Delhi High Court

Amrendra Kumar vs Registrar General, Delhi High ... on 23 May, 2014

Author: Sanjiv Khanna

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      WRIT PETITON (C)NO. 1819/2014

                                   Reserved on      : 20th May, 2014
%                                  Date of Decision: 23rd May, 2014


AMRENDRA KUMAR                                          ..... Petitioner
           Through                 Mr. Lalit Kumar Jha, Advocate.

                        versus


REGISTRAR GENERAL, DELHI HIGH COURT & ORS
                                            .....Respondents

Through Mr. Rajshekhar Rao and Ms. Zehra Khan, Advocates for respondent No.1.

Mr. A.P. Singh, Advocate for respondent No.3, UOI.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE G.P. MITTAL

SANJIV KHANNA, J:

On 18th February, 2014, an advertisement/recruitment

notification was issued for conducting Delhi Judicial Service

Examination, 2014 in respect of 80 vacancies [General-55, SC-08 (1

backlog) and ST-17 (15 backlog)]. A note to the said recruitment

notification reads:-

"Note: Out of the aforesaid 80 vacancies, 02 vacancies (backlog) are reserved for Physically Handicapped (Blind/Low Vision) (mobility not to be restricted) candidates."

2. On or about 18th March, 2014, the petitioner-Amrendra Kumar

filed the present writ petition praying for two specific directions; (i)

the respondents should grant age relaxation to persons with disability

in terms of O.M. dated 29th December, 2005; (ii) respondents should

provide 3% reservation to persons with disability against fresh

vacancies for which selection process had been initiated, apart from

the backlog vacancies.

3. By order dated 21st March, 2014, notice was issued to the

respondents to file counter affidavit on the aforesaid two aspects and

reference was made to the decision of the Supreme Court in Union

of India and Anr. v. National Federation of the Blind and Ors.

2013 (10) SCC 772.

4. In the counter affidavit filed on behalf of the respondent No.1,

Registrar General, High Court of Delhi, it is stated that Corrigendum

to the notice dated 18th February, 2014 has been issued, clearly

specifying that benefit of O.M. dated 29th December, 2005 issued by

the Ministry of Personnel, Public Grievances & Pension, Department

of Personnel & Training, Government of India would be applicable.

In other words, general category disabled candidates would be

entitled to age relaxation of up to 10 years and Schedule Caste and

Scheduled Tribe category disabled candidates would be entitled to

age relaxation of up to 15 years.

5. In view of the aforesaid steps taken by issue of corrigendum

advertisement dated 28th March, 2014, the first grievance raised by

the petitioner has been addressed. Learned counsel for the petitioner

is satisfied and, thus, no further orders or directions are required on

the first prayer.

6. The second aspect relates to 3% reservation for persons with

disability in the Delhi Judicial Service Examination, 2014. In order

to appreciate the controversy, the following facts may be noticed:-

(a) The total cadre strength of Delhi Judicial Service prior to 1 st

January, 2013 was 382 posts and post 1st January, 2013, the cadre

strength stands enhanced to 482 posts. Presently, 250 Judicial

Officers are working in the Delhi Judicial Service cadre and

recommendation for appointment of 02 selectees is pending

consideration with the Government. 8 Judicial Officers in Delhi

Judicial Service, out of the above figure of 250 have been selected on

the basis of reservation under Section 33 of the Persons with

Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995 (Act, for short). Recommendation for

appointment of one selectee under the 3% reservation quota is

pending consideration with the Government.

(b) In the counter affidavit, respondent No.1 has referred to the

judgment and order dated 23rd August, 2006 passed in W.P.(C)

9804/2006 titled Somdatt Sharma Vs. Registrar General, Delhi

High Court that benefit of reservation under 3% quota should be

granted to persons with orthopedic disability or Cerebral Palsy

having one arm, one leg, both legs affected as well as to visually

challenged and low vision candidates (mobility not to be restricted)

in view of the corrigendum dated 25th July, 2006 issued by the

Government of India, Ministry of Social Justice and Empowerment.

Consequent thereto, a five Judges‟ Committee of High Court vide

decision dated 9th March, 2007 on the administrative side

recommended implementation of the notification dated 31st May,

2001 read with corrigendum dated 25th July, 2006 in the Delhi

Judicial Service Examinations to be held in future. The said decision

has been implemented. Accordingly, 07 vacancies out of 37

vacancies advertised for Delhi Judicial Service Examination, 2007

were reserved for persons with disability (4 for Locomotor/Cerebral

Palsy and 3 for blind/low vision). The said reservation under 3%

quota was on the basis of then existing cadre strength of Delhi

Judicial Service of 220 posts. In October, 2008, 160 new posts and

in March, 2009, 2 more posts were sanctioned taking the cadre

strength to 382 posts, which effectively means that 11/12 posts were

required to be reserved for candidates with disability to fulfill the

mandate of Section 33 of the Act.

