Indrajeet Kumar Mahato Vs the Govt of Assam and 2 Ors.

Heard Mr. D. Gogoi, the learned counsel appearing on behalf of the Petitioner. Mr. M. Chetia, the learned Government Advocate appears on behalf of the Respondent No.1 and Mr. H. K. Das, the learned Senior Counsel as well as the Standing Counsel of the Gauhati High Court assisted by Mr. N. K. Sarmah appears on behalf of the Respondent Nos.2 & 3.

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The Petitioner who is a person with locomotor disability, and more specifically, OL - one leg affected (Left) is aggrieved by the non-inclusion of the reservation in terms with the Persons with

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Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in the advertisement dated 07.09.2015, and therefore, has challenged the said advertisement and the consequential selection carried thereupon.

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The materials on record show that an advertisement was issued on 07.09.2015 for filling up of 397 posts of Computer Typist for the subordinate judiciary of Assam. In the advertisement though there is age relaxation provided to Persons with Disabilities, but the said advertisement did not specifically mention that there was a reservation for Persons with Disabilities. Be that as it may, the Petitioner submitted his application by taking note of the advertisement which categorically mentioned that the reservation of the posts for different categories would be as per Rules.

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The Petitioner upon applying was issued an acknowledgment card. The said acknowledgment card has been enclosed as Annexure-VI to the writ petition. A perusal of the acknowledgment card does not show that the candidature of the Petitioner was under any reservation.

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Be that as it may, the Petitioner participated in both the written test as well as skill test. However, the Petitioner was surprised to learn upon the Select List being published that there

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was no persons selected belonging to Persons with Disabilities. The vertical reservations were provided for OBC, SC, ST(P) candidates however no person was selected on the basis of horizontal reservation which included reservation for persons with disability. Being aggrieved, the Petitioner therefore approached this Court by filing the present writ petition.

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This Court vide the order dated 08.11.2017 issued notice. The learned Coordinate Bench of this Court was duly informed at the time of issuing notice that out of 51 posts advertised for the Kamrup (Metro) District Judiciary, only 50 numbers of appointments were made and one post slated for the MACT Court was kept vacant on account of lack of infrastructural facilities. The learned Coordinate Bench of this Court while issuing notice directed the Respondent Nos.2 & 3 that if the said Respondents intended to make any appointment to the 51^st advertised post, an exercise be made to arrive at a conclusion as to whether the said post ought to have been reserved for the physically challenged persons under the Act of 1995.

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This Court has also taken note of the affidavit filed by the Respondent Nos.2 & 3 in the instant proceedings wherein it was mentioned that the Petitioner lacked merit qua the unreserved category candidates, and as such, the Petitioner could not have

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been selected. It was also mentioned that the question of the Petitioner having a grievance for not being selected as a PwD candidate did not arise in as much as there was no reservation for PwD candidate in the establishment of Kamrup (Metro).

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Mr. H. K. Das, the learned Standing Counsel for the Gauhati High Court during the course of hearing submitted that till date, the 51^st post is yet to be filled up. The learned Senior Counsel submitted that at the time of the advertisement, there was a requirement of identification of the post which can be reserved for the PwD and the said identification being not carried out prior to the advertisement, there was no reservation for the PwD. In that regard, the learned Senior Counsel for the Respondent Nos.2 & 3 had referred to a judgment of the learned Coordinate Bench in the case of the Md. Nekib Hussain vs. the Gauhati High Court and Others, reported in 2018 SCC Online Gau 188 and submitted that as no identification was carried out, the Petitioner cannot have a right to be selected under the PwD quota.

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This Court had duly heard the learned counsels appearing on behalf of the parties and has perused the materials on record. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, ‘the Act of 1995’) was enacted pursuant to the Meeting held to launch the

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Asian and Pacific Decade of Disabled Persons, 1993-2002 convened by the Economic and Social Commission for Asia and Pacific region held at Beijing on 1^st to 5^th December, 1992. In the said meeting, a proclamation was adopted on full participation and equality of people with disabilities in Asia and Pacific region and India was a signatory to the said Proclamation.

