Bombay High Court
Vivek Babu Patil vs The State Of Maharashtra Through ... on 6 September, 2021
Bench: Ujjal Bhuyan, Madhav J. Jamdar
1_WP11627_18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11627 OF 2018
Vivek Babu Patil ... Petitioner
Vs.
State of Maharashtra through the Secretary,
Higher and Technical Education Department
and others ... Respondents
Mr. Kaustub Gidh, Mr. Kartikeya Bahadhar i/b. Mr. Kranti L. C. for
Petitioner.
Mr. A. B. Kadam, AGP for Respondent Nos.1, 2 and 3-State.
Mr. Ashutosh M. Kulkarni a/w. Ms. Akanksha Helaskar a/w. Mr. Sarthak
S. Diwan for Respondent Nos.5 and 6.
CORAM : UJJAL BHUYAN &
MADHAV J. JAMDAR, JJ.
Heard on : AUGUST 31, 2021
Date of Pronouncement : SEPTEMBER 06, 2021
Judgment and Order (Oral) (Per Ujjal Bhuyan, J.) :-
Heard Mr. Kranti L. C., learned counsel for the petitioner; Mr. A.
B. Kadam, learned AGP for respondent Nos.1, 2 and 3 i.e., State; and
Mr. Ashutosh M. Kulkarni, learned counsel for respondent Nos.5 and 6.
None has appeared for respondent No.4, University of Mumbai.
2. By filing this petition under Article 226 of the Constitution of
India, petitioner has prayed for the following reliefs:-
(i) to set aside and quash order dated 07.02.2018 passed by
respondent No.2;
(ii) for directing respondent Nos.3 to 6 to include the name of
the petitioner as a permanent aided employee (Junior
Clerk) in the aided division of respondent No.6 college;
(iii) for directing respondent Nos.3 to 6 to consider the case of
the petitioner for promotion to the post of Senior Clerk in
respondent No.6 college as a physically disabled
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employee;
(iv) for directing respondent Nos.3 to 6 to revise the salary of
the petitioner in the post of Junior Clerk as per the Sixth
Pay Commission and thereafter to pay the arrears etc.;
(v) for directing respondent Nos.3 to 6 to fix the working
hours of the petitioner in the establishment of respondent
No.6 as a physically disabled employee;
(vi) for a direction to respondent Nos.5 and 6 to allow the
petitioner to avail late attendance in the establishment of
respondent No.6 as a physically disabled employee;
(vii) for a direction to respondent No.6 to implement
recommendations of the Grievance Committee of
University of Mumbai, respondent No.4;
(viii) for a direction to respondent Nos.5 and 6 to provide the
benefit of provident fund to the petitioner;
(ix) for a direction to respondent Nos.5 and 6 not to deduct
professional tax from the salary of the petitioner; and
(x) for a direction to respondent Nos.5 and 6 to pay the
petitioner special conveyance allowance at the rate of
10% of his basic pay together with arrears as a physically
disabled employee.
3. Apparently multiple reliefs have been claimed in the present writ
proceeding which in the ordinary course the Court would not have liked
to entertain but having regard to the fact that the reliefs claimed
primarily arise from or are related to the core grievance of the petitioner
for inclusion of his name as a permanent aided employee in the
establishment of respondent No.6 against the aided division under
reservation for physically disabled employee as well as the fact that this
Court had entertained the previous writ petition of the petitioner raising
the same grievances with positive direction, we accept the writ petition
and proceed to deal with the same on the basis of the materials on
record.
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4. It is stated that petitioner belongs to the Other Backward Class
(OBC) community and also suffers from locomotor disability to the
extent of 60% as per the Disability Certificate issued by the All India
Institute of Physical Medicine and Rehabilitation, Mumbai. Petitioner is
also a Graduate in Arts holding Diploma in Computer Software.