last examination conducted prior to the examination of 2014, 6

vacancies were reserved for persons with disability. This included 5

backlog vacancies for blind/low vision candidates and one fresh

vacancy for locomotor/cerebral palsy. Against these vacancies, 3

candidates were appointed (2 candidates of blind/low vision and 1

candidate with locomotor disability), leaving backlog of 3 vacancies

for blind/low vision candidates. Recommendation for filling up 1

vacancy in the said category is pending consideration of the

Government leaving two backlog vacancies for visually

challenged/low vision candidates. Accordingly, the note in the

advertisement for the Delhi Judicial Service Examination, 2014

quoted above states that 02 backlog vacancies are reserved for

Physically Handicapped (Blind/Low Vision) (mobility not to be restricted)

candidates.

(d) In the 80 vacancies now advertised, 16 vacancies are backlog

reserved vacancies. (01 vacancy for Scheduled Caste and 15 for Scheduled

Tribe). Thus, the Delhi Judicial Service Examination, 2014 is for

recruitment of 62 vacant posts after we exclude the backlog. 16 backlog

vacancies cannot be taken into consideration for computing 3% quota

under the Act as the backlog relates to the examination for which 3%

quota has already been applied.

7. The short question is; whether a specific direction should be issued

to the Delhi High Court to earmark and select candidates by applying 3%

quota under section 33 of the Act in the Delhi Judicial Service

Examination, 2014 ? The respondent No.1 in the counter affidavit has

stated that they are following 200 point roster and are at present in the

second cycle, at point 182. Out of the 62 fresh vacancies, 39 have arisen

due to promotion/resignation or dismissal of incumbents, who were not

appointed to the post reserved for persons with disability. Out of 23

remaining vacancies, in ordinary course as per the roster and the O.M.

dated 29th December, 2005, 1 post is required to be identified for persons

with disability (blind/low vision). The reserved post would fall in the

third block from point No.67 to point No.100. In terms of the O.M. dated

29th December, 2005, there is no mandate that point No.67 must be filled

by a person with disability. One vacancy in the block of point No.67 to

point No.100 can be filled up by a person with disability, later on and this

would ensure full representation/reservation as per the mandate of the Act.

Learned counsel for the respondent No.1 has drawn our attention to the

O.M. dated 3rd December, 2013 issued by the Government of India,

Ministry of Personnel, Public Grievances & Pension, Department of

Personnel & Training and paragraph 15 of the O.M. dated 29th

December, 2005 (supra) in support of his submission.

8. There appears to be a contradiction in the stand of respondent

No.1, as it is stated that they are at point 182 and at the same time

reference is made to third block from point No.67 to 100. However,

this aspect need not be examined further in view of the legal ratio

applicable and discussion below.

9. The relevant portion of paragraph 15 of the O.M. dated 29 th

December, 2005 reads as under:-

             "15.  EFFECTING RESERVATION                           -
             MAINTENANCE OF ROSTERS:

             (a)      All establishments shall maintain

separate 100 point reservation roster registers in the format given in Annexure II for determining / effecting reservation for the disabled - one each for Group 'A' posts filled by direct recruitment, Group 'B' posts filled by direct recruitment, Group 'C' posts filled by direct recruitment, Group 'C' posts filled by promotion, Group 'D' posts filled by direct

recruitment and Group 'D' posts filled by promotion.

(b) Each register shall have cycles of 100 points and each cycle of 100 points shall be divided into three blocks, comprising the following points: 1st Block - point No.1 to point No.33 2nd Block - point No. 34 to point No.66 3rd Block - point No.67 to point No.100

(c) Points 1, 34 and 67 of the roster shall be earmarked reserved for persons with disabilities - one point for each of the three categories of disabilities. The head of the establishment shall decide the categories of disabilities for which the points 1, 34 and 67 will be reserved keeping in view all relevant facts.

(d) All the vacancies in Group C posts falling in direct recruitment quota arising in the establishment shall be entered in the relevant roster register. If the post falling at point no. 1 is not identified for the disabled or the head of the establishment considers it desirable not to fill it up by a disabled person or it is not possible to fill up that post by the disabled for any other reason, one of the vacancies falling at any of the points from 2 to 33 shall be treated as reserved for the disabled and filled as such. Likewise a vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be filled by the disabled. The purpose of keeping points 1, 34 and 67 as reserved is to fill up the first available suitable vacancy from 1 to 33, first available suitable vacancy from 34 to 66 and first available suitable vacancy from 67 to 100 by persons with disabilities.

(e)There is a possibility that none of the vacancies from 1 to 33 is suitable for any category of the disabled. In that case two vacancies from 34 to 66 shall be filled as reserved for persons with disabilities. If the

vacancies from 34 to 66 are also not suitable for any category, three vacancies shall be filled as reserved from the third block containing points from 67 to 100. This means that if no vacancy can be reserved in a particular block, it shall be carried into the next block."

