Delhi High Court
Babita Pathak & Others vs High Court Of Delhi & Others on 22 February, 2013
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 22.02.2013
+ WP (C) No. 997/2011
BABITA PATHAK & OTHERS ... Petitioners
versus
HIGH COURT OF DELHI & OTHERS ... Respondents
Advocates who appeared in this case:
For the Petitioners : Ms Nitya Ramakrishnan with Ms Nalini Tripathi,
Ms Suhasini Sen and Mr Rahul Kripalani
For the Respondents : Mr Viraj R. Datar with Mr Chetan Lokur
WITH
+ WP (C) No. 3251/2010
DEEPTI ... Petitioner
versus
HIGH COURT OF DELHI & OTHERS ... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Neeraj Kumar
For the Respondents : Mr Viraj R. Datar with Mr Chetan Lokur
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN
JUDGMENT
BADAR DURREZ AHMED, J
1. These writ petitions concern the Delhi Judicial Service Examination
2010. The High Court of Delhi (Respondent No.1) had issued a
notification dated 26.10.2009 with regard to the holding of the Delhi
Judicial Service Examination in respect of 60 vacancies. 27 vacancies were
for the General category, 14 vacancies were for the Scheduled Caste
category, 14 were for the Scheduled Tribes category and 5 vacancies were
reserved for the physically handicapped persons (blind / low vision). It
may be pointed out at this stage itself that out of these five vacancies,
which were reserved for physically handicapped persons, one vacancy was
carried forward and advertised for the fifth time, one vacancy was carried
forward and advertised for the third time, two vacancies were carried
forward and advertised for the second time and one vacancy was advertised
for the first time.
2. The main controversy is with regard to the manner in which the five
vacancies for the physically handicapped persons are to be filled. The
petitioners in these writ petitions are all persons belonging to the General
category. In the final result that was declared for the said DJS Examination
2010, the petitioner No.1 in WP(C) 997/2011, was placed at S.No.30 in the
order of merit. Similarly, the petitioner No.2 in that writ petition was at
S.No.31 and the petitioner No.3 was at S.No.34. The petitioner in WP(C)
No.3251/2010, namely, Deepti, had, in fact, not even qualified in the
preliminary examination and was at No.4 after the candidates who had
made the cut-off for the main examination. However, by an interim order
dated 31.05.2010 in CM No. 6484/2010 in WP(C) 3251/2010, the said
Deepti was permitted to appear for the main examination, subject to the
final outcome of the writ petition. Deepti has been placed at S.No.32 after
the final merit list was taken out. The case of the petitioners is essentially
that the seats reserved for the physically handicapped persons cannot be
carried forward without a time-cap. According to them, Section 36 of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation), Act, 1995 (hereinafter referred to as 'the said Act')
contemplates the carrying forward of a vacancy reserved for the physically
handicapped person for only one year. Section 36 of the said Act reads as
under:-
"36. Vacancies not filled up to be carried forward.--
Wheres 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 person
with disability available for the post in that year, the employer
shall fill up the vancancy 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 can not be
employed, the vacancies may be interchanged among the three
categories with the prior approval of the appropriate
Government."
3. It has been contended that the provision is mandatory, in the sense
that it uses the word "shall" when it directs that if, even after carrying
forward of a vacancy to the succeeding recruitment year, no suitable person
with disability is available even by interchange among the three categories
(blind or low vision; hearing impairment; locomotor disability or cerebral
palsy), then the employer is mandated to fill up the vacancy by appointment
of a person other than a person with disability. The emphasis is on the
phrase "the employer shall fill up". According to the learned counsel for
the petitioners, the use of the word "shall" clearly implies that a duty has
been cast upon the employer to fill up the vacancy in such an eventuality by
appointment of a person other than a person with disability. Since a duty
has been cast on the employer, it implies that the persons belonging to the
General category would have a right to be employed in such eventuality
provided they are suitable and there are vacancies. In this backdrop, it has
been contended that there were 27 General category vacancies, all of which
have been filled by the first 27 candidates in order of merit. However, the 5
vacancies for the persons with disability remained unfilled. By virtue of
Section 36 of the said Act, 4 out of these 5 vacancies were carried forward
from earlier recruitment years and, therefore, ought to have been released
for being filled up by persons from the General category. If this were to be
so, 4 vacancies would be available for being filled up by the General
category. It was contended that the persons who were placed at ranks 28th
and 29th of the merit list after the final examination and interview, had
opted out of contention and, therefore, the petitioner Nos.1 & 2 in WP(C)
997/2011 and the petitioner in WP(C) 3251/2010 would have a right to be
appointed against the said four vacancies as they would be the next three
persons in order of merit having the ranks of 30, 31 and 32. Insofar as the
petitioner No.3 in WP(C) 997/2011 is concerned, his case is different. He
does not make the argument with regard to the vacancies for persons with
disability inasmuch as, even if he were to take that argument, he would not
qualify as he is not within the next four candidates after the selected
candidate at S.No.27. This is so because his rank was 34. Consequently,
his argument is based on an entirely different footing and that is that there
were 14 Scheduled Tribe vacancies advertised, but only one could be filled
because of non-availability of suitable candidates belonging to that
category. The argument is that such a large number of seats go-a-begging
because of the non-availability of the Scheduled Tribe candidates in Delhi
and, therefore, such seats should be de-reserved and, if that were to happen,
then the petitioner No.3 in WP(C) 997/2011 would be in the reckoning for
appointment. We may observe at the outset that such an argument is very
far-fetched and tenuous. The petitioner No.3 does not have any right to be
appointed against an advertised Scheduled Tribe vacancy. It is only if a
carry forward or a backlog vacancy is de-reserved after following the due
process of law that such a seat would be available for being filled up by a
General category candidate. Therefore, the case of the petitioner No.3 in
WP(C) 997/2011 is clearly untenable.
