)in relation to a State Government or any

establishment wholly or substantially financed by

that Government, or any local authority, other than

a Cantonment Board, the State Government;

(iii)in respect of the Central Co-ordination Committee

and the Central Executive Committee, the Central

Government;

(iv)in respect of the State Co-ordination Committee and

the State Executive Committee, the State

Government;

xxxxx xxxxx xxxxxx

2(i)"Disability" means-

i. blindness;

ii. low vision;

iii. leprosy-cured;

iv.hearing impairment;

v.loco motor disability;

vi. mental retardation;

vii. mental illness;

xxxxx xxxxx xxxxxx

2(j)"employer" means,-

i. In relation to a Government, the authority notified

by the Head of the Department in this behalf or where

no such authority is notified, the Head of the

Department; and

ii. in relation to an establishment, the Chief Executive

Officer of that establishment;

W.P.(C) 983/2014 Page 5

xxxxx xxxxx xxxxxx

2(k) "establishment" means a corporation

established by or under a Central, Provincial or State

Act, or an authority or a body owned or controlled or

aided by the Government or a local authority or a

Government company as defined in section 617 of the

Companies Act, 1956 (1 of 1956) and includes

Departments of a Government;

xxxxx xxxxx xxxxxx

32. Identification of posts which can be reserved for

persons with disabilities. - Appropriate Governments

shall -

a. identify posts, in the establishments, which can be

reserved for the persons with disability;

b. at periodical intervals not exceeding three years,

review the list of posts identified and up-date the list

taking into consideration the developments in

technology.

xxxxx xxxxx xxxxxx

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:

W.P.(C) 983/2014 Page 6

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.

xxxxx xxxxx xxxxxx

36. Vacancies not filled up to be carried forward –

Where in any recruitment year any vacancy under

section 33, cannot be filled up due to non-availability of

a suitable person with disability or, for any other

sufficient reason, such vacancy shall be carried forward

in the succeeding recruitment year and if in the

succeeding recruitment year also suitable person with

disability is not available, it may first be filled by

interchange among the three categories and only when

there is no parson with disability available for the post

in that year, the employer shall fill up the vacancy by

appointment of a person, other than a person with

disability:

Provided that if the nature of vacancies in an

establishment is such that a given category of person

cannot be employed, the vacancies may be

interchanged among the three categories with the prior

approval of the appropriate Government.”

7. The High Court Establishment, in its reply and the arguments

advanced on its behalf in Court does not deny the essential facts,

such as publication of the advertisement calling for applications from

amongst the eligible candidates to fill-up the 14 vacancies or that 10

of them have been set apart for general candidates and 4 for SC/ST

candidates. Learned counsel for the High Court Establishment

W.P.(C) 983/2014 Page 7

however, argues that in terms of the Ministry of Social Justice and

Empowerment notification dated 18.01.2007, only Civil Judges and

Magistrates of the Delhi Judicial Service (DJS), covered by the Delhi

Judicial Service Rules and comprising of the cadre of Civil

Judges/Magistrates have been identified as posts who are subject to

the coverage of the Disabilities Act. Pointed reference is made to Sr.

No. 466 of the Central Government, Ministry of Social Justice and

Empowerment description in this regard which is as follows:

SI

No.

466

.

Designation

Physical

Requirement

s

Judges/Magistrat

es Subordinate in

Lower Judiciaries

Categories of

Disabled

suitable for

the jobs

S.SCT.C.R.W

OA.OL.BL.B.B

V

Nature of work

preferred

Deal with Civil and

Criminal cases by

adopting

established

procedure both

under Civil and

Criminal Codes.

Records evidence

and pass necessary

orders/judgments

8. Counsel for the respondent also refers to a previous Division

Bench decision of this Court dated 23.08.2006 in W.P.(C) 9840/2006

where the following order was made:

“the Government of India, Ministry of Social Justice and

Empowerment has issued a corrigendum vide Notification

dated 25

th

July, 2006 notifying that in the Gazette of India

(Extraordinary) Part I, Section 1, serial number 178 dated

the 30

th

June, 2001 containing the Ministry of Social Justice

and Empowerment notification number 16-25/99-I dated

W.P.(C) 983/2014 Page 8

Working

conditions/re

marks

The work is

mostly

performed

inside. The

work place is

well lighted.

