# UNION OF INDIA & ANR v. NATIONAL FEDERATION OF THE BLIND & ORS

- **Citation:** [2013] 9 S.C.R. 1023
- **Court:** Supreme Court of India
- **Decided:** 2013-10-08
- **Case number:** Civil Appeal No. 9096 of 2013
- **Bench:** P. Sathasivam, Ranjana Prakash Desai, RANJAN GOGOi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-anr-v-national-federation-of-the-blind-ors-29396
- **Pages:** 46

## Headnote

PERSONS
WITH
DISABILITIES
(EQUAL
A
B
OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL
C
PARTICIPATION) ACT, 1995:
s. 33 - Reservation of posts for persons with disabilities -
Held: Section 33 Jays down that every appropriate
Government has to appoint on a minimum of 3% vacancies
in an establishment, persons with disabilities, out of which 1%
D
each shall be reserved for (i) persons suffering from blindness
and low vision, (ii) persons suffering from hearing impairment
and (iii) persons suffering from locomotor or cerebral palsy -
- View of the High Court that computation of reservation must
be on the basis of total cadre strength is clearly e"oneous -
E
s.33 establishes the intention of legislature viz. reservation of
3% for persons with disability should have to be computed on
the basis of total vacancies in the strength of a cadre and not
just on the basis of the vacancies available in the identified
posts.
F
s. 33 - Reservation of posts for persons with disabilities -
Held: The Section does not distinguish the manner of
computation of reservation between Group A and B posts or
Group C and D posts respectively -- Computation of G
reservation for persons with disabilities has to be done 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" -- Accordingly, certain clauses in OM
1023
H
1024
SUPREME COURT REPORTS
[2013) 9 S.C.R.
A dated 29. 12. 2005, which are contrary to scheme of
reservation, are struck down and appropriate Government is
directed to issue new Office Memorandum(s) consistent with
the decision rendered by the Court - In order to ensure proper
implementation of reservation policy for disabled and to
B protect their rights, further directions given - Government of
India, Department of Personnel and training 0. M. dated
29. 12. 2005.
INTERPRETATION OF STATUTES:
C
Construing of a provision - Held: While interpreting any
provision of a statute the plain meaning has to be given effect
and if language is simple and unambiguous, there is no need
to traverse beyond the same.
Headings and marginal notes - Held: Heading of a
D Section or marginal note may be relied upon to clear any
doubt or ambiguity in the interpretation of the provision and
to discern the legislative intent - When the Section is clear
and unambiguous, there is no need to traverse beyond those
words -- Therefore, the headings or marginal notes cannot
E control the meaning of the body of the section.
SOCIAL JUSTICE:
Reservation in employment for persons with disabilities
F - Held: 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 - Therefore, bringing them in the society based on
G their capabilities is the need of the hour - State has 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 - Directions issued to
H
UNION OF INDIA & ANR. v. NATIONAL FEDERATION 1025
OF THE BLIND
ensure proper implementation of reservation policy for A
persons with disability and to protect their rights.
Respondent No. 1 filed a writ petition before the High
Court in public interest seeking implementation of s. 33
of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995
stating that the appellants failed to provide reservation_ to
B
the blind and low vision persons and they were virtually
excluded from the process of recruitment to the
Government posts as stipulated under the said Act. It was
asserted that despite statutory provisions and various
C
executive orders, discrimination against the persons with
disabili

## Text

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[2013] 9 S.C.R. 1023
UNION OF INDIA & ANR.
v.
NATIONAL FEDERATION OF THE BLIND & ORS.
(Civil Appeal No. 9096 of 2013)
OCTOBER 08, 2013
[P. SATHASIVAM, CJI, RANJANA PRAKASH DESAI
AND RANJAN GOGOi, JJ.]