4. It is also untenable for the reasons for which we feel that the case of
the other petitioners has no merits. This would be clear from the discussion
below.
5. Insofar as the other petitioners are concerned, the argument is that
the carrying forward of vacancies reserved for persons with disabilities
beyond one year is not permissible under Section 36 of the said Act. Ms
Nitya Ramakrishnan, arguing for the petitioners 1 and 2 in WP(C)
997/2011, submitted that Section 33 of the said Act deals with reservation
for disabled persons in recruitment. It would be instructive to set out that
provision at this juncture itself. Section 33 of the said Act reads as under:-
"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."
6. Section 36 provides that if, in any given recruitment year, the
vacancies reserved for disabled persons cannot be filled up due to non-
availability of a suitable person, the vacancy "shall" be carried forward to
the next year and, if in the succeeding year also, no suitable candidate is
found, the post could be filled by a person, other than a person with
disability. Ms Nitya Ramakrishnan also referred to the DOPT O.M. dated
29.12.2005, in particular to paragraph 16 thereof, which reads as under:-
"16. 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 that disability or, for any other sufficient
reason, 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 person 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 whereafter 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."
7. She contended that the said O.M. goes a step further and provides
that if a suitable candidate is not found even in the subsequent recruitment
year and, if the post is filled by a person other than a disabled person, the
reservation may be carried forward for a further period of two years,
following which it would lapse. Thus, according to her, the said O.M.
makes the carrying forward beyond the second year, contingent upon the
filling up of the reserved seat in the second year, by a person who is not
disabled. It was argued that since in the present case, the respondents had
not filled the seats with disabled persons, it could not have carried forward
the seats for a period beyond what was contemplated by Section 36 of the
said Act. In other words, beyond the year next to that of the first year, the
vacancy was advertised as having been reserved for disabled persons. She
submitted that carrying forward of posts or vacancies is not the rule in
horizontal reservation as distinct from the cases of vertical reservation. She
submitted that Section 36 of the said Act is by way of an exception to the
said rule insofar as horizontal reservations are concerned. Relying upon the
decision of the Supreme Court in M. Nagaraj and Others v. Union of
India & Others: 2006 (8) SCC 212, she submitted that the carrying
forward must be subjected to a time-cap, otherwise it would operate to the
detriment of efficiency and good governance and that the extent of
reservation must be purposive and context specific.
8. She also submitted that where a power is given to do a certain thing
in a certain way, that thing must be done in that way or not at all and that
other methods of performance are forbidden. She placed reliance for this
proposition on the Supreme Court decision in Hukam Chand Shyam Lal v.
Union of India & Others: 1976 (2) SCC 128. In this context, she
submitted that the said Act provides for a reservation based on a percentage
of the vacancies and it also provides for carrying forward of such
vacancies. But, the carry forward permitted by the said Act must be done
in the manner specified in the said Act and, in particular, under Section 36
thereof or not at all. According, to her, Section 36 of the said Act does not
confer any power on the employer to carry forward the posts beyond the
first year and on the contrary, the said provision envisages that the posts so
reserved shall be filled in the second year itself either by a physically
handicapped person of a different category and, if no such suitable person
is available, then by any other person. She submitted that even the O.M.
dated 29.12.2005 imposed a time-cap on the carrying forward of
reservations for persons with disabilities. She submitted that if the
provisions of Section 36 of the said Act and of the O.M. dated 29.12.2005
are read together, the following position would emerge:-
i) In the first year of reservation of a vacancy for persons
with disabilities, if a suitable candidate is not found, the
vacancy shall be carried forward to the next recruitment
year;
ii) a) In the succeeding year, the vacancy may be filled
by a person with another category of disability, in
which case, the reservation would be satisfied; or
b) It may be filled by a person without disability, in
which case, the reserved vacancy would carry over
to the next year;
iii) The said Act did not contemplate any carry over beyond the
year next to that of the initial reservation;
iv) The said O.M. dated 29.12.2005 permitted the carry forward
beyond the year next to that of the initial reservation, if, and
only if, the vacancy had been filled by a person without
disability;
v) Therefore, no reservation for persons with disability is
permitted for a vacancy that has remained unfilled for two
successive years;
vi) It was contended that whether the words used are "may" or
"shall", the intention is that the vacancy should not remain
unfilled beyond the first year that it is advertised as reserved
for the physically handicapped. There cannot be any arbitrary
refusal to fill the post in the second year.