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The Statement of Objects and Reasons of the Act of 1995 specifically provided the reasons as to why the said Act of 1995 was enacted. They were:-

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(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;

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(ii) to create barrier-free environment for persons with disabilities;

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(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits vis-à-vis non-disabled persons;

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(iv) to counteract any situation of abuse and exploitation of persons with disabilities;

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(v) to lay down a strategy for comprehensive development of programmes and services and equalization of

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opportunities for persons with disabilities; and

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(vi) to make special provisions of integration of persons with disabilities into the social mainstream.

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A three Judges Bench of the Supreme Court in the case of Union of India and Another vs. National Federation of Blind and Others , reported in (2013) 10 SCC 772 explained the background and objective of the Act of 1995. Paragraph Nos. 23 & 24 of the said judgment being relevant is reproduced herein under:-

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“23 . India as a welfare State is committed to promote overall development of its citizens including those who are differently abled in order to enable them to lead a life of dignity, equality, freedom and justice as mandated by the Constitution of India. The roots of statutory provisions for ensuring equality and equalisation of opportunities to the differently abled citizens in our country could be traced in Part III and Part IV of the Constitution. For the persons with disabilities, the changing world offers more new opportunities owing to technological advancement, however, the actual limitation surfaces only when they are not provided with equal opportunities. Therefore, bringing them in the society based on their capabilities is the need of the hour.

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Although, the Disability Rights Movement in India commenced way back in 1977, of which Respondent 1 herein was an active participant, it acquired the requisite sanction only at the

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launch of the Asian and Pacific Decade of Disabled Persons in 1993–2002, which gave a definite boost to the movement. The main need that emerged from the meet was for a comprehensive legislation to protect the rights of persons with disabilities. In this light, the crucial legislation was enacted in 1995 viz. the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which empowers persons with disabilities and ensures protection of their rights. The Act, in addition to its other prospects, also seeks for better employment opportunities to persons with disabilities by way of reservation of posts and establishment of a special employment exchange for them. For the same, Section 32 of the Act stipulates for identification of posts which can be reserved for persons with disabilities. Section 33 provides for reservation of posts and Section 36 thereof provides that in case a vacancy is not filled up due to non-availability of a suitable person with disability, in any recruitment year such vacancy is to be carried forward in the succeeding recruitment year. The difference of opinion between the appellants and the respondents arises on the point of interpretation of these sections.”

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The Supreme Court in the said judgment dealt a very important aspect which touches on the present lis. The question which the Supreme Court decided amongst others was as to whether the reservation provided for the disabled persons under Section 33 of the Act of 1995 was dependent upon the

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identification of post as stipulated by Section 32 of the Act of 1995. The Supreme Court categorically observed that identification comes into the picture only at the time of appointment of a person in the post identified for the disabled persons and is not necessarily relevant at the time of computing 3% reservation under Section 33 of the Act of 1995. The Supreme Court further explained the scope and ambit of Section 33 of the Act of 1995 and observed that the legislature never intended to confer an arbitrary power for exemption for persons with disabilities to be exercised by the appropriate Government when the computation was intended to be made against the identified post. Paragraph Nos.31, 32, 33, 33.1, 33.2 and 33.3 being relevant are quoted herein under:-

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“31. In the light of the above pronouncement, it is clear that the scope of identification comes into picture only at the time of appointment of a person in the post identified for disabled persons and is not necessarily relevant at the time of computing 3% reservation under Section 33 of the Act. In succinct, it was held in Ravi Prakash Gupta that Section 32 of the Act is not a precondition for computation of reservation of 3% under Section 33 of the Act rather Section 32 is the following effect of Section 33.

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32 . Apart from the reasoning of this Court in Ravi Prakash Gupta, even a reading of Section 33, at the outset, establishes vividly the intention of the legislature viz. reservation of 3% for differently

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abled persons 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. There is no ambiguity in the language of Section 33 and from the construction of the said statutory provision only one meaning is possible.

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A perusal of Section 33 of the Act reveals that this section has been divided into three parts:

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33.1 . The first part is:

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“ 33. Reservation of posts .—Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability….”

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It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the section.