PERSONS
WITH
DISABILITIES
(EQUAL
A
B
OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL
C
PARTICIPATION) ACT, 1995:
s. 33 - Reservation of posts for persons with disabilities -
Held: Section 33 Jays down that every appropriate
Government has to appoint on a minimum of 3% vacancies
in an establishment, persons with disabilities, out of which 1%
D
each shall be reserved for (i) persons suffering from blindness
and low vision, (ii) persons suffering from hearing impairment
and (iii) persons suffering from locomotor or cerebral palsy -
- View of the High Court that computation of reservation must
be on the basis of total cadre strength is clearly e"oneous -
E
s.33 establishes the intention of legislature viz. reservation of
3% for persons with disability should have to be computed on
the basis of total vacancies in the strength of a cadre and not
just on the basis of the vacancies available in the identified
posts.
F
s. 33 - Reservation of posts for persons with disabilities -
Held: The Section does not distinguish the manner of
computation of reservation between Group A and B posts or
Group C and D posts respectively -- Computation of G
reservation for persons with disabilities has to be done 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" -- Accordingly, certain clauses in OM
1023
H
1024
SUPREME COURT REPORTS
[2013) 9 S.C.R.
A dated 29. 12. 2005, which are contrary to scheme of
reservation, are struck down and appropriate Government is
directed to issue new Office Memorandum(s) consistent with
the decision rendered by the Court - In order to ensure proper
implementation of reservation policy for disabled and to
B protect their rights, further directions given - Government of
India, Department of Personnel and training 0. M. dated
29. 12. 2005.
INTERPRETATION OF STATUTES:
C
Construing of a provision - Held: While interpreting any
provision of a statute the plain meaning has to be given effect
and if language is simple and unambiguous, there is no need
to traverse beyond the same.
Headings and marginal notes - Held: Heading of a
D Section or marginal note may be relied upon to clear any
doubt or ambiguity in the interpretation of the provision and
to discern the legislative intent - When the Section is clear
and unambiguous, there is no need to traverse beyond those
words -- Therefore, the headings or marginal notes cannot
E control the meaning of the body of the section.
SOCIAL JUSTICE:
Reservation in employment for persons with disabilities
F - Held: 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 - Therefore, bringing them in the society based on
G their capabilities is the need of the hour - State has 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 - Directions issued to
H
UNION OF INDIA & ANR. v. NATIONAL FEDERATION 1025
OF THE BLIND
ensure proper implementation of reservation policy for A
persons with disability and to protect their rights.
Respondent No. 1 filed a writ petition before the High
Court in public interest seeking implementation of s. 33
of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995
stating that the appellants failed to provide reservation_ to
B
the blind and low vision persons and they were virtually
excluded from the process of recruitment to the
Government posts as stipulated under the said Act. It was
asserted that despite statutory provisions and various
C
executive orders, discrimination against the persons with
disabilities continued in filling up the vacancies in various
government departments. The stand of appellants was
that the Office Memorandum (OM) dated 29.12.2005,
issued by the Department of Personnel & Training, inter D
alia,
provided a system for ensuring proper
implementation of the provisions of the Act for the
persons with disabilities. The High Court disposed of the
petition directing the Union of India to modify the OM
dated 29.12.2005 so as to be consistent with the
E
provisions of s. 33 of the Act and issued several other
directions.
In the instant appeal, the issues for consideration
before the Court were: "(i) whether post base reservation
F
must be adhered to or vacancy reservation; and (ii)
whether the modus of computation of reservation on the
basis of total number of vacancies (both inclusive of
identified and unidentified) in the cadre strength would
uniformly apply to Group A, B, C and D or would it be
G
applicable only to Group C and D".
Disposing of the appeal, the Court
HELD: 1.1 Section 33 of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full
H
1026
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A Participation) Act, 1995 provides for reservation of posts
and s. 32 of the Act stipulates for identification of posts
which can be reserved for persons with disabilities. The
scope of identification comes into picture only at the time
of appointment of a person in the post identified for
B disabled persons and is not necessarily relevant at the
time of computing 3% reservation u/s 33 of the Act. In
succinct, it was held in Ravi Prakash Gupta that s. 32 of
the Act is not a precondition for computation of
reservation of 3% u/s 33 of the Act rather s. 32 is the
c following effect of s. 33. [para 22 and 29] [1050-E; 1054H; 1055-A]
D
Govt. of India through Secretary and Anr. v. Ravi Prakash
Gupta & Anr. 2010 (7) SCR 851 = (2010) 7 SCC 626 -
referred to.