9. In view of the aforesaid submissions, the learned counsel further
submitted that the two posts reserved initially for the physically
handicapped in the years 2006 and 2008 respectively could not be carried
forwarded as reserved vacancies beyond 2008 and 2009 respectively as
they were not filled by the General candidates in the meantime. This is so
because, according to the learned counsel, neither Section 36 of the said
Act nor the said O.M. dated 29.12.2005 permits the carry-forward beyond
the second year. It was also contended that the respondent No.1 is forcing
the carry over quota for the physically handicapped to lapse and that the
interest of the physically disabled persons can be better protected by
appointing persons from the General category, so that the reservation can
be carried over from year to year and kept alive in terms of the O.M. dated
29.12.2005. It was further contended that the two vacancies reserved in the
year 2009 for persons with disabilities must also be filled in 2010 by those
in the General category because, first of all, both Section 36 of the said Act
and the said O.M. dated 29.12.2005 contemplate such an appointment;
secondly, the interests of administration of justice require this to be done;
thirdly, the term "shall" in Section 36 of the said Act as well as the term
"may" in the said O.M. can only be interpreted in consonance with the
established ratio of cases that there must be a good and sufficient reason for
not complying with the requirements of administration and that the State
cannot be whimsical in denying appointment to successful candidates.
Reliance was placed on the Supreme Court decision in Shankarsan Dash v.
Union of India: 1991 (3) SCC 47 and Vice-Chancellor, University of
Allahabad and Ors. v. Dr Anand Prakash Mishra and Ors.: 1997 (10)
SCC 264. Consequently, Ms Ramakrishnan submitted that a mandamus
would lie to direct that the posts advertised for the fifth and third time be
treated as general vacancies and be filled as such. She also submitted that
the mandamus would also lie in filling up the two vacancies reserved in
2009 for physically handicapped persons in 2010 in the interest of fair
administration and justice. For, such a course would not take away
anything from the entitlements of physically handicapped, but would ensure
that there is a valid carry over of seats for 2011 and 2012.
10. The learned counsel appearing on behalf of the other petitioner
adopted the arguments of Ms Nitya Ramakrishnan. The learned counsel
also submitted that a literal and strict interpretation has to be given to
Section 36 of the said Act. This is so because the concept of carry forward,
according to the learned counsel, is not applicable in case of horizontal
reservation. Reliance was placed for this proposition on the Supreme Court
decision in Jitendra Kumar Singh and Another v. State of Uttar Pradesh
& Others: 2010 (3) SCC 119. Consequently, it was urged that Section 36
was an exception to this rule and, therefore, required to be construed
strictly. As such, it was contended that the word "shall" appearing in
Section 36 ought to be read as "shall" and not as "may" and, therefore, the
vacancies reserved for physically disabled persons could not be carried
forward beyond the second year, meaning thereby that 4 vacancies would
be available for being filled up by the candidates of General category which
would include the petitioners.
11. Mr Datar, appearing on behalf of the High Court of Delhi, submitted
that the said Act being a beneficial / welfare legislation enacted to benefit
the persons with disabilities had been enacted with the object and purpose
of giving effect to the proclamation on the full participation and equality of
the persons with disabilities as also to ensure equal opportunities and
protection of the rights of full participation of such persons. That being the
case, it was submitted that the said Act ought to be given a liberal,
purposive and constructive interpretation in favour of the persons with
disabilities. For this proposition, he placed reliance on Bata India Ltd v.
Union of India and Others: 180 (2011) DLT 351 (DB); National
Federation of the Blind v. Union of India & Others: 156 (2009) DLT 446
(DB), Kunal Singh v. Union of India and Another: 2003 (4) SCC 524 and
GNCTD and Others v. All India Confederation of the Blind: 128 (2006)
DLT 695 (DB).
12. In Bata India Limited (supra), a Division Bench of this court, had, in
turn, referred to various decisions of the Supreme Court to arrive at the
conclusion that a beneficial legislation is to be interpreted in favour of the
beneficiaries when it is possible to take two views of a provision. The first
decision referred to in Bata India Ltd (supra) was that of Bharat Singh v.
Management of New Delhi Tuberculosis Centre, New Delhi and Others:
1986 (2) SCC 614, wherein the Supreme Court held as under:-
"... Now, it is trite to say that acts aimed at social amelioration
giving benefits for the have-nots should receive liberal construction.
It is always the duty of the Court to give such a construction to a
statute as would promote the purpose or object of the Act. A
construction that promotes the purpose of the legislation should be
preferred to a literal construction. A construction which would
defeat the rights of have-nots and the underdog and which would
lead to injustice should always be avoided. ..."
13. Similarly, in S.M. Nilajkar & Others v. Telecom District Manager,
Karnataka: 2003 (4) SCC 27, another decision referred to in Bata India
Limited (supra), the Supreme Court observed as under:-
"12 ...It is well settled by a catena of decisions that labour laws
being beneficial pieces of legislation are to be interpreted in
favour of the beneficiaries in case of doubt or where it is
possible to take two views of a provision..."
14. A word of caution, however, was sounded in Usha Breco Mazdoor
Sangh v. Management of Usha Breco Limited and Another: 2008 (5)
SCC 554, which has also been noted in Bata India Limited (supra). In
Usha Breco (supra), the Supreme Court observed as under:-
"26. It may not be a correct approach for a superior court to
proceed on the premise that an Act is a beneficient legislation in
favour of the management or the workmen. The provisions of
the statute must be construed having regard to the tenor of the
terms used by Parliament. The court must construe the statutory
provision with a view to uphold the object and purport of
Parliament. It is only in a case where there exists a grey area and
the court feels difficulty in interpreting or in construing and
applying the statute, the doctrine of beneficient construction can
be taken recourse to. Even in cases where such a principle is
resorted to, the same would not mean that the statute should be
interpreted in a manner which would take it beyond the object
and purport thereof."