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33.2. The second part of this section starts as follows:

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“… of which one per cent each shall be reserved for persons

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suffering from—

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(i) blindness or low vision;

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(ii) hearing impairment; and

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(iii) locomotor disability or cerebral palsy,

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in the posts identified for each disability:”

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From the above, it is clear that it deals with distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word “of which”. The word “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. In fact, the contention of the Union of India is sought to be justified by bringing the last portion of the second part of the section viz. “… identified posts” in this very first part which deals with the statutory obligation imposed upon the appropriate Government to “appoint not less than 3% vacancies for the persons or class of persons with disabilities”. In our considered view, it is not plausible in the light of established rules of interpretation. The minimum level of representation of persons with disabilities has been provided in this very first part and the second part deals with the distribution of this 3% among the three categories of disabilities. Further, in the last portion 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 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

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made against the vacancies in the identified posts. The attempt to read identified posts in the first part itself and also to read the same to have any relation with the computation of reservation is completely misconceived.

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33.3. The third part of the section is the proviso which reads thus:

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“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.”

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The proviso also justifies the abovesaid 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. Had the legislature intended to mandate for computation of reservation against the identified posts only, there was no need for inserting the proviso to section which empowers the appropriate Government to exempt any establishment either partly or fully from the purview of the section subject to such conditions contained in the notification to be issued in the Official Gazette in this behalf. Certainly, the legislature did not intend to give such arbitrary power for exemption from reservation for persons with disabilities to be exercised by the appropriate Government when the computation is intended to be made against the identified posts.”

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The Supreme Court further in the said judgment, i.e.

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National Federation of Blind (supra) illustrated with examples how the 100 vacancies of 100 posts in an establishment would reserve a minimum of 3% for persons with disabilities. This Court finds it relevant at this stage to observe that the judgment in the case of National Federation of Blind (supra) was delivered on 08.10.2013 much prior to the advertisement issued which is the subject matter of the present proceedings. The appointments were also made when the law was laid down by the Supreme Court with clarity in the case of National Federation of Blind (supra) was holding the field. Paragraph Nos. 37 and 38 of the said judgment being relevant are reproduced herein below:-

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“37. Admittedly, the Act is a social legislation enacted for the benefit of persons with disabilities and its provisions 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. In the present case, the plain and unambiguous meaning of Section 33 is that every appropriate Government has to appoint a minimum of 3% vacancies in an establishment out of which 1% each shall be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor disability or cerebral palsy.

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To illustrate, if there are 100 vacancies of 100 posts in an establishment, the establishment concerned will have to reserve a

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minimum of 3% for persons with disabilities out of which at least 1% has to be reserved separately for each of the following disabilities: persons suffering from blindness or low vision, persons suffering from hearing impairment and the persons suffering from locomotor disability or cerebral palsy. Appointment of 1 blind person against 1 vacancy reserved for him/her will be made against a vacancy in an identified post for instance, the post of peon, which is identified for him in Group D. Similarly, one hearing impaired will be appointed against one reserved vacancy for that category in the post of Store Attendant in Group D post. Likewise, one person suffering from locomotor disability or cerebral palsy will be appointed against the post of “Farash”, Group D post identified for that category of disability. It was argued on behalf of the Union of India with reference to the post of driver that since the said post is not suitable to be manned by a person suffering from blindness, the above interpretation of the section would be against the administrative exigencies. Such an argument is wholly misconceived. A given post may not be identified as suitable for one category of disability, the same could be identified as suitable for another category or categories of disability entitled to the benefit of reservation. In fact, the second part of the section has clarified this situation by providing that the number of vacancies equivalent to 1% for each of the aforementioned three categories will be filled up by the respective category by using vacancies in identified posts for each of them for the purposes of appointment.”