1.2 There is a difference in computing reservation on
the basis of total cadre strength and on the basis of total
vacancies (both inclusive of identified and unidentified)
in the cadre strength. The view of the High Court, in the
E impugned judgment, that the computation of reservation
must be on the basis of total cadre strength is clearly
erroneous on the face of it. Apart from the reasoning of
this Court in Ravi Prakash Gupta, even a reading of s. 33
establishes vividly the intention of the legislature viz.,
F reservation of 3% for persons with disability has to be
computed on the basis of total vacancies in the strength
of a cadre and not just on the basis of the vacancies
available in the identified posts. There is no ambiguity in
the language of s.33. [para 26 and 30] [1051-E-H; 1052G A; 1055-B-C]
1.3 A perusal of s. 33 reveals that the 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
H than 3% for persons or class of persons with disability."
UNION OF INDIA & ANR. v. NATIONAL FEDERATION 1027
OF THE BLIND
This part mandates that every appropriate Government
A
shall appoint a minimum of 3% vacancies in its
establishments for persons with disabilities. Therefore, it
cannot be said that reservation in terms of s. 33 has to
be computed against identified posts only. [para 31)
[1055-D-F]
B
1.4 The second part of s.33 starts as," ... 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," which makes it clear that it C
deals with distribution of 3% posts in every establishment
among 3 categories of disabilities. The expression "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. Further, in the last portion
D
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
E
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
F
the first part itself and also to read the same to have any
relation with the computation of reservation is completely
misconceived. [para 32) [1055-F-H; 1056-A-E]
1.5 The third part of s.33 is the proviso which reads,
"Provided that the appropriate Government may, having
G
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
H
1028
SUPREME COURT REPORTS
[2013) 9 S.C.R.
A interpretation that the computation of reservation has to
be against the total number of vacancies in the cadre
strength and not against the identified posts. [para 33]
[1056-E-H; 1057-A-B]
1.6 Besides, s. 41 of the Act mandates the appropriate
8 Government to frame incentive schemes for employers
with a view to ensure that 5% of their work force is
composed of persons with disabilities. On a conjoint
reading of ss. 33 and 41, it is clear that while s. 33
provides for a minimum level of representation of 3% in
C the establishments of appropriate Government, the
legislature intended to ensure 5% of representation in the
entire work force both in public as well as private sector.
[para 34] [1057-8-C, E-F]
0
1.7 Moreover, ss. 38 and 39 of the Draft Rights of
Persons with Disabilities Bill, 2012 clarify all the
ambiguities raised in the instant appeal. The intention of
the legislature is clearly to reserve in every establishment
under the appropriate Government, not less than 3% of
the vacancies for the persons or class of persons with
E disability, of which 1% each shall be reserved for each
of the three categories of disability. [para 35) [1059-C-D]
1.8 The Act is a social legislation enacted for the
benefit of persons with disabilities and its provisions
F must be interpreted in order to fulfill its objective. Besides,
it is a settled rule of interpretation that if the language of
a statutory provision is unambiguous, it has to be
interpreted according to the plain meaning of the said
statutory provision. Court only interprets the law and
G cannot legislate it. It is the function of the Legislature to
amend, modify or repeal it, if deemed necessary. [para 36
and 44] [1059-E-F; 1064-C-D]
1.9 The heading of a Section or marginal note may
be relied upon to clear any doubt or ambiguity in the
H interpretation of the provision and to discern the
UNION OF INDIA & ANR. v. NATIONAL FEDERATION1029
OF THE BLIND
legislative intent. When the Section is clear and
A
unambiguous, there is no need to traverse beyond those
words. Therefore, the headings or marginal notes cannot
control the meaning of the body of the section. In the
instant case, s.33 of the 1995 Act is clear and
unambiguous. [para 45] [1064-D-F]
B
2.1 Section 33 of the 1995 Act does not distinguish
the manner of computation of reservation between Group
A and B posts or Group C and D posts respectively. As
such, one statutory provision cannot be interpreted and
applied differently for the same subject matter. [para 38]
C
[1061-A-B]
2.2 This Court holds that 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.,
0
"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 scheme of
reservation, as interpreted in the judgment, are struck
down and the appropriate Government is directed to
issue new Office Memorandum(s) consistent with the
decision rendered by this Court. [para 51] [1067-B-D]
E,
3. A perusal of Indra Sawhney would reveal that the
ceiling of 50% reservation applies only to reservation in
F
favour of other Backward classes under Art. 16(4) of the
Constitution of India whereas the reservation in favour of
persons with disabilities is horizontal, which ~s under
Art.16(1) of the Constitution. In fact, this Court in the said
pronouncement has used the example of 3% reservation ' ·
in favour of persons with disabilities while dealing with
G
the rule of 50% ceiling. Para 95 of the judgment clearly
brings out that after selection and appointmerit of
candidates under reservation for persons with disa.bilities
they will be placed in the respective rosters- c:>f reserved
category or open category respectively on the basis of
H
1030
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A the category to which they belong and, thus, the
rese_rvation for persons with disabilities per se has
nothing to do with the ceiling of 50%. and, therefore, Indra
Sawhney is not applicable with respect to the disabled
persons. It is also reiterated that the decision in R.K.