15. In similar vein is the decision of the Supreme Court in Edukanti
Kistamma (Dead) Through LRs & Others v. S. Venkatareddy (Dead)
Through LRs & Others: 2010 (1) SCC 756.
16. In National Federation of Blind (supra), a Division Bench of this
court held as under:-
"16. The Disabilities Act was enacted for protection of the
rights of the disabled in various spheres like education, training,
employment and to remove any discrimination against them in
the sharing of development benefits vis-a-vis non-disabled
persons. In the light of the legislative aim it is necessary to give
purposive interpretation to Section 33 with a view to achieve
the legislative intendment of attaining equalization of
opportunities for persons with disabilities. ..."
17. In Kunal Singh (supra), the Supreme Court held as under:-
"9. ... In construing a provision of a social beneficial
enactment that too dealing with disabled persons intended to
give them equal opportunities, protection of rights and full
participation, the view that advances the object of the Act and
serves its purpose must be preferred to the one which obstructs
the object and paralyses the purpose of the Act. Language of
Section 47 is plain and certain casting statutory obligation on
the employer to protect an employee acquiring disability during
service."
18. In GNCTD v. All India Confederation of the Blind (supra), a
Division Bench of this court observed, with reference to the said Act, that it
was a welfare legislation and, therefore, if two views were possible, the
interpretation which was in favour of the handicapped persons, ought to be
adopted. From the above decisions, which have been relied upon by Mr
Datar, it becomes clear that social welfare legislations ought to be given a
beneficial and purposive construction which advances the object of the
legislation. Of course, such an interpretation would only be possible where
the provision is open to more than one meaning and is in keeping with the
legislative intent.
19. It was also contended by Mr Datar that the said Act, which includes
the said Section 36, is a piece of legislation which is aimed at the
amelioration of persons with disabilities. The said Act does not
contemplate or intend to create or grant any rights in favour of persons,
other than those with disabilities. It was contended that Section 36 of the
said Act restricts the natural tendency of an employer to de-reserve the
seats reserved for different categories of disabled persons and by filling
them up with persons who are not disabled. Section 36, according to Mr
Datar, does not create any right in favour of the persons belonging to the
General category, such as the petitioners in these writ petitions. It was
submitted by him that the action of the respondents in carrying forward the
vacancies reserved for persons with disabilities was designed to give full
effect to the mandate of the said Act as provided in Section 33 thereof so as
to ensure 3% representation of persons with disabilities in the Delhi
Judicial Service. The object being to provide equal opportunities of
participation to the persons with disabilities in the Delhi Judicial Service.
In this backdrop, it was submitted that the action of carrying forward the
vacancies reserved for persons with disabilities, is not an arbitrary act, but
is a conscious decision to further the objective of the said Act. At the same
time, Mr Datar submitted that it is not the case of the respondent No.1 that
vacancies reserved for persons with disabilities be carried forward for an
indefinite period of time. He submitted that the decision would have to be
taken at an appropriate point of time with regard to the carrying forward of
such vacancies, but that decision would have to be taken prior to the
notification of the vacancies and cannot be altered once the vacancies have
been notified and the examination process is underway.
20. It was also submitted by Mr Datar that the use of the word "shall" in
Section 36 of the said Act should be read as "may" keeping in view the
context in which it is used as also the object of the legislation. As regards
the O.M. dated 29.12.2005 issued by the DOPT, Government of India, Mr
Datar submitted that the same was not applicable in the present case
inasmuch as the respondent No.1 has not adopted the said O.M. However,
he submits that if one were to go through the said O.M. dated 29.12.2005, it
would be clear that the Government of India also has interpreted Section 36
in such a way that the word "shall" ought to be construed as "may" and is
not mandatory.
21. Mr Datar referred, inter alia, to the following decisions in order to
persuade us to read the word "shall" as "may":-
1) Sainik Motors, Jodhpur and Others v. State of Rajasthan: AIR
1961 SC 1480;
2) Rubber House v. Excellsior Needle Industries Pvt. Ltd.: AIR
1989 SC 1160 (1);
22. In Sainik Motors (supra), the Supreme Court observed as under:-
"12. It is, however, contended that though the section creates
an option, the Rules and the notification make the payment
compulsory, and attention is drawn to the word "shall" used
both in Rules 8 and 8-A and the notification whereas the words
in the two provisos to Section 4 are "may accept". The word
'shall' is ordinarily mandatory, but it is sometimes not so
interpreted if the context or the intention otherwise demands.
In In re Lord Thurlow Ex Parte Official Receiver [ (1895) 1 QB
724] Lord Esher, M.R. observed at p. 729 that "the word 'shall'
is not always obligatory. It may be directory", and Lopes, L.J.
at p. 731 added:
"It is clear that the word 'shall' is not always used in a
mandatory sense. There is abundance of authority to the
contrary in cases where it has been held to be directory
only."
It was thus that the word "shall" was held to be directory only,
in that case, by Coutts Trotter, C.J., in Manikkam Pattar v.