10. We have referred to sub-clause (a) to paragraph 15 of the

aforesaid memorandum as the position on the said aspect has been

elucidated and clarified in the O.M. dated 3rd December, 2013 and that

is not an issue before us. In any case, the said aspect is completely

covered by the decision of the Supreme Court in National Federation of

the Blind (supra) (see paragraph 12 below). No distinction can be made

in the manner of computation of reservation between Group A and B

posts or Group C and D posts. One provision/rule cannot be interpreted

and applied differently for the same subject matter.

11. We do not agree with the counsel for the respondent No.1 that

they are entitled to push and postpone and not fill up the post at point

No.67. The O.M. dated 29th December, 2005 does not permit shifting

at point No.1, 34 and 67 in the 100 point roster except for germane and

good reasons which are mentioned in sub-para (d) to paragraph 15. The

said reasons are not satisfied in the present case.

12. Moreover, the issue in question is squarely covered by the

decision of the Supreme Court in National Federation of the Blind

(supra). In the said judgment, the Supreme Court has in categorical

terms held that 3% reservation for persons with disability as per the

Section 33 of the Act has be computed on the basis of the total

vacancies in the cadre strength and not on the basis of the vacancies

available in the identified posts. Reference was made to the earlier

decision in Government of India though Secretary and Anr. Vs. Ravi

Prakash Gupta, (2010) 7 SCC 626 in which interdependence of

Sections 32 and 33 of the Act was explained observing that Section 33

was not dependent on identification of posts as was argued by the

Union of India. 3% reservation under Section 33 of the Act would

apply and has to be computed on the basis of vacancies in the strength

of the cadre and not just vacancies available in the identified posts.

13. In National Federation of the Blind (supra), an illustration has

been given how vacancies have to be filled. In an examination where

there are 100 vacancies of 100 posts in an establishment, 3% posts have

to be reserved for persons with disability i.e. 1% vacancies should be

reserved for each of the three categories. [see paragraph 37 of the

decision in National Federation of the Blind (supra)].

14. Contention of the Union of India that 3% reservation under the

Act would defeat and violate the 50% ceiling for reservation laid by the

Supreme Court in Indra Sawhney v. Union of India and Ors. AIR

1993 SC 477 was rejected after quoting paragraph 95 in Indra

Sawhney‟s case wherein it has been observed that reservation under

Article 16(4) etc. are vertical reservations, whereas reservations for the

handicapped under Article 16(1) are horizontal reservations which cut

across the vertical reservations-what is called inter-locking

reservations.

15. In National Federation of the Blind (supra) reference was made

to R.K. Sabharwal and Ors. v. State of Punjab and Ors (1995) 2 SCC

745 to draw distinction between the expressions „posts‟ and

„vacancies‟. The latter means unoccupied post or office, whereas the

former refers to appointment, job, office or employment. The cadre

strength is always measured by number of posts comprising the

category and consequently the percentage of reservation has to be

worked out in relation to number of posts, which form the cadre

strength. The concept of 'vacancy' has no relevance in operating the

percentage of reservation. However, in respect of persons with

disability as reservation in their case is horizontal and not vertical, it

was observed:-

"49. However, the decision in R.K.

Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481 : AIR 1995 SC

1371] is not applicable to the reservation for the persons with disabilities because in the abovesaid case, the point for consideration was with regard to the 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. We harmonise with the stand taken by the Union of India, the appellant herein in this regard. Besides, the judgment in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481 : AIR 1995 SC 1371] was pronounced before the date on which the Act came into force, as a consequence, the intent of the Act must be given priority over the decision in the abovesaid judgment. Thus, in unequivocal terms, the reservation policy stipulated in the Act is vacancy-based reservation."

XXXXXXXXX

54. We also reiterate that the decision in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481 : AIR 1995 SC 1371] is not applicable to the reservation for the persons with disabilities because in the abovesaid case, the point for consideration was with regard to the 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."

16. It was accordingly held as under:-

"52. 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) consistent with the decision rendered by this Court."

17. When we apply the aforesaid principles to the Delhi Judicial

Service Examination, 2014 which is to fill up 62 vacancies, it would

mean that there should be 3% reservation for persons with disability for

the vacant posts advertised as per the applicable statute i.e. Section 33

of the Persons with Disabilities (Equal Opportunities, Protection of

Rights and Full Participation) Act, 1995. In other words, two posts

have to be reserved under Section 33 of the Act in Delhi Judicial

Service Examination, 2014 in addition to backlog vacancies for visually

challenged/low vision candidates.

18. In view of the aforesaid discussion, we partly allow the writ

petition and direction is issued to earmark and specify two posts to be

filled up from the persons with disability as per Section 33 of the Act.