B Sabharwal is not applicable to the reservation for the
persons with disabilities because in the said case, the
point for consideration was with regard to the
implementation of the scheme of reservation for SC, ST
& OBC, which is vertical reservation, whereas reservation
c in favour of persons with disabilities is horizontal. [para
41, 52 and 53] [1062-A-D; 1067-D-F]
Indra Sawhney v. Union of India and Others 1992 (2)
Suppl. SCR 454 =AIR 1993 SC 477; and R. K. Sabharwal
and Others v. State of Punjab and Others 1995 (2) SCR 35 =
D (1995) 2 SCC 745 - held inapplicable.
4.1 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
E their disability comes in the way of their functioning
rather it is social and practical barriers that prevent them
from joining the workforce. Therefore, bringing them in
the society based on their capabilities is the need of the
hour. The Union of India, the State Governments as well
F 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
G enacted way back in 1995, the disabled people have
failed to get required benefit until today. [para 20, 49 and
50] [1050-A-B; 1066-F-G; 1067-A-B]
4.2 In order to ensure proper implementation of the
reservation policy for the persons with disability and to
H protect their rights, it is directed:
UNION OF INDIA & ANR. v. NATIONAL FEDERATION1031
OF THE BLIND
(i) The appellant shall issue an appropriate order
A
modifying the OM dated 29.12.2005 and the
subsequent OMs consistent with this Court's
judgment within three months.
(ii) The "appropriate Government" shall compute the
8
number of vacancies available in all the
"establishments" and further identify the posts for
disabled persons within a period of three months and
implement the same without default.
(iii) The appellants shall issue instructions to all the
C
departments/public sector undertakings/Government
companies declaring that non observance of the
scheme of reservation for persons with disabilities
should be considered as an act of non-obedience and
Nodal Officer in
department/public sector D
undertakings/Government companies, responsible for
the proper strict implementation of reservation for
person with disabilities, be departmentally proceeded
against for the default. [para 54] [1067-G-H; 1068-A-D]
Prakash Nath Khanna & Anr. v. Commissioner of E
Income Tax & Anr. 2004 (2) SCR 434 = (2004) 9 SCC 686 -
referred to.
Case Law Reference:
2010 (7) SCR 851
referred to
para 27
1992 (2) Suppl. SCR 454 held inapplicable· para 40
2004 (2) SCR 434
referred to
para 43
F
1995 (2) SCR 35
held inapplicable para 46
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9096 of 2013.
From the Judgment and Order dated 19.12.2008 of the
H
1032
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A High Court of Delhi at New Delhi in Writ Petition (Civil) No.
15828 of 2006.
Indira Jaising ASG, S.P. Singh, Rajeev Nanda, Kiran
Bhardwaj, B.V. Bairam Das, B. Krishna Prasad, Anindita
B Pujari, Sarad Kumar Singhania, R. Prabhakaran, G.S. Mani,
Shunu Chauhan, Rameshwar Prasad Goyal for the appearing
parties S.K. Rungta (In person).