5. Petitioner was appointed in respondent No.6 college as a Junior
Clerk / Typist vide order dated 28.08.1999 and his service was
confirmed / made permanent vide order dated 20.09.2001.
6. Respondent No.6 college began to receive grant-in-aid from the
State Government from the year 2012. Resultantly respondent No.6
college was divided into aided and unaided divisions. Though
petitioner's service was made permanent, his appointment was not
shown against government approved aided post whereas other non-
teaching employees (some even appointed after the petitioner) were
shown against government approved aided posts.
7. Petitioner's representation before the college authorities
highlighting above grievance did not elicit response. He, therefore, filed
application before the Grievance Committee of respondent No.4
University. The Grievance Committee constituted under section 57 of
the Maharashtra Universities Act, 1994 duly considered the grievance
raised by the petitioner and recommended that he be granted pay-scale
as per the Sixth Pay Commission, entitled to the benefit of provident
fund and also granted promotion to the post of Senior Clerk. Such
recommendations of the Grievance Committee were accepted by the
Management Council of respondent No.4 and were duly communicated
to respondent No.6 by the Registrar of respondent No.4 on 31.08.2012.
Be it stated that in the said communication respondent No.6 was
informed that if it was not agreeable to the above decision of the
Management Council, it could inform respondent No.4 about the same
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failing which it would be construed that the decision of the Management
Council was acceptable to respondent No.6.
8. Petitioner has stated that the above decision of the Grievance
Committee as accepted by the Management Council of respondent No.4
has not been assailed by respondent Nos.5 and 6. Therefore, such
decision has attained finality. Notwithstanding the same, grievance of
the petitioner continued to remain unaddressed.
9. In such circumstances, petitioner approached this Court by filing
Writ Petition No.9459 of 2013 which was disposed of by this Court vide
order dated 13.11.2017. This Court after summarizing the grievance of
the petitioner and the stand taken by the authorities observed that it was
not impressed by the stand taken by the Management as well as by the
State. Drawing the attention of the respondents to the provisions of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (for short "the 1995 Act" hereinafter), this
Court expressed that it did not see how the petitioner could be denied the
relief. However, without expressing any definitive opinion at that stage
this Court directed respondent No.2 to take a decision in the matter after
giving due opportunity of hearing to the petitioner. It was further
directed that while taking such decision respondent No.2 should obtain
the views of the Commissioner for Persons with Disabilities appointed
under the 1995 Act.
10. Following the order passed by this Court, petitioner submitted a
detailed representation dated 04.12.2017 to respondent No.2 who
thereafter granted hearing to the petitioner. However, by the order dated
07.02.2018 respondent No.2 held that there were seven aided posts in
total in Group 'C' cadre of respondent No.6 college. Referring to
government resolution dated 04.08.2011, it was stated that no post was
available for persons with disability. Though petitioner became eligible
for 100% grant but since his appointment as non-teaching staff was
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made at the level of respondent No.6 college, it was declared that
respondent No.6 college was responsible in this regard. Not a single post
was vacant out of the total seven sanctioned aided posts in Group 'C'
cadre in respondent No.6 college. Therefore, petitioner could not be
accommodated in the aided posts.
11. Aggrieved by the said decision, petitioner has preferred the
present writ petition assailing the legality and validity of the impugned
order dated 07.02.2018, an English translation of which has been placed
before us, and seeking the other reliefs as indicated above.
12. This Court had issued notice on 15.10.2018 whereafter the parties
have exchanged affidavits.