Nanchappa Chettiar, 1928 Mad WN 441, by Russel, J., in
Rustom v. H. Kennedy, ILR 26 Bom 396; Rustom Jamshed
Irani, In re, 3 Bom LR 653, by Venkatasubba Rao, J., in Jethaji
Peraji Firm v. Krishnayya, ILR 52 Mad 648 at p. 656: (AIR
1930 Mad 278 at p. 280), and by the Judicial Committee in
Burjore and Bhavani Pershad v. Mt. Bhagana, 11 Ind App 7
(PC)."
23. In Rubber House (supra), the Supreme Court held as follows:-
"31. The word "shall" in its ordinary import is obligatory.
Nevertheless, the word "shall" need not be given that
connotation in each and every case and the provisions can be
interpreted as directory instead of mandatory depending upon
the purpose which the legislature intended to achieve as
disclosed by the object, design, purpose and scope of the
statute. While interpreting the concerned provisions, regard
must be had to the context, subject-matter and object of the
statute in question."
24. We may also refer to another decision of the Supreme Court which
has been noticed in Rubber House (supra). That decision is in the case of
Raza Buland Sugar Co. Ltd v. Municipal Board, Rampur: AIR 1965 SC
895, wherein the Supreme Court observed as under:-
"27. ... The question whether a particular provision of a
statute which on the face of it appears mandatory, inasmuch as
it uses the word "shall" -- as in the present case --is merely
directory cannot be resolved by laying down any general rule
and depends upon the facts of each case and for that purpose the
object of the statute in making the provision is the determining
factor. The purpose for which the provision has been made and
its nature, the intention of the legislature in making the
provision, the serious general inconvenience or injustice to
persons resulting from whether the provision is read one way or
the other, the relation of the particular provision to other
provisions dealing with the same subject and other
considerations which may arise on the facts of a particular case
including the language of the provision, have all to be taken
into account in arriving at the conclusion whether a particular
provision is mandatory or directory."
25. Apart from the above decisions, we may also notice one more
decision of the Supreme Court in the case of Pesara Pushpamala Reddy v.
G. Veera Swamy & Others: 2011 (4) SCC 306, wherein the Supreme Court
has quoted from the Justice G.P. Singh's Principles of Statutory
Interpretation, which explains that the use of the word "shall" raises a
presumption that a particular provision is imperative, but the said
presumption may be rebutted by other considerations such as the object and
scope of the enactment and the consequences flowing from such a
construction. The Supreme Court observations were as under:-
"28. As has been explained by Justice G.P. Singh
in Principles of Statutory Interpretation, 12th Edn., 2010 at pp.
406-07:
"The use of word 'shall' raises a presumption that the
particular provision is imperative; but this prima facie
inference may be rebutted by other considerations such
as object and scope of the enactment and the
consequences flowing from such construction."
26. It is, therefore, clear that the use of the word "shall" is by no means
conclusive that the provision in which it is used is mandatory. It may even
be directory and that would depend on the facts of each case. It would also
depend on the object of the statute, the purpose for which the provision has
been made, its nature and the intention of the legislature in making that
provision. There are other factors, such as the inconvenience or injustice to
persons which would result from reading the provision in one way or the
other and the relationship of that particular provision with the other
provisions dealing with a similar subject. All these considerations would
be necessary for the purposes of examining whether the presumption that
the word "shall" is imperative can be rebutted or not so as to read it as
being merely directory or not.
27. It was also contended by Mr Datar that the petitions were not, in any
event, maintainable and ought not to be allowed by this court since the
petitioners, being well aware of the terms and conditions as set out in the
notification dated 26.10.2009, whereby the vacancies and the process of
examination was notified for the Delhi Judicial Service Examination 2010,
participated in the process without protest or demur and have only
challenged the same upon being declared unsuccessful. It would be
relevant to point out that while the petitioners in WP(C) 997/2011 have
approached this court only after the declaration of the final result, the
petitioner (Deepti) in WP(C) 3251/2010 had approached this court earlier,
but after the declaration of the result of the preliminary examination. As
pointed out earlier, she had not made the cut-off. The cut-off was at 128
marks in the preliminary examination, whereas she had secured 127.5
marks and was 4 positions below the last person, who had qualified in the
preliminary examination. From this, it is clear that all the petitioners have
approached this court by way of these writ petitions after having
participated, at least in the preliminary examination without any protest or
demur.
28. Mr Datar placed reliance on the Supreme Court decision in the case
of Rakhi Ray and Others v. The High Court of Delhi and Others: 2010
(2) SCC 637 as also on a decision of the Full Bench of this court in Sanjeet
Singh v. High Court of Delhi & Another, decided on 12.12.2011 in WP(C)
1435/2011.
29. In Rakhi Ray (supra), the Supreme Court, inter alia, held as under:-
"9. It is a settled legal proposition that vacancies cannot be
filled up over and above the number of vacancies advertised as
"the recruitment of the candidates in excess of the notified
vacancies is a denial and deprivation of the constitutional right
under Article 14 read with Article 16(1) of the Constitution", of
those persons who acquired eligibility for the post in question
in accordance with the statutory rules subsequent to the date of
notification of vacancies. Filling up the vacancies over the
notified vacancies is neither permissible nor desirable, for the
reason, that it amounts to "improper exercise of power and only
in a rare and exceptional circumstance and in emergent
situation, such a rule can be deviated from and such a deviation
is permissible only after adopting policy decision based on
some rationale", otherwise the exercise would be arbitrary.