The worker

usually works

alone.

the 31

st

May, 2001, in the List of Jobs Identified for being

held by persons with Orthopedic Disabilities or C.P. in Group

A, relating to categories of Disabled suitable for jobs, for the

letters and words “B.LV (mobility not to be restricted)”, the

letters “OA, OL, BL” shall be substituted.

In view of this corrigendum, the persons with orthopaedic

disability or C.P. having one arm (OA), one leg (OL), both

legs (BL) affected as well as blind persons and persons with

low vision (mobility not to be restricted) have been

recommended for appointment as Judges/Magistrates in

subordinate Judiciary. It is pertinent to state that this is a

recommendation of the Expert Committee constituted to

identify/review the posts persons with disabilities – in the

Ministries/Departments, Public Sector Undertakings.

The Government of NCT of Delhi shall forward the

recommendations of the Expert Committee as they stand

amended by the corrigendum dated 25

th

July, 2006 to the

Delhi High Court.

As and when such a communication is sent by the

Government of NCT of Delhi to the Delhi High Court, the

same would be processed by the Delhi High Court in

accordance with law.”

9. The respondent further states that consequential action

pursuant to the above directions was taken pursuant to the

recommendation of a five-Judge Committee made on 09.03.2007 in

respect of the DJS, comprising of Civil Judges and Magistrates. The

minutes of meeting recommended that:

“........3% of the vacancies shall be reserved for persons with

disabilities as required under Section 33 of “The Persons

with Disabilities (Equal Opportunities, Protection of Rights

and Full Participation) Act, 1995”. The Committee was of

W.P.(C) 983/2014 Page 9

the view that since the obligation to reserve 3% vacancies

arises from the provisions of Section 33 of the Act

aforementioned, there is no provision in the Rules

themselves. The reservation and appointment shall be

regulated by the statutory notification, if any, issued by the

Government of India. The Committee has in this regard

taken note of Notification No.16-25/99-NI-I dated

31.05.2001 as amended vide Corrigendum No.3914/2006/DD-III

dated 25.07.2006 issued by the Ministry of

Social Justice and Empowerment, Government of India, New

Delhi, identifying the posts of “Judges/Magistrates

Subordinate in Lower Judiciaries” as the jobs identified for

being held by persons with specified disabilities viz. BlindLow

Vision (mobility not to be restricted) OA – one Arm

Affected (right or left) OL – one leg affected (right or left),

BL (both legs affected but not arms).

The advertisement notice to be issued for future DJS

Examinations shall accordingly make a suitable provision

and invite applications from all such person as are eligible

for appointment against such vacancies.”

10. It is argued that in the absence of a specific determination

under Section 32, the petitioner cannot claim a right to be considered

as a disabled candidate nor seek that reservation should be given in

the cadre of DHJS. Counsel for the respondent also urges that since

the advertisement was issued, any interdiction by this Court at this

stage, given the fact that the examination is scheduled for

06.04.2014, would upset the entire timeline and delay the

recruitment process. It is argued that whilst there can be no quarrel

to the applicability of the Disabilities Act, yet as to what category of

posts requires to be covered by the enactment is a matter of

W.P.(C) 983/2014 Page 10

discretion best left to the High Court by virtue of Section 32. In the

present case, the exercise having been concluded on 09.03.2007 and

since in that decision, the reservations in the cadre of DHJS were not

recommended, it would be unfeasible to reserve any post for persons

with disabilities as that would involve a great deal of administrative

inconvenience.

11. The latest decision of the Supreme Court in National

Federation of the Blind (supra) considered the obligations of

employers, particularly those in the Central Government, State and

the public sector to comply with the provisions of the Disabilities Act.