13. Respondent Nos.1 to 3 in their common affidavit in reply have
justified the impugned decision taken. That apart, it is pointed out that
there are four posts of Junior Clerk in respondent No.6 college out of
which one post each is reserved for Scheduled Castes (SC) and
Scheduled Tribes (ST). In the two unreserved posts of Junior Clerk, two
persons are already working, namely, Shri. Vilas Patil and Shri. Nelson
Patil. However in the reply affidavit, reference has been made to the
opinion rendered by the Commissioner for Persons with Disabilities
according to whom if there is no post available for the petitioner to be
accommodated in the aided post of Junior Clerk / Typist then the
Management could accommodate the petitioner by creating a
supernumerary post from the date when the posts under the aided
division were created. However, considering the fact that there is no post
vacant out of the total seven sanctioned aided Group 'C' posts in
respondent No.6 college, petitioner could not be accommodated in the
aided division. Justifying the impugned decision it is contended that the
same was passed by respondent No.2 after hearing the petitioner as well
as respondent No.6 college and the Management.
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14. Respondent Nos.5 and 6 have also filed a common reply affidavit.
Here also similar stand has been taken. Additionally, it is stated that
most of the prayers sought for by the petitioner have already been
worked out and the petitioner is enjoying the benefits of the same.
Regarding the main grievance of the petitioner it is stated that there are
in all seven aided Class III category posts approved by the State
Government and as per the government policy, 3% quota has been
sanctioned for persons with disabilities. Since no post is available for
persons with disabilities at present, petitioner could not be
accommodated. In respect of promotion, it is stated that there are two
aided posts of Senior Clerk which are already filled up. Therefore, there
is no vacancy in the post of Senior Clerk to effect promotion of the
petitioner. Respondent Nos.5 and 6 have stated that petitioner is being
paid revised pay-scale under the Sixth Pay Commission and that
petitioner is already availing the benefit of late attendance in respondent
No.6 college which is available to persons with disabilities, though
strictly speaking the government resolution in this regard is applicable
only to employees working in government departments within Mumbai
City. In so far provident fund is concerned, it is stated that respondent
No.6 college has already enrolled the petitioner with the provident fund
authority in the year 2007 pursuant to which provident fund account
number has been allotted to the petitioner. Respondent No.6 college has
been depositing the employer's contribution to provident fund and also
deducting the employee's contribution from the monthly salary of the
petitioner. That apart, special conveyance allowance at the rate of
Rs.500.00 per month is being paid to the petitioner with effect from
May, 2010. Regarding non-deduction of professional tax from the salary
of the petitioner, it is stated that petitioner being a physically disabled
employee, he is exempted from such payment. No such deduction has
been made by respondent No.6 college.
15. Petitioner has filed rejoinder affidavit to the reply affidavit filed
by respondent Nos.5 and 6 wherein reliance has been placed on
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government resolution dated 04.03.2002 which sets out the procedure
for reservation of posts for persons with disabilities by providing a
separate 100 point roster where roster points 1, 34 and 67 are earmarked
for persons with disabilities. It is, therefore, contended that since the first
roster point is earmarked for persons with disabilities, case of the
petitioner ought to have been considered against the said point.
Regarding lack of promotional avenues it is stated that Government of
Maharashtra has issued government resolution dated 01.04.2010
providing for assured career progression in the event of stagnation. As
per the said scheme, in the event of an employee not getting promotion
after twelve years of service, he will be entitled to a higher pay-scale. It
is also stated that by a subsequent government resolution dated
16.07.2013 benefits available to employees working in the government
departments in Mumbai have been extended to government employees
serving in other districts of Maharashtra. In addition to the above,
averments have been made contesting the statements made by
respondent Nos.5 and 6 in their common reply affidavit as to grant of
other benefits to the petitioner. It is further stated by the petitioner that
recommendations of the Grievance Committee of respondent No.4
particularly regarding provident fund dues and grant of promotion to the
post of Senior Clerk have remained unimplemented.
15.1. Petitioner has also filed rejoinder affidavit to the reply affidavit of
respondent Nos.1 to 3.
