2013 (10) TMI 1385 - SC - Indian Laws

Supreme Court: 3% disability reservation must be vacancy-based, equally distributed among categories.

The Supreme Court affirmed that 3% reservation for persons with disabilities should be based on the total number of vacancies in the cadre strength, ... Interpretation of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32 - Held that:- the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz., “computing 3% reservation on total number of vacancies in the cadre strength” which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29.12.2005, which are contrary to the above reasoning are struck down and we direct the appropriate Government to issue new Office Memorandum(s) in consistent with the decision rendered by this Court. (i) We hereby direct the appellant herein to issue an appropriate order modifying the OM dated 29.12.2005 and the subsequent OMs consistent with this Court’s Order within three months from the date of passing of this judgment. (ii) We hereby direct the “appropriate Government” to compute the number of vacancies available in all the “establishments” and further identify the posts for disabled persons within a period of three months from today and implement the same without default. (iii) The appellant herein shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the 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 undertakings/Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default. Issues Involved:1. Interpretation of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.2. Computation of 3% reservation for persons with disabilities.3. Whether the reservation should be post-based or vacancy-based.4. Applicability of the 50% ceiling rule on reservations.5. Implementation of the reservation policy for persons with disabilities.Detailed Analysis:1. Interpretation of Section 33 of the Act:The High Court interpreted Section 33 of the Act and directed the Union of India to modify the Office Memorandum (OM) dated 29.12.2005 to align with the provisions of Section 33. The Supreme Court affirmed that Section 33 mandates a minimum of 3% reservation for persons with disabilities in every establishment, distributed equally among three categories: blindness or low vision, hearing impairment, and locomotor disability or cerebral palsy. The Court clarified that the reservation should be computed based on the total number of vacancies in the cadre strength, not just identified posts.2. Computation of 3% Reservation:The Union of India contended that reservations should be computed based on vacancies in identified posts only. However, the Court held that the reservation must be computed on the total number of vacancies in the cadre strength. The Court emphasized that the plain language of Section 33 supports this interpretation, ensuring that 3% of the total vacancies are reserved for persons with disabilities, distributed equally among the three categories of disabilities.3. Post-Based vs. Vacancy-Based Reservation:The High Court's decision to compute reservation based on the total cadre strength rather than identified vacancies was challenged. The Supreme Court clarified that the reservation policy under Section 33 is vacancy-based and not post-based. The Court noted that while the second part of Section 33 deals with the distribution of reserved posts among the three categories of disabilities, the first part mandates a minimum of 3% reservation in every establishment's total vacancies.4. Applicability of the 50% Ceiling Rule:The Union of India argued that computing reservation based on total vacancies would violate the 50% ceiling rule for reservations as established in Indra Sawhney vs. Union of India. The Court rejected this argument, stating that the 50% ceiling applies to vertical reservations (SC, ST, OBC) under Article 16(4) of the Constitution, whereas reservations for persons with disabilities are horizontal under Article 16(1). The Court reiterated that horizontal reservations cut across vertical reservations and do not affect the 50% ceiling.5. Implementation of the Reservation Policy:The Court emphasized the need for proper implementation of the reservation policy for persons with disabilities. It directed the Union of India to issue a new OM consistent with the Court's interpretation within three months. Additionally, the Court instructed the appropriate Government to compute the number of vacancies and identify posts for disabled persons within three months. The Court also mandated that non-observance of the reservation scheme should be treated as an act of non-obedience, with departmental proceedings against responsible officers.Conclusion:The Supreme Court upheld the High Court's interpretation that 3% reservation for persons with disabilities should be computed based on the total number of vacancies in the cadre strength. The Court clarified that this reservation is vacancy-based, not post-based, and does not violate the 50% ceiling rule for vertical reservations. The Court issued directions to ensure proper implementation of the reservation policy, emphasizing the constitutional and international obligations to protect the rights of disabled persons.