The Judgment of the Court was delivered by
C
P. SATHASIVAM, CJI. 1. Leave granted.
2. This appeal is directed against the final judgment and
order dated 19.12.2008 passed by the High Court of Delhi at
New Delhi in Writ Petition (C) No. 15828 of 2006 wherein the
High Court interpreted Section 33 of the Persons with
D Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (in short 'the Act') and issued various
directions to be complied with by the appellants herein.
E
3. Brief facts:
(a) National Federation of the Blind-Respondent No. 1
herein is an apex organization and a society registered under
the Societies Registration Act, 1860, having its Head Office at
New Delhi and is working for the protection of the rights of the
F visually challenged.
(b) In the year 2006, Respondent No. 1 herein filed a writ
petition before the High Court in public interest seeking
implementation of Section 33 of the Act alleging that the
appellants herein have failed to provide reservation to the blind
G and low vision persons and they are virtually excluded from the
process of recruitment to the Government posts as stipulated
under the said Act.
(c) In the above backdrop, it is relevant to mention that way
H back in 1977, the erstwhile Ministry of Social Welfare,
UNION OF INDIA & ANR. v. NATIONAL FEDERATION 1033
OF THE BLIND [P. SATHASIVAM, CJI.]
Government of India, made reservation in favour of the following · A
three categories of disabled persons in Group C & D posts to
the extent of 1 per cent each for the (i) Blind; (ii) H~aring and
Speech Impairment; and (iii) persons suffering from locomotor
.,
disability. In the year 1986, the Department of Personnel &
Training (DoPT), directed all the departments to take into
B
account both identified and unidentified posts for working out
the total number of vacancies to be reserved for each of the
disabled categories. In spite of the above said executive order,
various government departments and public sector
undertakings did not give effect to the scheme of reservation c
which compelled Respondent No. 1 herein to organize a nation
wide agitation, as a result of which, an agreement was arrived
at between the parties on 27.08.1987 to undertake a Special
Recruitment Drive for clearing up the backlog of vacancies,
(d) On 07 .02.1996, the Persons with Disabilities (Equal
D
Opportunities, Protection of Rights and Full Participation) Act,
1995 was brought into force making reservation of at least 3
percent posts in all government establishments to the extent of
1 per cent each for the persons suffering from (i) blindness or
low vision; (ii) hearing impairment; and (iii) locomotor disability
E
or cerebral palsy. After enactment of the said Act, Union of India
issued various orders for ensuring proper implementation of the
provisions of the Act for the persons with disabilities.
(e) Respondent No. 1 herein, by filing the above said
F
petition before the High Court asserted that despite statutory
provisions and various executive orders, discrimination against
the persons with disabilities continued in filling up the vacancies
in various government departments whereas it. was contended
by the other side that the Office Memorandum (OM} ~ated G
29.12.2005, issued by the Department of Personnel & Trainjng,
inter alia provides a system for ensuring proper implementation
of the provisions of the Act for the persons with disabilities.
(f) Vide order dated 19.12.2008, the High Court'disposed
of the petition directing the Union of India to modify the OM
H
•'
1034
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A dated 29.12.2005 being inconsistent with the provisions of
Section 33 of the Act and issued several other directions.
B
(g) Being aggrieved of the above, the appellants have
preferred this appeal by way of special leave before this Court.
(h) Tamil Nadu Handicapped Federation Charitable Trust,
Smt S. Rajeswari and Association for Physically Challenged
People Ordnance Clothing Factory filed applications for
impleadment. Vide order dated 22.07.2011, this Court did not
allow them to implead but to act as intervenors in the
C proceedings.
4. Heard Ms. Indra Jaisingh, learned Additional Solicitor
General for the Union of India, Mr. S.K. Rungta, learned senior
counsel (R-1) appearing in person and Mr. R. Prabhakaran,
0
learned counsel for lntervenors.