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Another judgment of the Supreme Court which was holding the field prior to the advertisement was the judgment rendered

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in the case of Justice Sunanda Bhandare Foundation vs. Union of India & Another, reported in (2014) 14 SCC 383 . This judgment of the Supreme Court was rendered on 26.03.2014. The Supreme Court in the said judgment directed the Central Government, the State Government as well as the Union Territories to implement the Act of 1995 in letter and spirit. Paragraph Nos.9, 10, 12 and 13 are being relevant are reproduced herein under:-

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Be that as it may, the beneficial provisions of the 1995 Act cannot be allowed to remain only on paper for years and thereby defeating the very purpose of such law and legislative policy. The Union, States, Union Territories and all those upon whom obligation has been cast under the 1995 Act have to effectively implement it. As a matter of fact, the role of the governments in the matter such as this has to be proactive. In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief-oriented and not obstructive or lethargic. A little concern for this class who are differently abled can do wonders in their life and help them stand on their own and not remain on mercy of others. A welfare State, that India is, must accord its best and special attention to a section of our society which comprises of differently abled citizens. This is true equality and effective conferment of equal opportunity.

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More than 18 years have passed since the 1995 Act came to be passed and yet we are confronted with the problem of

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implementation of the 1995 Act in its letter and spirit by the Union, States, Union Territories and other establishments to which it is made applicable.

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In our view, the 1995 Act has to be implemented in letter and spirit by the Central Government, State Governments and Union Territories without any delay, if not implemented so far. We, accordingly, direct the Central Government, State Governments and Union Territories to implement the provisions of the 1995 Act immediately and positively by the end of 2014.

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The Secretary, Ministry of Welfare, Government of India, the Chief Secretaries of the States, the Administrators of Union Territories, the Chief Commissioner of the Union of India and the Commissioners of the State Governments and the Union Territories shall ensure implementation of the 1995 Act in all respects including with regard to visually disabled persons within the above time.”

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This Court finds it relevant at this stage to observe that it is surprising that in spite of the clear directions passed by the Supreme Court in the judgments rendered in the cases of National Federation of Blind (supra) and Justice Sunanda Bhandare Foundation (supra) , the Gauhati High Court had taken a plea of not earmarking posts for Persons with Disabilities on the ground that there was no identification of the posts before the advertisement. This, in the opinion of this Court, was not only contrary to the law laid down by the Supreme Court in the aforementioned judgments, but also contrary to the mandate of

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the Act of 1995.

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This Court now finds it relevant to take note of another judgment of the Supreme Court in the case of State of Kerala and Others vs. Leesamma Joseph , reported in (2021) 9 SCC 208 wherein amongst various other questions taken up for consideration, the Supreme Court dealt with the issue as to whether the reservation under Section 33 of the Act of 1995 was dependent upon identification of posts as stipulated by Section 32 of the Act of 1995. In fact, the decision on this question clinches the dispute involved in the present lis. The Supreme Court in the said judgment held identification was a prerequisite for appointment, but appointment cannot be frustrated by refusing to comply with the prerequisite. Paragraph No.21 of the said judgement being relevant is reproduced herein under:-

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“21. On a plea of the learned Amicus Curiae, which we unhesitatingly accept, there can be little doubt that it was never the intention of the legislature that the provisions of Section 32 would be used as a tool to frustrate the benefits of reservation under Section 33. In fact, identification of posts for purposes of reservation had to take place immediately after the 1995 Act. A resistance to such reservation is obvious from the delaying tactics adopted by most of the Government authorities in truly implementing the intent. It thus shows that sometimes it is easier to bring a legislation into force but far more difficult to change the social mindset which would

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endeavour to find ways and means to defeat the intent of the Act enacted and Section 32 was a classic example of the same. In Union of India v. Ravi Prakash Gupta also, this Court mandated the identification of posts for purposes of reservation. Thus, what is required is identification of posts in every establishment until exempted under proviso to Section 33. No doubt the identification of the posts was a prerequisite to appointment, but then the appointment cannot be frustrated by refusing to comply with the prerequisite. This view was affirmed by a larger Bench of three Judges in Union of India v. National Federation of the Blind.” 17. The learned Senior Counsel for the Gauhati High Court had referred to the judgment of the Supreme Court in the case of Ajay Kumar Pandey vs. State of Uttar Pradesh & Ors. , reported in (2023) 16 SCC 82 . This judgment, in the opinion of this Court, is misplaced in as much as the issue involved therein was whether the learned High Court of Allahabad was justified in striking down the Government Order dated 07.05.1999. The Government Order dated 07.05.1999 was in connection with identifying the posts which can be manned by suitable disabled candidates under the Act of 1995. It is relevant to observe that the Supreme Court in the case of Ajay Kumar Pandey (supra) also reiterated the settled position of law as laid down by the three Judges Bench of the Supreme Court in the judgment rendered in National Federation for Blind (supra) .