Filling up of vacancies over the notified vacancies amounts to
filling up of future vacancies and thus, is not permissible in law.
(Vide Union of India v. Ishwar Singh Khatri & Ors. (1992)
Supp 3 SCC 84; Gujarat State Deputy Executive Engineers'
Assn. v. State of Gujarat Ors. (1994) Supp 2 SCC 591; State of
Bihar & Ors. v. The Secretariat Assistant Successful Examinees
Union 1986 & Ors: AIR 1994 SC 736; Prem Singh & Ors.
v. Haryana SEB & Ors.: (1996) 4 SCC 319; and Ashok
Kumar & Ors. v. Chairman, Banking Service Recruitment
Board & Ors: AIR 1996 SC 976."
xxxx xxxx xxxx xxxx xxxx
"13. In Mukul Saikia v. State of Assam [(2009) 1 SCC 386 :
(2009) 1 SCC (L&S) 186 : AIR 2009 SC 747] this Court dealt
with a similar issue and held that "if the requisition and
advertisement was only for 27 posts, the State cannot appoint
more than the number of posts advertised." The select list "got
exhausted when all the 27 posts were filled". Thereafter, the
candidates below the 27 appointed candidates have no right to
claim appointment to any vacancy in regard to which selection
was not held. The "currency of select list had expired as soon as
the number of posts advertised are filled up, therefore,
appointments beyond the number of posts advertised would
amount to filling up future vacancies" and said course is
impermissible in law."
"14. In view of above, the law can be summarised to the effect
that any appointment made beyond the number of vacancies
advertised is without jurisdiction, being violative of Articles 14
and 16(1) of the Constitution of India, thus, a nullity,
inexecutable and unenforceable in law. In case the vacancies
notified stand filled up, the process of selection comes to an
end. Waiting list, etc. cannot be used as a reservoir, to fill up
the vacancy which comes into existence after the issuance of
notification/advertisement. The unexhausted select list / waiting
list becomes meaningless and cannot be pressed in service any
more."
15. In the instant case, as 13 vacancies of the general
category had been advertised and filled up, the selection process
so far as the general category candidates is concerned, stood
exhausted and the unexhausted select list is meant only to be
consigned to record room."
30. In Sanjeet Singh (supra), a Full Bench of this court analysed the
matter in a different way as would be clear from the following
observations:-
"13. A word needs to be spoken here by us on the subject of
appointing candidates in excess of the vacancies notified.
Where the process of selection envisages a screening test
followed by a final test, all Service Rules provide that the
final selection would be from amongst five times the number
of vacancies to be filled up. For example, if 5 vacancies are
filled up the short listing has to be of 25 candidates. These 25
candidates who take the final exam would then be evaluated
and merit position settled as per marks obtained. The one who
gets the highest marks would be at serial No.1 and the one
next would be at serial No.2 and so on. If finally appointment
is given to 8 candidates, this would violate the Service Rule
which would require shortlisted candidates to be 40 in number
(8 x 5 = 40) who would be eligible to take the final exam.
Who knows, whether or not the next 15 candidates who found
themselves at Sl.No.26 to Sl.No.40 of the shortlist may have
got marks more than the candidates who were at merit
position 6 to 8 as per the merit list prepared by subjecting only
25 shortlisted candidates to the final examination. This is the
reason why it is impermissible to fill up posts in excess of the
number notified. ..."
It may be pertinent to point out that the special leave petition against the
said decision in Sanjeet Singh (supra) was dismissed by the Supreme
Court by its order dated 10.02.2012 passed in SLP (C) No.3727/2012.
31. It is in this context that Mr Datar submitted that the filling up of
vacancies over and above those advertised was not permissible. He also
submitted that, in any event, even if this court were to hold that the
respondent No.1 had calculated the vacancies incorrectly and / or wrongly
carried forward the backlog vacancies, the said vacancies would not
automatically be de-reserved and thus go in favour of the General category.
32. Finally, it was submitted by Mr Datar that the petitioners, merely
because their names appear in the list in order of merit, do not acquire any
indefeasible right of appointment.
33. In rejoinder, Ms Nitya Ramakrishnan submitted that there is an
urgency to appoint judicial officers and that filling up of judicial posts is an
imperative which has been recognized through decades and, therefore,
merely because the respondent No.1 did not force to fill up the carry
forward vacancies, is not an answer to the imperative requirements of
Section 36 of the said Act. She also submitted that the decisions in Rakhi
Ray (supra) and Sanjeet Singh (supra) are not applicable to the facts of the
present petitions, inasmuch as both Rakhi Ray (supra) and Sanjeet Singh
(supra) refer to situations where a past list is sought to be adjusted against
the future vacancies which were not in existence at the time of the
advertisement. She submitted that here the question is with regard to a
wrongful classification within the notified / advertised vacancies and the
failure to fill them up, which is an altogether different matter. Therefore,
according to her, the said decisions would not come in the way of the
petitioners. This is so because the present case relates only to vacancies
existing and advertised from the start and not to vacancies arising or
declared later on. She also submitted that Section 36 of the said Act, as
also the said O.M. dated 29.12.2005, contemplate the possibility from the
start that the carry over physically handicapped vacancies shall be filled up
by General category candidates if no suitable disabled candidate is found.