Submissions:
5. Ms. Indra Jaisingh, learned Additional Solicitor General
for the Union of India, after taking us through various provisions
E of the Act and OM(s) issued by the Government of India
submitted that the impugned judgment of the High Court is
against the provisions of the Act. She further pointed out that
the finding of the High Court that in terms of Section 33 of the
Act, 3% reservation for the disabled persons has to be
F computed on the basis of total strength of the cadre, i.e., both
identified as well as unidentified posts is erroneous. In any
event, according to her, the direction of the High Court to work
out backlog vacancies for the disabled persons on the total
cadre strength in different establishments within one month from
G the date of the order is impractical and not executable. It is
further highlighted that according to Section 33 of the Act,
reservation to the persons with disabilities in an establishment
shall be 3% of the vacancies arising in the posts which are
identified for the persons with disabilities. The High Court, by
H the impugned judgment, disturbed the very basic system of the
UNION OF INDIA & ANR. v. NATIONAL FEDERATION 1035
OF THE BLIND [P. SATHASIVAM, CJI.]
reservation of posts for the persons with disabilities. She further
A
highlighted that the reservation for Group C and D posts is
being calculated on the basis of the vacancies in identified as
well as unidentified posts prior to the Act came into existence
and in view of the provisions of Section 72 of the Act, continued
in the same way, however, reservation for Group A and B posts
B
is being calculated on the basis of the vacancies for identified
posts as per the provisions of the Act.
6. On the other hand, Mr. S.K. Rungta, learned senior
counsel (R-1) appearing in person submitted that in terms of
the provisions of the Act, more particularly, Sections 32 and 33
C
of the Act, it is obligatory on the part of the Government
establishments to provide at least 3% reservation of posts in
the total cadre strength and not in the identified vacancies. He
further pointed out that though the Act was passed in 1995 since
then the provisions have not been strictly implemented. He
D
prayed for further time bound direction for implementation of
the same.
7. Mr. R. Prabhakaran, learned counsel for intervenors
reiterated the submissions made by Mr. S.K. Rungta.
E
· 8. We have perused all the relevant materials and
considered the rival submissions.
Relevant Provisions:
9. In order to answer the rival contentions, it is desirable
to quote the relevant provision of the Act. Sections 2(a), 2(i),
2(j) and 2(k) of the Act read as under:
"2(a) "appropriate Government" means,-
(i)
in relation to the Central Government or any
establishment wholly or substantially financed by
that Government, or a Cantonment Board
constituted under the Cantonment Act, 1924 (2 of
F
G
1924), the Central Government;
H
1036
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A
(ii)
in relation to a State Government or any
establishment wholly or substantially financed by
that Government or any local authority, other than a
Cantonment Board, the State Government;
B
(iii)
in respect of the Central Co-ordination Committee
and the Central Executive Committee, the Central
Government;
(iv)
in respect of the State Co-ordination Committee
and the State Executive Committee, the State
c
Government;
2(i) "Disability" means-
(i)
blindness;
D
(ii)
low vision;
(iii)
leprosy-cured;
(iv)
hearing impairment;
E
(v)
locomotor disability;
(vi)
mental retardation;
(vii) mental illness;
F
20) "employer'' means,-
(i)
in relation to a Government, the authority notified by
the Head of the Department in this behalf or where
no such authority is notified, the Head of the
G
Department; and
(ii)
in relation to an establishment, the Chief Executive
Officer of that establishment;
2(k) "establishment" means a corporation established by
H
or under a Central, Provincial or State Act, or an authority
UNION OF INDIA & ANR. v. NATIONAL FEDERATION 1037
OF THE BLIND [P. SATHASIVAM, CJI.]
or a body owned or controlled or aided by the Government
A
or a local authority or a Government company as defined
in section 617 of the Companies Act, 1956 (1 of 1956)
and includes Departments of a Government;"
10. Among the above definitions, we are more concerned
8
with the definition of "establishment" under Section 2(k) of the
Act, which is an exhaustive definition and covers (i) a
corporation established by or under a Central, Provincial or
State Act, or (ii) an authority or a body owned or controlled or
- aided by the Government or a local authority, or (iii) a
C
Government company as defined in Section 617 of the
Companies Act, 1956 and (iv) Departments of a Government.