The Court traced the history of the enactment as well as the

instructions issued from time to time by the Central Government to

consolidate and update the instructions. These were the Office

Memorandum dated 29.12.2005, 10.12.2008 etc. which were

analysed. The Court rejected the submission on behalf of the Union

of India (UOI) that the obligation to reserve the posts would arise

only after their identification. It was held that, “to accept such a

submission would amount to accepting the situation where the

provisions of Section 33 of the aforesaid Act would be kept deferred

indefinitely by bureaucratic inaction. Such a stand taken by the

petitioners before the High Court was rightly rejected.” The Court

then held that logically in terms of Section 32, posts had to be

identified for reservation for purposes of Section 33 but the exercise

had to be undertaken simultaneously with the coming into force of

W.P.(C) 983/2014 Page 11

the Act, to give meaning and effect to Section 33. The Court

pertinently noticed its previous decision in Govt. of India through

Secretary and Anr. v. Ravi Prakash Gupta and Anr. 2010 (7) SCC 626

that,

“16. It is only logical that, as provided in Section 32 of the

aforesaid Act, posts have to be identified for reservation for

the purposes of Section 33, but such identification was

meant to be simultaneously undertaken with the coming into

operation of the Act, to give effect to the provisions of

Section 33. The legislature never intended the provisions of

Section 32 of the Act to be used as a tool to deny the benefits

of Section 33 to these categories of disabled persons

indicated therein. Such a submission strikes at the

foundation of the provisions relating to the duty cast upon

the appropriate Government to make appointments in every

establishment (emphasis added).”

12. The Court in National Federation of the Blind (supra) then went

on to endorse the view that the extent of dependence – of

reservation, upon the identification exercise would be for “making

appointments and not for the purpose of making reservations”. The

judgment went on to hold as follows:

“30. Apart from the reasoning of this Court in Ravi

Prakash Gupta (supra), even a reading of Section 33, at the

outset, establishes vividly the intention of the legislature

viz., reservation of 3% for differently abled persons should

have to be computed on the basis of total vacancies in the

strength of a cadre and not just on the basis of the

vacancies available in the identified posts. There is no

ambiguity in the language of Section 33 and from the

W.P.(C) 983/2014 Page 12

construction of the said statutory provision only one

meaning is possible.

31. A perusal of Section 33 of the Act reveals that this

section has been divided into three parts. The first part is

"every appropriate Government shall appoint in every

establishment such percentage of vacancies not less than

3% for persons or class of persons with disability." It is

evident from this part that it mandates every appropriate

Government shall appoint a minimum of 3% vacancies in its

establishments for persons with disabilities. In this light, the

contention of the Union of India that reservation in terms of

Section 33 has to be computed against identified posts only

is not tenable by any method of interpretation of this part of

the Section.

32. The second part of this section starts as follows:

"...of which one percent each shall be reserved for persons

suffering from blindness or low vision, hearing impairment

& locomotor disability or cerebral palsy in the posts

identified for each disability." From the above, it is clear

that it deals with distribution of 3% posts in every

establishment among 3 categories of disabilities. It starts

from the word "of which". The word "of which" has to relate

to appointing not less than 3% vacancies in an

establishment and, in any way, it does not refer to the

identified posts. In fact, the contention of the Union of India

is sought to be justified by bringing the last portion of the

second part of the section viz. "....identified posts" in this

very first part which deals with the statutory obligation

imposed upon the appropriate Government to "appoint not

less than 3% vacancies for the persons or class of persons

with disabilities." In our considered view, it is not plausible

in the light of established rules of interpretation. The

minimum level of representation of persons with disabilities

has been provided in this very first part and the second part

W.P.(C) 983/2014 Page 13

deals with the distribution of this 3% among the three

categories of disabilities. Further, in the last portion of the

second part the words used are "in the identified posts for

each disability" and not "of identified posts". This can only

mean that out of minimum 3% of vacancies of posts in the

establishments 1% each has to be given to each of the 3

categories of disability viz., blind and low vision, hearing

impaired and locomotor disabled or cerebral palsy

separately and the number of appointments equivalent to

the 1% for each disability out of total 3% has to be made

against the vacancies in the identified posts. The attempt to

read identified posts in the first part itself and also to read

the same to have any relation with the computation of

reservation is completely misconceived.

XXXXXX XXXXXX XXXXXX

36. Admittedly, the Act is a social legislation enacted for

the benefit of persons with disabilities and its provisions

must be interpreted in order to fulfill its objective. Besides, it

is a settled rule of interpretation that if the language of a

statutory provision is unambiguous, it has to be interpreted

according to the plain meaning of the said statutory

provision. In the present case, the plain and unambiguous

meaning of Section 33 is that every appropriate

Government has to appoint a minimum of 3% vacancies in

an establishment out of which 1% each shall be reserved for

persons suffering from blindness and low vision, persons

suffering from hearing impairment and persons suffering

from locomotor or cerebral palsy.

