Reservation only for those who do not Qualify on Merit

All India Confederation of the Blind vs. Goverment of NCT of Delhi

Filed Under: Article 226 of the Constitution of India
Petitioner: All India Confederation Of The Blind
Respondent: Govt. of NCT of Delhi
Citation: 123 (2005) Delhi Law Times 244
Court: In the High Court of Delhi
Judge: S Ravindra Bhat

Facts

A Writ Petition was filed by the All India Confederation of the Blind asking that the provisions of the Persons With Disabilities Act be applied for appointments to the posts of principal in schools run by the Govt. of NCT of Delhi. There were 90 vacancies for the posts of principals in Govt. Schools out of which 3 were reserved for disabled persons in accordance with the provisions of the Act.
 
The practice being followed by the Delhi Government in filling up these vacancies was as follows:
If any disabled candidate also qualified on the basis of merit, then such a candidate used to be appointed in the reserved category instead of the general category. As a result the selection of disabled candidates was restricted to 3% of the posts even if more candidates qualified on merit. This practice of filling up vacancies by adjusting candidates who were disabled but also qualified on merit, against the reserved quota, was challenged in this petition.

Another grievance that was raised was regarding the applicability of a DOPT Circular dated 1.2.99 regarding Age Concessions to SC/ST/OBC/Physically Handicapped Persons.

It was contended by the Delhi Govt. that the circular would be applicable only in the case of Grade A posts to be filled through open competitive examination. Since the post of a principal, although a Grade A post, was not filled through open competitive examination, the Delhi Govt. contended that the circular would not be applicable in this case.

Observations by the Court

The Court held that the practice followed by the Delhi Govt. in adjusting disabled candidates who qualified on merit, against the vacancies reserved for the physically disabled, was illegal and contrary to the objective of the Act.

The Court observed that this practice had the effect of limiting the representation of disabled persons to 3% of the posts even if more than that number qualified on merit. The Court observed that following this practice could result in a situation where disabled candidates would be better off without a quota since then there would have been no limitation or ceiling on their representation.

The Court thus held that while preparing the select list, disabled candidates who qualified on merit should be treated as general category and should not be included in the 3% reserved quota.

In regards to the applicability of the DOPT circular the Court held that the Circular provided for age relaxation of 10 years in the case of a Grade A posts to be filled through competitive examination and in other cases for 5 years.

Cases Referred:

  • Article 226 of the Constitution of India
  • Article 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

Sections Referred:

  • RK Sabharwal and Ors vs. State of Punjab and Ors; JT 1995 (2) SC 351
  • Madan Singh Shekhawat vs. Union of India; 1996 (6) SCC 459
  • Deepal Girishbhai Soni vs. United India Insurance Co. Ltd; IV (2004) SLT 860 = 2004 (5) SCC 385
  • Babu Parasakaikadi vs. Babu; VII (2003) SLT 614 = I (2004) CLT 5 (SC) = 2004 (1) SCC 681

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Government of National Capital Territory of Delhi and Ors vs. All India Confederation of the Blind

Filed under: Section 33 of the Persons with Disabilities Act Article 46 of the Constitution of India Societies Registration Act
Appellants: Government of National Capital Territory of Delhi and Ors
Respondent: All India Confederation of the Blind
Citation: LPA 2042, 2043 and 2044/2005 Decided on 22.12.2005
Court: In the High Court of Delhi
Judges: Markandeya Katju & Madan B. Lokur

Facts

All India Confederation of the Blind (Confederation for short), a self help organization of blind persons stated that Union Public Service Commission (UPSC) had published an advertisement in the ‘employment news’ for 90 posts with reservation of certain number of seats for SC and OBC categories. The Confederation had filed a petition challenging the said advertisement on grounds that there was no reservation made for the disabled whereby violating the mandate under Section 33 of the Persons with Disabilities Act.

It was also stated that the post of Principal (one of the posts in the advertisement) is in the list identified by the Ministry of Social Justice and Empowerment, Government of India in the year 1999 in accordance with the requirements of the Act. In the petition, the Confederation had asked for the issuance of a (corrigendum) revised advertisement in accordance with the law and to fill all the backlog vacancies of visually handicapped persons through a special recruitment drive within six months.

Further, it was prayed that if a visually handicapped candidate passed the examination/recruitment test with such high marks that he/she could qualify even in the general category, then he should be appointed in the general category only and not against one of the reserved seats. Instead, the reserved seat should be given to another visually handicapped applicant.

The Government of National Capital Territory of Delhi filed a counter affidavit and found that the Ministry of Social Justice had identified posts for School Principal, Vice Principal and Head Master/Head Mistress also as the posts, which could be filled by physically handicapped persons. The affidavit also stated that no vacancies of Principals had been filled up and the vacancies were first advertised for 90 posts on the basis of the requisition sent by the department.

Further, it also mentioned that as per the order of the Chief Commissioner for Disabilities, the Confederation had made a representation to the UPSC to ensure 3% reservation for the persons with disability in the direct recruitment of Principals. The UPSC in response issued a corrigendum in its advertisement and extended the date of receipt of the applications from eligible persons with disability residing in remote areas. Further, the department had taken a decision to reserve three posts out of 90 posts for disabled people.

Observations of the Court

After going through the counter affidavit, the Court held that the Confederation had no reason for a grievance against UPSC since three percent posts had now been reserved for the disabled people. The Court then proceeded to consider the point that if a visually impaired person passes a test on his own merit as a general category candidate, then he should not be treated as a physically handicapped person and his appointment should not be against the reserved quota and held that it agreed on that principle. Further, the Court directed that any physically handicapped candidate who qualified on high merit wherein he did not require reservation, his appointment would not be made against the handicapped person’s quota, but he would be treated in the general category and the reserved seats of handicapped persons would be calculated excluding him, and would be filled up accordingly.

Sections Referred:

  • Section 33 of the Persons with Disabilities Act
  • Article 46 of the Constitution of India

Cases Referred:

  • PGI Medical Education and Research vs. K.L. Narasimham (1997) 6 SCC 283

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