16. However it is the sur-rejoinder filed on behalf of respondent
Nos.5 and 6 which has considerably narrowed down the controversy in
the present writ proceeding. In paragraph 4 of the sur-rejoinder it is
stated that there are total eight Class III category aided posts and that the
contention made by the petitioner in this regard is correct. Earlier
statement made by the respondents that there are only seven Class III
category aided posts is not correct and that was made out of
inadvertence. Clarifying the matter further it is stated in paragraph 5 that
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there are seven aided posts of Clerk in respondent No.6 college plus one
aided post of Librarian Clerk in the said college; thus, there are total
eight aided posts of Clerk i.e., Class III category aided posts in
respondent No.6 college. Responding to the contention of the petitioner
that as per government resolution dated 04.03.2002, roster points 1, 34
and 67 are earmarked for persons with disability, it is stated that another
government resolution dated 04.08.2011 has been issued by the State
Government clarifying the position of reservation for differently abled
persons. By the said resolution, reservation of 3% is provided for
persons with disabilities. It is stated that as per the said resolution, from
1 to 7 posts there need not be any post reserved for persons with
disabilities but from 8 to 33 posts, one post needs to be reserved for the
differently abled persons i.e., persons with disabilities. Having said that,
respondent Nos.5 and 6 have stated that at present all the eight posts are
filled up and there is no vacancy; as and when the next vacancy becomes
available, petitioner would be accommodated against such vacancy.
17. Learned counsel for the petitioner in his elaborate submissions
has assailed the impugned order on the ground that there is error in fact
as well as in law. He submits that it is quite clear now that instead of
seven posts, there are eight posts of Clerk in the aided division of
respondent No.6 college. Government resolution dated 04.03.2002 still
holds the field as per which the first roster point in the special 100 point
roster is earmarked for persons with disabilities along with roster points
34 and 67. According to him, even if contention of respondent Nos.5 and
6 is accepted that there is another government resolution dated
04.08.2011, that also provides for reservation of one post for persons
with disabilities from post Nos.8 to 33. He, therefore, submits that either
way at least one post should have been earmarked for persons with
disabilities against which petitioner should have been accommodated.
Failure to do so is illegal and arbitrary, he submits. In this connection,
learned counsel for the petitioner has referred to the previous order of
this Court dated 13.11.2017 as well as to the recommendations of the
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Grievance Committee of respondent No.4 and that of the Commissioner
for Persons with Disabilities. He has also placed reliance on the decision
of the Supreme Court in Union of India Vs. National Federation of
Blind, (2013) 10 SCC 772. Learned counsel for the petitioner has filed a
written submission along with a compilation of decisions.
17.1. While Mr. Kadam, learned AGP has supported the impugned
decision of respondent No.2 by contending that before arriving at the
same respondent No.2 had given due opportunity of hearing to the
petitioner which decision was based on the record produced by
respondent Nos.5 and 6, Mr. Kulkarni, learned counsel appearing for
respondent Nos.5 and 6 submits that in view of the latest stand taken by
respondent Nos.5 and 6 in the affidavit in sur-rejoinder, Court may
consider passing appropriate order.
18. Submissions made by learned counsel for the parties have
received the due consideration of the Court.
19. Before proceeding further, we may advert to the order passed by
this Court in the previous round of litigation i.e. on 13.11.2017, relevant
portion of which reads as under:-
"15. We do not see how the petitioner can be denied the
relief, but we express presently no opinion. Once the
Management has accepted that the petitioner is its employee,
working from 1999, then, we expect the Government and
particularly respondent Nos.1 to 3 to apply their independent
mind and take a rational and informed decision consistent with
the mandate of the Persons with Disabilities Act, 1995. They
cannot be so insensitive as to file an affidavit in this Court and
accept the version of the Management. It is clear that once this
Act has intervened, its provisions will have to be given such
interpretation as would uphold its object and purpose and not
defeat it. We do not see how any technical, much less hyper-
technical, plea of the Management can be readily accepted by
the State Government and contrary to the mandate of the
Persons with Disabilities Act, 1995. We have found that the
petitioner having been appointed and working without any
Government aid in the form of salary grant being provided to
him on par with other permanently aided employees, deserves
an opportunity to satisfy the authorities about his entitlement
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and the grievances in relation thereto.