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

W.P.(C) 983/2014 Page 14

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.

XXXXXX XXXXXX XXXXXX

49. Employment is a key factor in the empowerment and

inclusion of people with disabilities. It is an alarming reality

that the disabled people are out of job not because their

disability comes in the way of their functioning rather it is

social and practical barriers that prevent them from joining

the workforce. As a result, many disabled people live in

poverty and in deplorable conditions. They are denied the

right to make a useful contribution to their own lives and to

the lives of their families and community.”

W.P.(C) 983/2014 Page 15

13. With the enactment of the Disabilities Act, every establishment

was placed under an obligation to effectuate its provisions, including

its mandate to reserve and fill at least 3% of the vacancies which

arose. This obligation is, given the nature of the mandate under

Section 33, non-derogable by its character. The decision in Ravi

Prakash Gupta, (supra) held this to be so, in as many terms:

“15…….… neither Section 32 nor Section 33 of the

aforesaid Act makes any distinction with regard to Groups

A, B, C and D posts. They only speak of identification and

reservation of posts for people with disabilities, though the

proviso to Section 33 does empower the appropriate

Government to exempt any establishment from the

provisions of the said section, having regard to the type of

work carried on in any department or establishment. No

such exemption has been pleaded or brought to our notice

on behalf of the petitioners.

16. It is only logical that, as provided in Section 32 of

the aforesaid Act, posts have to be identified for reservation

for the purposes of Section 33, but such identification was

meant to be simultaneously undertaken with the coming into

operation of the Act, to give effect to the provisions of

Section 33. The legislature never intended the provisions of

Section 32 of the Act to be used as a tool to deny the benefits

of Section 33 to these categories of disabled persons

indicated therein. Such a submission strikes at the

foundation of the provisions relating to the duty cast upon

the appropriate Government to make appointments in every

establishment…….

17. While it cannot be denied that unless posts are

identified for the purposes of Section 33 of the aforesaid

Act, no appointments from the reserved categories

contained therein can be made, and that to such extent the

provisions of Section 33 are dependent on Section 32 of the

W.P.(C) 983/2014 Page 16

Act, as submitted by the learned ASG, but the extent of such

dependence would be for the purpose of making

appointments and not for the purpose of making

reservation. In other words, reservation under Section 33 of

the Act is not dependent on identification, as urged on

behalf of the Union of India, though a duty has been cast

upon the appropriate Government to make appointments in

the number of posts reserved for the three categories

mentioned in Section 33 of the Act in respect of persons

suffering from the disabilities spelt out therein. In fact, a

situation has also been noticed where on account of nonavailability

of candidates some of the reserved posts could

remain vacant in a given year. For meeting such

eventualities, provision was made to carry forward such

vacancies for two years after which they would lapse. Since

in the instant case such a situation did not arise and posts

were not reserved under Section 33 of the Disabilities Act,

1995, the question of carrying forward of vacancies or lapse

thereof, does not arise.”

14. The enunciation of law by the Supreme Court is categorical

about the imperative nature of the Disabilities Act’s provisions vis-àvis

reservation of posts in various establishments. This Court

therefore, is bound to decide the issue before it within the framework

of the declaration of law in Ravi Prakash Gupta, (supra) and National

Federation of the Blind (supra) both pronouncements of three judge

Benches of the Supreme Court.

15. Precedential compulsion apart, there is another circumstance

which the Court has to consider. The respondents main argumentsupplementary

to the lack of identification of the post of District

Judge, is that the matter was put to the Committee of Judges which

took note of the 18-01-2007 circular of the Central Government and

W.P.(C) 983/2014 Page 17

decided that reservations in the DJS (as opposed to the DHJS) cadre

and posts were to be ensured. A careful look at that document, i.e the

minutes of meeting of 09-03-2007 shows that the Committee

considered the proposal in the background of whether to provide for

reservations in DJS. This is evident from the following observations in

its minutes:

“The reservation and appointment shall be regulated by the

statutory notification, if any, issued by the Government of

India. The Committee has in this regard taken note of

Notification No.16-25/99-NI-I dated 31.05.2001 as

amended vide Corrigendum No.39-14/2006/DD-III dated

25.07.2006 issued by the Ministry of Social Justice and

Empowerment, Government of India, New Delhi, identifying

the posts of “Judges/Magistrates Subordinate in Lower

Judiciaries” as the jobs identified for being held by persons

with specified disabilities…”

However, the Committee did not positively rule-out reservations in

DHJS. The operative direction was premised on the need to take a

decision on the recruitment for DJS vacancies.