11. Chapter VI of the Act deals with the employment of
persons with disabilities. The relevant Sections of the said
Chapter are as under:-
D
"32. Identification of posts which can be reserved for
persons with disabilities. - Appropriate Governments
shall-
(a) identify posts, in the establishments, which can
be reserved for the persons with disability;
(b) at periodical intervals not exceeding three
years, review the list of posts identified and up-date
the list taking into consideration the developments
in technology.
.
33. Reservation of Posts -
Every appropriate
E
F
Government shall appoint in every establishment such
percentage of vacancies not less than three per cent for
G
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;
H
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SUPREME COURT REPORTS
[2013] 9 S.C.R.
A
(iii) locomotor disability or cerebral palsy,
in the posts identified for each disability:
8
c
D
E
F
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.
36. Vacancies not filled up to be carried forward.-
Where in any recruitment year any vacancy under section
33, cannot be filled up due to non-availability of a suitable
person with disability or, for any other sufficient reason,
such vacancy shall be carried forward in the succeeding
recruitment year and if in the succeeding recruitment year
also suitable person with disability is not available, it may
first be filled by interchange among the three categories
and only when there is no person with disability available
for the post in that year, the employer shall fill up the
vacancy by appointment of a person, other than a person
with disability:
Provided that if the nature of vacancies in an
establishment is such that a given category of person
cannot be employed, the vacancies may be interchanged
among the three categories with the prior approval of the
appropriate Government."
12. In exercise of the powers conferred by sub-sections
(1} and (2) of Section 73 of the Act, the Central Government
G enacted the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Rules, 1996.
13. After enactment of the above Act, in order to
consolidate the existing instructions in line with the provisions
of the Act, on 29.12.2005, Government of India, Department of
H Personnel and Training, issued certain instructions by way of
UNION OF INDIA & ANR. v. NATIONAL FEDERATION 1039
OF THE BLIND [P. SATHASIVAM, CJI.]
an Office Memorandum (OM), with regard to the reservation for
A
the persons with disabilities (physically handicapped persons)
in posts and services. The said Office Memorandum
specifically states that it shall supersede all previous
instructions issued on the subject so far. Respondent No. 1
herein has commended various clauses of the OM dated
B
29.12.2005. The relevant clauses of the same are extracted
herein below:
"2. QUANTUM OF RESERVATION
(i) Three percent of the vacancies, in case of direct
C
recruitment to Group A, B, C and D posts shall be reserved
for persons with disabilities of which one per cent each
shall be reserved for persons suffering from (i) blindness
or low vision, {ii) hearing impairment and {iii) locomotor
disability or cerebral palsy in the posts identified for each
D
disability;
{ii) Three percent of the vacancies in case of promotion
to Group D, and Group C posts in which the element of
direct recruitment, if any, does not exceed 75%, shall be
reserved for persons with disabilities of which one per cent
each shall be reserved for persons suffering from {i)
blindness or low vision, {ii) hearing impairment and {iii)
locomotor disability or cerebral palsy in the posts identified
for each disability.
3. EXEMPTION FROM RESERVATION:
If. any Department/Ministry considers it necessary to
exempt any establishment partly or fully from the provisions
E
F
of reservation for persons with disabilities of which one
G
percent each shall be reserved for persons suffering from
{i) blindness or low vision, {ii) hearing impairment and {iii)
locomotor disability or cerebral palsy in the posts identified
for each disability, it may make a reference to the Ministry
of Social Justice and Employment giving full justification
H
1040
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A
for the proposal. The grant of exemption shall be
considered by an Inter-Departmental Committee set up by
the Ministry of Social Justice and Empowerment.
B
c
D
E
F
G
H
4. IDENTIFICATION OF JOBS/POSTS:
The Ministry of Social Justice and Empowerment have
identified the jobs/posts suitable to be held by persons with
disabilities and the physical requirement for all such jobs/
posts vide their notification no. 16-25/99.Nll dated
31.5.2001. The jobs/posts given in Annexure II of the said
notification as amended from time to time shall be used
to give effect to 3 per cent reservation to the persons with
disabilities. It may, however, be noted that:
(a) The nomenclature used for any job/post shall mean and
include nomenclature used for other comparable jobs/
posts having identical functions.