16. We, therefore, direct the Director of Higher Education,
Maharashtra State, Pune to give an opportunity to the
petitioner to substantiate and prove his allegations and
grievances, as raised in the petition against respondent Nos.5
and 6. He must be granted a personal hearing by the Director
and allowed to produce all the records in relation to his
appointment, as also the reservation made for persons with
disabilities by the Management. He must also be given an
opportunity to satisfy and prove his case that the reservation
under the Persons with Disabilities Act, 1995 cannot be
equated or brought or understood on par with the constitutional
reservation like the reservation for the Scheduled Caste and the
Scheduled Tribe candidates. Once the petitioner is not claiming
to be appointed on the basis of his caste/class but under the
category of persons with disability, then, commensurate with
that claim of the petitioner, the Director must take a decision as
expeditiously as possible and after taking into consideration
even the reply or version of the Management. The
Management's representative can also be given an opportunity
to appear and make submissions. It will be open for the
Director to obtain from respondent No.4-University its
appropriate clarifications and version on this aspect.
17. Based on all these materials, the Director shall take a
decision as expeditiously as possible in accordance with law
and in any event, within a period of three months from today.
The Director shall not take into consideration the contents of
the affidavit filed by the Management or by the State
Government (respondent Nos.1 to 3) in this petition. He must
decide the issue independent of these affidavits and their
contents so also the annexures thereto. He is expected to pass a
reasoned order.
18. Once we direct the Director to look into the grievance of
the petitioner and equally the version of the Management in
regard thereto, the Director must also obtain the opinion and
views of the Commissioner under the Persons with Disabilities
Act, 1995 before passing his final order."
20. Following the above order of this Court, respondent No.2 passed
the impugned order dated 07.02.2018 declining to entertain the claim of
the petitioner. Respondent No.2 while taking the decision as directed by
this Court held that there were seven aided posts in Group 'C' cadre in
respondent No.6 college and as per government resolution dated
04.08.2011 no reserved post was available for persons with disabilities.
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That apart, there was no vacancy in any of those seven posts. Therefore,
petitioner could not be accommodated in the aided posts.
21. At this stage, we may refer to what was recommended by the
Grievance Committee of respondent No.4 University. Grievance
Committee had recommended amongst others that petitioner should be
extended the benefit of promotion to the post of Senior Clerk. Such
recommendation was made on the premise that petitioner as a person
with disabilities was entitled to the benefits under the 1995 Act,
including accommodation in any of the aided posts of Junior Clerk. This
recommendation of the Grievance Committee was accepted by the
Management Council. Further, the same was not challenged by
respondent Nos.5 and 6 before any forum. Thus, the said decision has
attained finality.
22. That apart, this Court in its order dated 13.11.2017 had clarified
that while taking the decision respondent No.2 should also obtain the
views of the Commissioner for Persons with Disabilities. The
Commissioner for Persons with Disabilities expressed the view that if no
post is available for accommodating the petitioner then a supernumerary
post should be created in which post petitioner should be
accommodated. Notwithstanding such positive recommendations of the
Grievance Committee as well as of the Commissioner for Persons with
Disabilities impugned decision was taken by respondent No.2 who
simply held that as per government resolution dated 04.08.2011 no
reserved post was available for persons with disabilities and in any case,
as vacancies in the seven posts were not available, petitioner could not
be accommodated.
23. However, as we have noticed above, the position has considerably
changed in view of the latest stand taken by respondent Nos.5 and 6 in
the sur-rejoinder. It is clearly stated that there are now eight aided posts
of Clerk in respondent No.6 college but since all the posts are presently
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filled up and there being no vacancy, petitioner cannot be accommodated
instantly. Whenever the next vacancy arises, respondent Nos.5 and 6
would accommodate the petitioner in such vacancy.