16. The second reason why this Court feels compelled to reject the

respondent’s argument is that as between DJS officers (who are

Judges) and DHJS officers (who are also Judges certainly not less so)

there is and can be no difference for the purposes of reservation under

the Disabilities Act. The mere use of the word (“Magistrates”) in Sl.

No 466 in the circular of the Central Government was not meant to

limit the benefit of reservation under the Act to only the Civil Judges/

W.P.(C) 983/2014 Page 18

Magistrates cadre or posts. Both categories of holders of posts’

workload is fairly described as “Deal with Civil and Criminal cases by

adopting established procedure both under Civil and Criminal Codes.

Records evidence and pass necessary orders/judgments.” Likewise,

the notification (of the Central Government) goes on to mention in the

last column, i.e “working conditions/remarks” that work is performed

inside and the working conditions are well lighted. These descriptions

apply equally to those in the Delhi Higher Judicial Service, who also

exercise appellate jurisdiction over the decisions of DJS officers.

Furthermore, the circular of the Central Government also describes

Income Tax Appellate Tribunal members’ posts as those which are

subject to reservations under the Disabilities Act. The decision of the

Committee (of this Court) dated 09-03-2007 surely was not intended

to result in such discrimination.

17. The Supreme Court had perspicuously held that the doctrine of

classification, which can be legitimately used to examine complaints

of discrimination and violation of Article 14, itself cannot produce

inequality, through under-classification or undue emphasis as the basis

of drawing distinction when none exist. This aspect was emphasized

in Roop Chand Adlakha and Ors. v. Delhi Development Authority and

Ors., AIR 1989 SC 307:

“7………………………………The process of classification is

in itself productive of inequality and in that sense

antithetical of equality. The process would be

constitutionally valid if it recognises a pre-existing

inequality and acts in aid of amelioration of the effects of

W.P.(C) 983/2014 Page 19

such pre-existent inequality…………………………… The

process cannot merely blow-up or magnify in-substantial or

microscopic differences on merely meretricious or

plausible. The over-emphasis on the doctrine of

classification or any anxious and sustained attempts to

discover some basis for classification may gradually and

imperceptibly deprive the article of its precious content and

end in re-placing doctrine of equality by the doctrine of the

classification…………………….”

In The State of Gujarat & Anr v Shri Ambica Mills Ltd., Ahmedabad

& Anr. [(1974) 4 SCC 656], again, the Supreme Court dwelt on the

same aspect, in the following words:

"54. A reasonable classification is one which includes all

who are similarly situated and none who are not. The

question then is: what does the phrase "similarly situated"

mean? The answer to the question is that we must look

beyond the classification to the purpose of the law. A

reasonable classification is one which includes all persons

who are similarly situated with respect to the purpose of

the law. The purpose of a law may be either the

elimination of a public mischief or the achievement of

some positive public good.

55. A classification is under-inclusive when all who are

included in the class are tainted with the mischief but there

are others also tainted whom the classification does not

include. In other words, a classification is bad as underinclusive

when a State benefits or burdens persons in a

manner that furthers a legitimate purpose but does not

confer the same benefit or place the same burden on others

who are similarly situated. A classification is overinclusive

when it includes not only those who are similarly

situated with respect to the purpose but others who are not

so situated as well. In other words, this type of

W.P.(C) 983/2014 Page 20

classification imposes a burden upon a wider range of

individuals than are included in the class of those attended

with mischief at which the law aims. Herod ordering the

death of all male children born on a particular day

because one of them would some day bring about his

downfall employed such a classification.”