(b) The list of jobs/posts notified by the Ministry of Social
Justice & Empowerment is not exhaustive. The concerned
Ministries/Departments shall have the discretion to identify
jobs/posts in addition to the jobs/posts already identified
by the Ministry of Soqial Justice & Empowerment.
However, no Ministry/Department/Establishment shall
exclude any identified job/post from the purview of
reservation at its own discretion.
(c) If a job/post identified for persons with disabilities is
shifted from one group or grade to another group or grade
due to change in the pay-scale or otherwise, the job/post
shall remain identified.
13. COMPUTATION OF RESERVATION:
Reservation for persons with disabilities in case of Group
C and Group D posts shall be computed on the basis of
total number of vacancies occurring in all Group C or Group
D posts, as the case may be, in the establishment, although
UNION OF INDIA & ANR. v. NATIONAL FEDERATION1041
. OF THE BLIND [P. SATHASIVAM, CJI.]
the recruitment of the persons with disabilities would only
A
be in the posts identified suitable for them. The number of
vacancies to be reserved for the persons with disabilities
in case of direct recruitment to Group C posts in an
establishment shall be computed by taking into account the
total number of vacancies arising .in Group C posts for
B
being filled by direct recruitment in a recruitment year both
in the identified and non-identified posts under the
establishment. The same procedure shall apply for Group
D posts. Similarly, all vacancies in promotion quota shall
be taken into account while computing reservation in c
promotion in Group C and Group D posts. Since
reservation is li.mited to identified posts only and number
of vacancies reserved is computed on the basis of total
vacancies (in identified posts as well as unidentified posts),
it is possible that number of persons appointed by
0
reservation in an identified posts may exceed 3 percent.
14. Reservation for persons with disabilities in Group A
posts shall be computed on the basis of vacancies
occurring in direct recruitment quota in all the identified
Group A posts in the establishment. The same method of
E
computation applies for Group B posts.
15. EFFECTING RESERVATION - MAINTENANCE OF
ROSTERS:
(a) all establishments shall maintain separate 100 point
reservation roster registers in the format given in Annexure
F
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
G
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,
H
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SUPREME COURT REPORTS
[2013] 9 S.C.R.
A
comprising the following points :
B
c
D
E
F
G
H
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 up by a
disabled person or it is not possible to fill up that post by
the disabled for any other person, 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 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
UNION OF INDIA & ANR. v. NATIONAL FEDERATION 1043
OF THE BLIND [P. SATHASIVAM, CJI.]
carried into the next block.
(f) After all the 100 points of the roster are covered, a fresh
cycle of 100 points shall start.
A
(g) If the number of vacancies in a year is such as to cover
only one block or two, discretion as to which category of
B
the disabled should be accommodated first shall vest in
the head of the establishment, who shall decide on the
basis of the nature of the post, the level of representation
of the specific disabled category in the concerned grade/
post etc.
C
(h) A separate roster shall be maintained for Group C
posts filled by promotion and procedure as explained
above shall be followed for giving reservation to persons
with disabilities. Likewise two separate rosters shall be
D
maintained for Group D posts, one for the posts filled by
direct recruitment and another for posts filled by promotion.
(i) Reservation in Group A and Group B posts is
determined on the basis of vacancies in the identified
posts only. Separate rosters for Group A posts and Group
B posts in the establishment shall be maintained. In the
rosters maintained for Group A and Group B posts, all
vacancies of direct recruitment arising in identified posts
shall be entered and reservation shall be effected the same
way as explained above.
16. INTER SE EXCHANGE AND CARRY FORWARD
OF
RESERVATION
IN
CASE
OF
DIRECT
RECRUITMENT
E
F
(a) Reservation for each of the three categories of persons
G
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
H
A
B
c
D
E
F
G
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SUPREME COURT REPORTS
[2013) 9 S.C.R.
categories with the approval of the Ministry of Social
Justice and 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.
19. HORIZONTALITY OF RESERVATION FOR
PERSONS WITH DISABILITIES:
Reservation for backward classes of citizens (SCs, STs
H
and OBCs) is called vertical reservation and the
UNION OF INDIA & ANR. v. NATIONAL FEDERATION1045
OF THE BLIND [P.