24. As per the government resolution dated 04.03.2002, a special 100
point roster has been prepared providing for three percent reservation to
persons with disabilities in Group A to Group D posts in state government
service. The roster points at Sr.Nos.1, 34 and 67 are earmarked for
persons with disabilities. The said government resolution is applicable
amongst others to aided institutions. It is the contention of the petitioner
that the first post of Clerk should be earmarked for persons with
disabilities. The said government resolution is applicable amongst others
to aided institutions. On the other hand respondent Nos.5 and 6 in the sur-
rejoinder have stated that there is subsequent government resolution dated
04.08.2011 which mandates three percent reservation for persons with
disabilities in Group A to Group D posts, further clarifying that though
there may not be reservation upto the 7 th post but one post should be
reserved for persons with disabilities from the 8 th to 33rd posts. Thus the
position has become clear now. Whether it is the 1 st post or it is the 8 th
post, it is evident that either way one of the posts ought to have been
earmarked for persons with disabilities. But the same has not been done.
Failure to do so has therefore vitiated the impugned decision.
25. The 1995 Act was enacted to give effect to the proclamation on
the full participation and equality of the people with disabilities in the
Asian and Pacific Region. Chapter VI of the 1995 Act deals with
"employment". While section 32 deals with identification of posts which
can be reserved for persons with disabilities, section 33 provides for
reservation of posts for persons with disabilities which should not be less
than three percent. The provisions are extracted hereunder:-
"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,
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review the list of posts identified and up-date the list
taking into consideration the developments in
technology.
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."
26. In National Federation of Blind (supra), Supreme Court referred
to and relied upon its earlier decision in the case of Government of India
through Secretary Vs. Ravi Prakash Gupta, (2010) 7 SCC 626 and
explained the subtle but significant difference in the operation of
sections 32 and 33. Scope of identification comes into play only at the
time of appointment and not necessarily relevant at the time of
computing the three percent reservation under section 33 of the 1995
Act. It was held as under:-
"29) In the light of the above pronouncement, it is clear that
the scope of identification comes into picture only at the time
of appointment of a person in the post identified for disabled
persons and is not necessarily relevant at the time of
computing 3% reservation under Section 33 of the Act. In
succinct, it was held in Ravi Prakash Gupta (supra) that
Section 32 of the Act is not a precondition for computation of
reservation of 3% under Section 33 of the Act rather Section
32 is the following effect of Section 33."
26.1. Referring to section 33, Supreme Court held that this provision
establishes vividly the intention of the legislature i.e., reservation of
three percent for differently abled persons would have to be computed
on the basis of total vacancies in the strength of a cadre and not just on
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the basis of the vacancies available in the identified posts. Holding that
there is no ambiguity in the language of section 33, Supreme Court
dissected the said section and explained the significance thereof in the
following manner:-
"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
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.
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33) The third part of the Section is the proviso which reads
thus: "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." The
proviso also justifies the above said interpretation that the
computation of reservation has to be against the total number
vacancies in the cadre strength and not against the identified
posts. Had the legislature intended to mandate for computation
of reservation against the identified posts only, there was no
need for inserting the proviso to Section which empowers the
appropriate Government to exempt any establishment either
partly or fully from the purview of the Section subject to such
conditions contained in the notification to be issued in the
Official Gazette in this behalf. Certainly, the legislature did
not intend to give such arbitrary power for exemption from
reservation for persons with disabilities to be exercised by the
appropriate Government when the computation is intended to
be made against the identified posts.