In one of the earlier cases, the Court had emphasized that when some

distinction is sought to be the basis of differentiation for the purpose

of classification, under Article 14, “the classification, however, must

be based on some real and substantial distinction bearing a just and

reasonable relation to the objects sought to be attained and cannot be

made arbitrarily and without any substantial basis..” (Ref. Dhirendra

Kumar Mandal v The Superintendent and Remembrancer of Legal

Affairs to the Govt. of West Bengal and Anr. AIR 1954 SC 424).

18. In the present case, there is no material to suggest that DHJS

officers perform duties and functions which are radically different

from those in DJS. Indeed, their positions answer to the description of

“Judges” of “Subordinate courts” (the latter being the expression used

by the Constitution itself). Other posts whose holders discharge

judicial functions such as members of ITAT too have been accorded

the benefit of disability reservations under the Act.

19. In these circumstances, this Court holds that the non-inclusion

of DHJS cadre posts for the purposes of reservation under the

Disabilities Act, cannot be upheld; it amounts to discrimination.

20. Now, as to the question of relief. During the hearing, the

Petitioner had contended that in terms of the existing guidelines he

W.P.(C) 983/2014 Page 21

should be given relaxation in the time to be taken for writing the

examination by way of extension of half an hour. As far as age

relaxation is concerned, the advertisement does not specify any

maximum age limit. That question does not accordingly arise.

21. The decision in National Federation of the Blind (supra) states

that reservation under the Disabilities Act is to be vacancy-based – on

a textual reading of Section 33. If one were to literally apply that

authority to the facts of this case, it would not be possible to earmark

any post under the 3% quota since the total number of advertised posts

is only 14. Keeping in mind the circumstance that for the period 2007

onwards when the disabilities reservation was introduced in Judicial

Services in Delhi for the first time, and also taking notice of the fact

that this Court is called upon to decide the issue in the context of the

direct recruitment quota for the DHJS which is 25% of the entire cadre

strength of 224 posts or such other number as is determined, having

regard to the increased number of posts, the most feasible approach

under the circumstances would be to determine the total number of

posts that are to be filled in this quota before actually taking steps to

fill them. This Court is also mindful of the circumstance that the

advertisement in this case was issued on 30.12.2013. The petitioner

approached this Court on 03.02.2014. One of the alternatives that this

Court could adopt would be to direct the consideration of the

petitioner’s case, based upon his claim as a disabled candidate and,

therefore, entitled to be considered as against the 3% quota. Although

this course is attractive, at the same time, the Court cannot be

W.P.(C) 983/2014 Page 22

oblivious of the circumstance that other eligible and possibly equal, if

not more meritorious candidates, are unaware of their right to be

considered against this quota. Directing the petitioner’s case alone to

be processed on the basis of the documents and materials presented by

him to back-up the claim of disability would in such a case result in

keeping out those candidates. In these circumstances, this Court is of

the opinion that the most appropriate method of proceeding with this

exercise is to direct the respondents to earmark one of the advertised

posts for disabled candidates in terms of the 3% quota under the

Disabilities Act and not fill it up in the present recruitment process.

Once the recruitment process is completed and the appointments are

made, depending upon the further number of vacancies which may

exist at the stage of declaration of results, the respondents should

carry-out a review of the balance number of vacancies that can be

appropriately earmarked for those with disabilities, club them with the

post directed to be kept apart and proceed with the next recruitment

process, clearly indicating the total number of vacancies earmarked

under the 3% quota. In the event the respondents are not in a position

to advertise all the vacancies, it shall endeavour to at least carry-out a

special recruitment procedure in respect of only the earmarked

vacancies falling to the share of those entitled to be considered under

the 3% quota under the Disabilities Act, within one year of the date of

declaration of results in the current recruitment process. A direction is

accordingly issued to the respondents to carry-out the exercise and

complete the special recruitment drive after following the steps

indicated above.

W.P.(C) 983/2014 Page 23

22. The Writ Petition is entitled to succeed to the above extent

indicated above. It is accordingly allowed along with pending

applications with no order as to costs.

Order dasti.

MARCH 25, 2014

S. RAVINDRA BHAT

(JUDGE)

W.P.(C) 983/2014 Page 24

R.V. EASWAR

(JUDGE)

 

Vineet Kumar
on 28 March 2014
Published in Civil Law
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