Therefore, according to her, there is no element of surprise or unfairness in
that process and on the contrary, where there is wrongful apportionment of
the quota within the notified vacancies, a direction can certainly be given to
appoint those who have wrongly been left out from the reckoning.
34. Having considered the arguments of the counsel for the parties at
length, we feel that the provisions of the said Act and, particularly Sections
33 and 36 thereof have to be read together. Section 33 makes it mandatory
for the appropriate Government to appoint in every establishment, such
percentage of vacancies, not less than 3%, for persons or class of persons
with disability of which 1% each is to 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. From
this, it is clear that a minimum percentage of vacancies has to be set apart
for persons with disabilities. That minimum is 3% of the vacancies and the
said 3% being distributed as 1% each for each of the three categories
mentioned above. It is abundantly clear that this reservation is only a floor.
It provides the minimum and not the upper limit. While it is the intent and
purport of the legislature that there could be more than 3% of the vacancies
reserved for persons with disability, a minimum of 3% has been made by
virtue of Section 33 of the said Act. This makes it clear that if there were
reservation of the posts in excess of 3%, the same could not ipso facto be
the subject matter of challenge. On the contrary, if the reservation was less
than 3%, it could be challenged as being violative of Section 33 of the said
Act. The intent and purport behind the said provision is to bring the
persons with disabilities into mainstream activities and to enable them to
contribute to society in general. The persons with disabilities are not to be
discarded from the society at large. They are useful and productive
members of society despite their disabilities and the purpose behind the Act
is to give them an equal opportunity to contribute to society so that they are
fully able to participate in national life. It is clear that the Act is meant for
the benefit of the disabled. Chapter VI of the Act specifically deals with
the employment and Sections 33 and 36 fall within that Chapter.
35. With this understanding of the provisions of Section 33 of the said
Act, the intendment behind Section 36 can be easily discerned. Section 36,
on a plain reading, may suggest that the word "shall", when it is used in the
expression-"employer shall fill up the vacancy by appointment of a person,
other than a person with disability"-is mandatory and is in imperative
terms. But, as we have seen from the various decisions which we have
referred to above, wherever the word "shall" is used in a provision, it does
not necessarily mean that it is mandatory. It may even mean that it is
directory. That has to be determined by looking at the context and by
looking at the purpose behind the legislation as also the provisions and the
intention of the legislature. When we read Section 36, keeping in mind the
salutary provisions of Section 33, it would become clear that there is a
possibility to read the said provision as, if, even in the second year, the
carried forward vacancies are not filled up by persons with disability or
even by interchange amongst the three categories of disabilities, then, it
would be open to the employer to fill up the vacancies by appointment of
persons other than persons with disability. It does not mean that the
employer has to fill up the vacancy by appointment of a person other than a
person with disability. We agree with the learned counsel for the
respondent No.1 that the said Act has been enacted for the benefit of the
persons with disabilities and not to prescribe rights of the persons without
disabilities. Section 36 does not grant any right in favour of a person who
does not have a disability.
36. There is another way to look at the provisions of Sections 33 and 36.
Under Section 33, the prescription is for reserving not less than 3% of the
vacancies for persons with disabilities. This means that more than 3% of
the vacancies can be reserved for persons with disabilities in any particular
recruitment year without bothering about the carry forward rule prescribed
in Section 36. Even if the respondent No.1 were to reserve the 5 seats,
which it did, by simply stating that it was in accord with Section 33 of the
said Act, being roughly 8.33% of the 60 vacancies, it would not be in
violation of Section 33 of the said Act. When such reservation could not be
challenged directly, how can it be challenged indirectly through the route of
Section 36, which only prescribes a mode of how to deal with the unfilled
vacancies ? It only enables the employer to fill up a carry forward vacancy,
if no suitable person with disability is available in the succeeding year, by
appointing a person other than a person with disability. It does not create
any right in favour of a person who does not have a disability.
37. We shall also examine the question from the angle as suggested in
Sanjeet Singh (supra). The syllabus for the competitive examination for
recruitment to the Delhi Judicial Service is provided in the appendix to the
Delhi Judicial Service Rules, 1970. Rule 15 of the said Rules stipulates
that the syllabus for the examination and fee payable shall be as detailed in
the Appendix to the said Rules. As per the syllabus contained in the said
Appendix, the Delhi Judicial Service Examination is to be held in two
successive stages: (i) The Delhi Judicial Service Preliminary Examination
(Objective type with 25% negative marking) for selection for the main
examination) and (ii) Delhi Judicial Service Main Examination (Written)
for selection of candidates for calling for viva-voce. The syllabus further
stipulates as under:-
"xxxx xxxx xxxx xxxx xxxx
The Preliminary Examination will be a screening test and will
consist of one paper of multiple objective type questions
carrying maximum of 200 marks. In the preliminary
examination questions on general knowledge and aptitude of
the candidate, candidate's power of expression, flair in English,
knowledge of objective type legal problems and their solutions
covering Constitution of India, Code of Civil Procedure, Code
of Criminal Procedure, Indian Penal Code, Contract Act,
Partnership Act, Principles governing Arbitration Law,
Evidence Act, Specific Relief Act and Limitation Act will be
included.
Minimum qualifying marks in the preliminary
examination shall be 60% for general and 55% for reserved
categories i.e. Scheduled Castes, Scheduled Tribes and
Physically Handicapped (Blind / Low Vision) (mobility not to
be restricted) / Orthopaedically. However, the number of
candidates to be admitted to the main examination (written) will
not be more than ten times the total number of vacancies of
each category advertised.