26.2. At this stage we may also mention about the provisions of section
41 of the 1995 Act which speaks of providing incentives to employers to
ensure that five percent of the workforce is composed of persons with
disabilities. On a conjoint reading of sections 33 and 41, Supreme Court
took the view that while section 33 provides for a minimum level of
representation of three percent in the establishments of appropriate
government, the legislature intended to ensure five percent of
representation in the entire workforce both in public as well as in private
sector. Supreme Court also made it clear that its decision in R K
Sabharwal Vs. State of Punjab, (1995) 2 SCC 745 which held that
percentage of reservation has to be worked out in relation to the number
of posts which form the cadre strength and that the concept of 'vacancy'
has no relevance in operating the percentage of reservation would not be
applicable to reservation for persons with disabilities because in R K
Sabharwal (supra), the point for consideration was with regard to
implementation of the scheme of reservation for SC, ST and OBC which
is vertical reservation whereas reservation in favour of persons with
disabilities is horizontal. It was also declared in unequivocal terms that
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the reservation policy stipulated in the 1995 Act is vacancy based
reservation.
26.3. Regarding the importance of employment for persons with
disabilities, Supreme Court held as under:-
"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.
50) The Union of India, the State Governments as well as the
Union Territories have a categorical obligation under the
Constitution of India and under various International treaties
relating to human rights in general and treaties for disabled
persons in particular, to protect the rights of disabled persons.
Even though the Act was enacted way back in 1995, the
disabled people have failed to get required benefit until today.
51) Thus, after thoughtful consideration, 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 and D posts in an
identical manner viz., 'computing 3% reservation on total
number of vacancies in the cadre strength' which is the
intention of the legislature. Accordingly, certain clauses in the
OM dated 29.12.2005, which are contrary to the above
reasoning are struck down and we direct the appropriate
Government to issue new Office Memorandum(s) in consistent
with the decision rendered by this Court."
27. The 1995 Act has since been replaced by the Rights of Persons
with Disabilities Act, 2016 (for short "the 2016 Act" hereinafter) which
has been enacted to give effect to the United Nations Convention on the
Rights of Persons with Disabilities and for matters connected therewith
or incidental thereto. Here also like the 1995 Act, section 33 provides for
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identification of posts for reservation for persons with disabilities
whereas section 34 provides for reservation which should not be less
than four percent.
28. The interplay between vertical reservation and horizontal
reservation was first dealt with by the Supreme Court in Indra Sawhney
Vs. Union of India, 1992 Supp (3) SCC 217. After concluding that
reservations contemplated in clause (4) of Article 16 of the Constitution
of India should not exceed 50%, it was clarified in paragraph 812 that
this rule of 50% applies only to reservations in favour of backward
classes made under Article 16(4). It was clarified that all reservations are
not of the same nature. There are two types of reservations, which may
be referred to as 'vertical reservations' and 'horizontal reservations'.
Reservations in favour of SC, ST and OBC i.e., under Article 16(4) may
be called vertical reservations whereas reservations in favour of
physically handicapped may be referred to as horizontal reservations
relatable to Article 16(1). Proceeding further, Supreme Court held that
horizontal reservations cut across the vertical reservations - what is
called inter-locking reservations. Explaining this aspect it was held that
if three percent of the vacancies are reserved in favour of physically
handicapped persons, this would be a reservation relatable to clause (1)
of Article 16. Persons selected against this quota will be placed against
the appropriate category; if he belongs to S.C. category he will be placed
in that quota by making necessary adjustments. If he belongs to open
category, he will be placed in that category by making necessary
adjustments. Thus even after providing for such horizontal reservations,
the percentage of reservations in favour of backward class citizens
would remain the same.
29. This aspect of the matter was again examined by the Supreme
Court in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission,
(2007) 8 SCC 785. It was held as under:-
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"9. The second relates to the difference between the nature
of vertical reservation and horizontal reservation. Social
reservations in favour of SC, ST and OBC under Article 16(4)
are 'vertical reservations'. Special reservations in favour of
physically handicapped, women etc., under Articles 16(1) or
15(3) are 'horizontal reservations'. Where a vertical
reservation is made in favour of a backward class under
Article 16(4), the candidates belonging to such backward
class, may compete for non-reserved posts and if they are
appointed to the non-reserved posts on their own merit, their
numbers will not be counted against the quota reserved for the
respective backward class. Therefore, if the number of SC
candidates, who by their own merit, get selected to open
competition vacancies, equals or even exceeds the percentage
of posts reserved for SC candidates, it cannot be said the
reservation quota for SCs has been filled. The entire
reservation quota will be intact and available in addition to
those selected under Open Competition category. [Vide -
Indira Sawhney, R. K. Sabharwal vs. State of Punjab, Union
of India vs. Virpal Singh Chauvan and Ritesh R. Sah vs. Dr. Y.
