* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21.03.2014
Pronounced on: 25.03.2014
+ W.P.(C) 983/2014, C.M. NOS.1973/2014 & 1974/2014
NISHANT. S. DIWAN …..Petitioner
Through: Sh. Jinendra Jain, Sh. Ajay Jain, Sh. B.N.
Gaur, Sh. R.P. Kaushal and Sh. Arun Jain,
Advocates.
Versus
HIGH COURT OF DELHI THROUGH REGISTRAR GENERAL AND
ANR. …..Respondents
Through: Sh. Rajiv Bansal and Sh. Anchit Sharma,
Advocates, for Resp. No.1.
Ms. Sonal. K. Singh and Sh. Anurag Gohil,
Advocates, for Resp. No.2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE R.V. EASWAR
MR. JUSTICE S. RAVINDRA BHAT
%
1. In these proceedings under Article 226 of the Constitution, a
direction is sought to the Delhi High Court Establishment, through its
Registrar General (hereafter called “the High Court Establishment”)
to reserve 3% of the vacancies for the disabled persons, in the Delhi
Higher Judicial Service (DHJS) Examination-2013 and consequently
reserve 3% of the posts of the total cadre strength of that Service
(hereafter referred to as “DHJS”) and consider his case as well in the
category of “disabled persons”. Consequently, direction to the High
Court Establishment to grant extra 30 minutes to the petitioner for
W.P.(C) 983/2014 Page 1
attempting the DHJS Examination, in respect of the directrecruitment
quota is also sought.
2. The petitioner has been practicing as an advocate since 1998;
he claims to be disabled in terms of The Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act,
1995 (hereafter referred to as the “Disabilities Act”). He suffers from
what is termed as “FOLLOW UP CASE OF HYDROCEPHALUS WITH
STUNT SURGERY WITH MYOSITIS OSSIFICANS HIP WITH ANKYLOSED
HIP”. This condition, the petitioner says, is described as “locomotor
disability” under the Disabilities Act which entitles him to benefits
under that law, especially Section 33. The petitioner contends that in
terms of an old 1977 Central Government notification, reservations
to the extent of 3% for persons with disabilities was provided for in
Group-C and Group-D posts and in Central Public Service
Undertakings. There was a continuous demand to extend that benefit
to Group-A and Group-B posts eventually leading to litigation under
Article 32 of the Constitution which culminated in the decision
reported as National Federation of Blind v. Union Public Service
Commission and Others AIR 1993 SC 1916. The Supreme Court, in its
judgement, directed the Central Government to consider the
feasibility of extending the reservations to Group-A and Group-B
posts. The petitioner relies upon Section 33 of the Disabilities Act to
urge that with its enactment, every appropriate government is
obliged to appoint in every establishment not less than 3% of the
W.P.(C) 983/2014 Page 2
vacancies, of the posts from amongst persons or class of persons with
disabilities such as blindness or blurred vision, hearing impairment or
locomotor disabilities or cerebral palsy.
3. The petitioner then refers to various developments, including
the judgment of a Single Judge in Ravi Kumar Arora v. Union of India
(UOI) and Anr. reported as (111) 2004 DLT 126 which was eventually
affirmed by the Supreme Court. The petitioner also refers to another
Division Bench ruling in All India Confederation of the Blind v. Union
of India (Ministry of Railways) (W.P.(C) 23132/2005) where a
direction to the Central Government to fill-up backlog of reserved
posts of disabled category of candidates, on the basis of total cadre
strength and not on the basis of vacancies, was given. It is submitted
that with the recent judgment of the Supreme Court, reported as
Union of India (UOI) and Anr. v. National Federation of the Blind and
Ors. 2013 (10) SCC 772, a wide nature of the rights, enuring to all
citizens with disabilities and the corresponding obligation to fill-up at
least 3% of the vacancies in respect of each service and post has been
mandated.
4. The petitioner complains that the advertisement dated
30.12.2013 issued by the High Court Establishment, calling for
applications and advertising 14 vacancies (4 set apart for SC/ST
candidates and 10 for general candidates) is contrary to the express
provisions of the Disabilities Act and the guidelines issued in that
W.P.(C) 983/2014 Page 3
regard. Emphasizing Section 33, the petitioner argues that since he
suffers from locomotor disability, the High Court Establishment was
under a duty to set-apart the appropriate number of posts having
regard to the total cadre strength of 224 posts in DHJS. It is argued
that the omission to make appropriate reservation in the proposed or
on-going recruitment process in fact amounts to discrimination
because persons with disabilities can compete for almost similar, if
not entirely identical posts, of Civil Judges and Magistrates, through a
Central Government circular of 18-01-2007.
5. It is also urged that the Central Government itself has
determined that the ITAT members would be subjected to the 3%
reservation under the Disabilities Act in the same 18.01.2007 circular.
These two categories, i.e. Civil Judges/Magistrates as well as the
members of ITAT perform similar functions which are of judicial
nature. In the circumstances, to exclude DHJS from the benefit of
reservation is both arbitrary and discriminatory. Besides, the circular
of 18.01.2007 relied upon by the High Court Establishment, there is
no rationale to support this differential treatment nor does the tenor
of the decision of the Court taken at that time, show that any
differentiation or unequal treatment was intended.
