Delhi High Court
National Federaton Of The Blind vs Uoi & Ors. on 12 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) 15828/2006
NATIONAL FEDERATON OF THE BLIND ..... Petitioner
Through: Mr.S.K.Rungta, in person.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr.Sanjeev Narula, Adv. for UOI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
12.09.2014
: Ms.G.ROHINI, CHIEF JUSTICE
CM 14710/2014 (delay)
For the reasons stated in the application, delay in filing the Review
Application is condoned.
The application is disposed of.
Review Application No. 412/2014
1. The present application is filed seeking review of the order dated
17.07.2014 in C.M. No. 230/2014 in W.P.(C) No. 15828/2006.
2. The main petition was filed by way of Public Interest Litigation
assailing the alleged illegal action of the respondents in not giving
reservation to the blind and low vision candidates in accordance with
Section 33 of the Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 (for short 'Disabilities Act') in
all the recruitments beginning from 1996.
3. By the order under review, this Court disposed of CM No. 230/2014
observing/holding inter alia as under:
"37. We may at the outset point out that Para 14 as
it stood prior to modification by OM dated
03.12.2013 also provided for reservation in direct
recruitment quota in Group A and Group B posts
and the same has been reiterated in the modified
Para 14. So far as the computation is concerned,
Para 14 as modified by OM dated 03.12.2013 made
it clear that it should be on the basis of total number
of vacancies in the cadre instead of vacancies
occurring in the identified posts. The said
modification, according to us, is in tune with the
judgment of the Supreme Court wherein it was
declared that the computation shall be in case of
Group A, B, C & D posts in an identical manner and
that the same shall be on total number of vacancies
in the cadre strength. 38. However, the contention of
Shri S.K. Rungta is that the reservation ought not to
have been confined to the vacancies occurring in
direct recruitment quota, but the same shall be
extended even with regard to promotional and
deputation posts. It is contended by the learned
Senior Counsel that the cadre strength includes
direct recruitment posts as well as promotional and
deputation posts.
38. However, the contention of Shri S.K. Rungta
is that the reservation ought not to have been
confined to the vacancies occurring in direct
recruitment quota, but the same shall be extended
even with regard to promotional and deputation
posts. It is contended by the learned Senior
Counsel that the cadre strength includes direct
recruitment posts as well as promotional and
deputation posts.
39. As we could see, this issue was not raised either
before this Court or before the Supreme Court. The
only contention was that the computation of
reservation should not be confined to identified posts
and that the same should be on total number of
vacancies in the cadre strength and the same was
accepted by the Supreme Court. Having regard to
the fact that the abovementioned contention was
neither urged nor adjudicated either by this Court or
by the Supreme Court, it is not open to the petitioner
now to contend that the reservation ought to have
been extended even with regard to promotion and
deputation posts."
4. The present application is filed seeking to review/recall the said order
contending that though the issue relating to provision of reservation with
regard to promotional and deputation posts had already been considered and
adjudicated by a Division Bench of this Court in W.P.(C) No. 2821/2010
titled as MCD vs. Manoj Kumar by judgment dated 04.08.2010 and the
same was also affirmed by the Apex Court by judgment dated 10.12.2013 in
SLP(C) No. 9473/2011, this Court failed to notice the same and held
erroneously in para 39 of the order under review that it is not open to the
petitioner to contend that the reservation ought to have been extended even
with regard to promotion and deputation posts.
5. We have heard Shri S.K. Rungta, Sr. Advocate as well as the counsel
for the respondents.
6. We may at the outset point out that our observations in Para 39 of the
order under review were only with reference to the order dated 19.12.2008
passed by this Court in W.P.(C) No. 15828/2006 and the judgment of the
Apex Court dated 08.10.2013 in Civil Appeal No.9096/2013 titled Union of
India & Anr. Vs. National Federation of the Blind & Ors., reported as
(2013) 10 SCC 772. The fact that the issue relating to reservation in
promotion and deputation posts was not urged in the above said
proceedings, has not been disputed by Shri S.K. Rungta; however it is
contended that by virtue of the order of the Supreme Court dated
10.12.2013 in MCD v. Manoj Gupta, the issue relating to reservation in the
matter of promotion has been conclusively adjudicated.
7. As expressed above, in the order under review we were only referring
to the contentions urged in W.P.(C) No.15828/2006 and Civil Appeal
No.9096/2013 and therefore the observations made in Paras 38 and 39,
according to us, do not in any way amount to negativing the claim of the
petitioner for reservation in promotion and deputation posts.
8. However, to avoid any controversy on the issue, we make it clear that
the observations in para 39 of the order under review shall not in any
manner affect the right/claim of reservation with regard to promotions in
terms of Section 33 of the Disabilities Act.
9. The Review Application is accordingly disposed of.
CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J
SEPTEMBER 12, 2014
pk
P.S. - Before we signed the order, we have come across news reports dated
13th September, 2014 titled "Supreme Court clears 3% quotas for disabled, in
jobs, promotions".
On further enquiry, it was learnt that the Supreme Court on 12th September,
2014 itself dismissed in limine SLP (Civil) (CC) No.13344/2014 titled Union
of India vs. National Confederation for Development of Disabled which was
filed against the judgment of the Division Bench of the Bombay High Court
dated 04.12.2013 in PIL No.106/2010 (MANU/MH/2301/2013).
On a perusal of the judgment in PIL No.106/2010 dated 04.12.2013, it is found
that the Bombay High Court held that no distinction can be made between the
posts to be filled in by direct recruitment and by promotion and that the total
number of vacancies in the cadre strength would include the vacancies to be
filled in by nomination and vacancies to be filled in by promotion on the basis
of the following observation made by the Supreme Court in Civil Appeal
No.9096/2013 dated 08.10.2013 titled Union of India & Anr. Vs. National
Federation of the Blind and Ors. (i.e. the appeal arising from the matter before
us):
"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
December 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."
Needless to state, our order aforesaid is not intended to be in the way of the
said pronouncements.
CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J