L. Yamul. But the aforesaid principle applicable to vertical
(social) reservations will not apply to horizontal (special)
reservations. Where a special reservation for women is
provided within the social reservation for Scheduled Castes,
the proper procedure is first to fill up the quota for scheduled
castes in order of merit and then find out the number of
candidates among them who belong to the special reservation
group of 'Scheduled Castes-Women'. If the number of women
in such list is equal to or more than the number of special
reservation quota, then there is no need for further selection
towards the special reservation quota. Only if there is any
shortfall, the requisite number of scheduled caste women shall
have to be taken by deleting the corresponding number of
candidates from the bottom of the list relating to Scheduled
Castes. To this extent, horizontal (special) reservation differs
from vertical (social) reservation. Thus women selected on
merit within the vertical reservation quota will be counted
against the horizontal reservation for women. Let us illustrate
by an example :
If 19 posts are reserved for SCs (of which the quota for
women is four), 19 SC candidates shall have to be first
listed in accordance with merit, from out of the successful
eligible candidates. If such list of 19 candidates contains
four SC women candidates, then there is no need to disturb
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the list by including any further SC women candidate. On
the other hand, if the list of 19 SC candidates contains only
two woman candidates, then the next two SC woman
candidates in accordance with merit, will have to be
included in the list and corresponding number of candidates
from the bottom of such list shall have to be deleted, so as
to ensure that the final 19 selected SC candidates contain
four women SC candidates. [But if the list of 19 SC
candidates contains more than four women candidates,
selected on own merit, all of them will continue in the list
and there is no question of deleting the excess women
candidate on the ground that 'SC-women' have been
selected in excess of the prescribed internal quota of four.]"
30. Again in Union of India Vs. M. Selvakumar, (2017) 3 SCC 504,
Supreme Court had the occasion to once again examine the inter-locking
of vacancies necessitated by vertical and horizontal reservations. It was
held as follows:-
"22. Article 16 of the Constitution provides for equality of
opportunity in matters of public employment. The State in
terms of Article 16 of the Constitution provides two types of
reservations i.e. a vertical or social reservation as provided for
in Article 16 clause (4) and horizontal reservation which is
referable to Article 16 clause (1). Special reservation in favour
of physically handicapped, women etc. under Article 16(1) or
15(3) of the Constitution are the instances of horizontal
reservation."
31. In the light of the above discussions, we are of the view that the
impugned decision of respondent No.2 dated 07.02.2018 cannot be
sustained. The same is accordingly set aside and quashed. Consequently,
we direct respondent Nos.2, 5 and 6 to include the petitioner as a
category 'C' employee (Clerk) in the establishment of respondent No.6
as a person with disability under the aided division. Since such inclusion
of the petitioner would require the dislodging of an incumbent employed
either at Sr.No.1 or at Sr.No.8, the said respondents should provide an
opportunity of hearing to the affected employee as well as to the
petitioner and thereafter pass the consequential order in accordance with
law having regard to the discussions made above.
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32. Let the above exercise be carried out within a period of three
months from the date of receipt of a copy of this order. All other
consequential benefits to which petitioner is entitled as a person with
disabilities including arrear dues etc. shall be made available to the
petitioner.
33. With the above directions, writ petition is disposed of.
(MADHAV J. JAMDAR, J.) (UJJAL BHUYAN, J.)
Minal Parab