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In the backdrop of the above, let this Court deal with the facts of the present case with specific reference to the law analysed herein above. From the law laid down by the Supreme Court two aspects are absolutely clear. First, a positive obligation had been cast upon the Centre/State/UT Governments and other Authorities for carrying out the identification of the posts in terms with Section 32 of the Act of 1995. The judgement in the case of Justice Sunanda Bhandare Foundation (supra) , the Supreme Court in no uncertain terms observed and directed that the provisions of the Act of 1995 had to be followed in letter and spirit by the Centre/State/UT Governments as well as all those upon whom obligations have been cast under the Act of 1995 immediately and positively by the end of 2014. The Gauhati High Court, in the opinion of this Court, therefore was mandated under law declared by the Supreme Court of India to carry out the implementation by the end of 2014.

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Secondly, the reservation as mandated under the Act of 1995 is required to be taken into account at the time of initiating the recruitment process by way of advertisement. The identification as required under Section 32 of the Act of 1995 is required at the time of appointment. The judgment of the Supreme Court in the case of National Federation of Blind (supra) stipulates as to how the reservation as against the vacancies in

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the establishment are required to be computed. The judgment of the Supreme Court in the case of Leesamma Joseph (supra) categorically observes that there is a positive obligation cast upon the Centre/State/UT Governments and other Authorities to carry out the identification and the said identification is only required for appointment and not computing the reservation.

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This Court further takes note of that taking into account the scope and ambit of the Act of 1995 and the reason why the Act of 1995 was enacted, a positive obligation was cast upon the Gauhati High Court in terms with Sections 32 and 33 to identify the posts wherein the Persons with Disabilities can be accommodated for appointment. In the advertisement though it is categorically mentioned that reservation would be as per the Rules, the Respondent Authorities in the present proceedings completely lost sight of the provisions of the Act of 1995 and the judgments of the Supreme Court referred to herein above.

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The resultant effect of the selection so carried out was contrary to the mandate of the Act of 1995 as well as the judgments passed by the Supreme Court. The rights of Persons with Disabilities were violated.

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Be that as it may, this Court cannot also turn a blind eye to

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the fact that already 396 persons have been appointed almost a decade ago. They are not parties to the present proceedings. Any interference at this stage would result in catastrophic consequences upon those persons who have been rendering services for all these years. Not only them but also their families would be affected. Under such circumstances, this Court is not inclined to interfere with the entire selection process.

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This Court also takes note of that one post in the subordinate judiciary of the district of the Kamrup (Metro) is still vacant. It is the opinion of this Court that the Respondent Authorities in the present proceedings should fill up the said post only reserving the same for the Persons with Disabilities. The said post be specifically advertised and identification be also carried out as to which category of Persons with Disabilities would be suitable for being granted the appointment to that post.

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Accordingly, the writ petition therefore stands disposed of with the following observations and directions:-

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(i) This Court is not inclined to set aside the advertisement as well as the selection taking into account that persons have been duly appointed pursuant to the advertisement and selection carried out and they have been rendering

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service for the last 9 years.

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(ii) As regards the one post vacant which is in the subordinate judiciary of the Kamrup (Metro) district, the Respondent Nos.2 & 3 are directed to carry out the identification as to which category of Persons with Disabilities can be appointed to the said post. Upon identifying, the said post be advertised and filled up in accordance with law.

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(iii) This Court duly takes note of that the Petitioner was 34 years of age as on the date of filing of the instant writ petition. As on date, the Petitioner would be around 43 years. Considering the above, this Court observes that in the circumstance, there is a requirement for age relaxation for filling up of the post so directed herein above to be advertised, the Petitioner be granted the age relaxation, if required.

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(iv) No costs.

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JUDGE

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Comparing Assistant

Indrajeet Kumar Mahato v. the Govt of Assam and 2 Ors.

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Indrajeet Kumar Mahato v. the Govt of Assam and 2 Ors.

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