The marks obtained in the preliminary examination by
the candidates who are declared qualified for admission to the
Main Examination (Written) will not be counted for
determining their final order or merit.
xxxx xxxx xxxx xxxx xxxx"
(Underlining added)
38. From the above, it is clear that the number of candidates to be
admitted to the Main Examination (Written) cannot be more than 10 times
the total number of vacancies of "each category advertised". Insofar as the
present case is concerned, the position of vacancies advertised was as
under:-
Category No. of Remarks
posts
Physically 05 01 vacancy carried forward and
Handicapped advertised for the fifth time
(Blind / Low 01 vacancy carried forward and
Vision) advertised for the third time.
02 vacancy carried forward and
advertised for the second time.
01 vacancy being advertised for
the first time.
39. Ten times the number of General candidates were to be called for the
Main Examination and that prescribed the cut-off marks. It is also clear
that if the last point of cut-off included several persons, then all of them
would have to be called for the Main Examination and it is only in that way
that the number of persons called for the Main Examination could exceed
10 times the number of vacancies. In the present case, the number of
persons which ought to have been called for interview using the multiplier
of 10 based on the number of vacancies advertised would be as under:-
Category Number Multiplied Actual Number of
of posts by 10 candidates called for
the Main Examination
PH 5 50 Gen-6, SC-3
40. The number of persons called for the Main Examination belonging to
the General Category was 274 which was 4 in excess of the permissible 270
(using the multiplier of 10). This was because several persons had obtained
the same last cut-off mark. As regards the SC and ST candidates, the
numbers called for the main examination were far below the numbers that
could have been called using the multiplier of 10 because there were not
enough candidates in those categories. The same is the position with the
category of physically handicapped candidates. The present petitioners all
belong to the General category. All the petitioners, except Deepti had made
the cut-off and were included in the said figure of 274 persons. Insofar as
Deepti is concerned, she was placed at Rank No.278 and had not made the
cut-off, but by virtue of an interim order of this court, she was permitted to
take the main examination.
41. If the contentions of the petitioners are to be accepted, it would lead
to grave injustice. This is so because they want a diversion of four
vacancies reserved for the physically handicapped candidates to the
General category which would mean that the vacancies for the General
candidates would increase from 27 to 31. This, in turn, would entail that
the cut-off marks would have been lower inasmuch as 31 x 10 = 310
candidates belonging to the General category would have had to be called
for the Main Examination. By not doing so at the initial stage, 36
candidates in the list (excluding Deepti) would have had an opportunity to
participate in the Main Examination, but have been denied that chance. It
is quite possible that those 36 candidates could well have appeared in the
Main (Written) Examination and the viva-voce and might even have been
selected. A case in point is that of Deepti herself who did not make the
initial cut-off and was ranked 4th after the cut-off, but she participated, with
the aid of an interim order of this court, in the Main (Written) Examination
and did reasonably well so as to be ranked 32nd in the final order of merit,
just 5 positions away from the last successful candidate. Therefore,
following the Full Bench decision in Sanjeet Singh (supra), we cannot
permit the diversion of vacancies reserved for the physically handicapped
candidates to the General category as that would amount to grave injustice
to the persons who could have been in the reckoning as a larger number of
persons would have been entitled to be called for the Main (Written)
Examination.
42. Furthermore, the petitioners cannot be permitted to challenge the
very advertisement / notification specifying the number of vacancies in
each category under which they had participated without any demur. They
have only challenged the said notification / advertisement after they were
found to be unsuccessful. The petitioners in WP(C) 997/2011 were
unsuccessful after the interview stage and they have filed the writ petition
only thereafter. On the other hand, the petitioner (Deepti) in WP(C)
3251/2010 did not make the cut-off after the Preliminary Examination and
she filed the writ petition at that stage. All the petitioners have, therefore,
approached this court only after participating in the examination process at
one stage or the other. They, therefore, cannot, for this reason also,
challenge the same.
43. The learned counsel for the petitioner had sought to bring about a
distinction between the decisions of Rakhi Ray (supra) and Sanjeet Singh
(supra) and the present case. She had contended that while those decisions
referred to a situation where the appointments were sought to be beyond the
advertised vacancies, the present case relates only to the vacancies existing
and advertised from the start and not to vacancies arising or declared later
on. We do not agree with this submission. This is so because what had
been advertised were 27 General category vacancies. The suggestion of the
petitioners is that 4 positions, which were hitherto reserved for the
Physically Handicapped category, ought to be diverted to the General
category. This would essentially mean that the number of positions for the
General category would be 31 as against the advertised 27 vacancies. This
by itself would mean that the appointments to such 31 positions, if made,
would be beyond the advertised vacancies.
44. As regards the point that there was a wrongful apportionment of the
quota within the notified vacancies, we are of the view that if this was the
case, the petitioners ought to have challenged the notification /
advertisement at the outset. They did not do so. They participated in the
process and only on being unsuccessful, at different stages, they have filed
these petitions.
45. For all these reasons, the petitions have no merit. They are
dismissed. The parties are left to bear their own costs.
BADAR DURREZ AHMED, J
V.K. JAIN, J
February 22, 2013
dutt