6. The relevant provisions of the Disabilities Act are as follows:
“2(a) Appropriate Government" means,-
W.P.(C) 983/2014 Page 4
(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, the
Central Government ;
(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;
(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
Government;
xxxxx xxxxx xxxxxx
2(i)"Disability" means-
i. blindness;
ii. low vision;
iii. leprosy-cured;
iv.hearing impairment;
v.loco motor disability;
vi. mental retardation;
vii. mental illness;
xxxxx xxxxx xxxxxx
2(j)"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
Department; and
ii. in relation to an establishment, the Chief Executive
Officer of that establishment;
W.P.(C) 983/2014 Page 5
xxxxx xxxxx xxxxxx
2(k) "establishment" means a corporation
established by or under a Central, Provincial or State
Act, or an authority or a body owned or controlled or
aided by the Government 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;
xxxxx xxxxx xxxxxx
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.
xxxxx xxxxx xxxxxx
33. Reservation of Posts - Every appropriate
Government shall appoint in every establishment such
percentage of vacancies not less than three per cent. for
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;
iii. locomotor disability or cerebral palsy, in the posts
identified for each disability:
W.P.(C) 983/2014 Page 6
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.
xxxxx xxxxx xxxxxx
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 parson 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.”
7. The High Court Establishment, in its reply and the arguments
advanced on its behalf in Court does not deny the essential facts,
such as publication of the advertisement calling for applications from
amongst the eligible candidates to fill-up the 14 vacancies or that 10
of them have been set apart for general candidates and 4 for SC/ST
candidates. Learned counsel for the High Court Establishment
W.P.(C) 983/2014 Page 7
however, argues that in terms of the Ministry of Social Justice and
Empowerment notification dated 18.01.2007, only Civil Judges and
Magistrates of the Delhi Judicial Service (DJS), covered by the Delhi
Judicial Service Rules and comprising of the cadre of Civil
Judges/Magistrates have been identified as posts who are subject to
the coverage of the Disabilities Act. Pointed reference is made to Sr.
No. 466 of the Central Government, Ministry of Social Justice and
Empowerment description in this regard which is as follows:
SI
No.
466
.
Designation
Physical
Requirement
s
Judges/Magistrat
es Subordinate in
Lower Judiciaries
Categories of
Disabled
suitable for
the jobs
S.SCT.C.R.W
OA.OL.BL.B.B
V
Nature of work
preferred
Deal with Civil and
Criminal cases by
adopting
established
procedure both
under Civil and
Criminal Codes.
Records evidence
and pass necessary
orders/judgments
8. Counsel for the respondent also refers to a previous Division
Bench decision of this Court dated 23.08.2006 in W.P.(C) 9840/2006
where the following order was made:
“the Government of India, Ministry of Social Justice and
Empowerment has issued a corrigendum vide Notification
dated 25
th
July, 2006 notifying that in the Gazette of India
(Extraordinary) Part I, Section 1, serial number 178 dated
the 30
th
June, 2001 containing the Ministry of Social Justice
and Empowerment notification number 16-25/99-I dated
W.P.(C) 983/2014 Page 8
Working
conditions/re
marks
The work is
mostly
performed
inside. The
work place is
well lighted.
The worker
usually works
alone.
the 31
st
May, 2001, in the List of Jobs Identified for being
held by persons with Orthopedic Disabilities or C.P. in Group
A, relating to categories of Disabled suitable for jobs, for the
letters and words “B.LV (mobility not to be restricted)”, the
letters “OA, OL, BL” shall be substituted.
In view of this corrigendum, the persons with orthopaedic
disability or C.P. having one arm (OA), one leg (OL), both
legs (BL) affected as well as blind persons and persons with
low vision (mobility not to be restricted) have been
recommended for appointment as Judges/Magistrates in
subordinate Judiciary. It is pertinent to state that this is a
recommendation of the Expert Committee constituted to
identify/review the posts persons with disabilities – in the
Ministries/Departments, Public Sector Undertakings.
The Government of NCT of Delhi shall forward the
recommendations of the Expert Committee as they stand
amended by the corrigendum dated 25
th
July, 2006 to the
Delhi High Court.
As and when such a communication is sent by the
Government of NCT of Delhi to the Delhi High Court, the
same would be processed by the Delhi High Court in
accordance with law.”
9. The respondent further states that consequential action
pursuant to the above directions was taken pursuant to the
recommendation of a five-Judge Committee made on 09.03.2007 in
respect of the DJS, comprising of Civil Judges and Magistrates. The
minutes of meeting recommended that:
“........3% of the vacancies shall be reserved for persons with
disabilities as required under Section 33 of “The Persons
with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995”. The Committee was of
W.P.(C) 983/2014 Page 9
the view that since the obligation to reserve 3% vacancies
arises from the provisions of Section 33 of the Act
aforementioned, there is no provision in the Rules
themselves. The reservation and appointment shall be
regulated by the statutory notification, if any, issued by the
Government of India. The Committee has in this regard
taken note of Notification No.16-25/99-NI-I dated
31.05.2001 as amended vide Corrigendum No.3914/2006/DD-III
dated 25.07.2006 issued by the Ministry of
Social Justice and Empowerment, Government of India, New
Delhi, identifying the posts of “Judges/Magistrates
Subordinate in Lower Judiciaries” as the jobs identified for
being held by persons with specified disabilities viz. BlindLow
Vision (mobility not to be restricted) OA – one Arm
Affected (right or left) OL – one leg affected (right or left),
BL (both legs affected but not arms).
The advertisement notice to be issued for future DJS
Examinations shall accordingly make a suitable provision
and invite applications from all such person as are eligible
for appointment against such vacancies.”
10. It is argued that in the absence of a specific determination
under Section 32, the petitioner cannot claim a right to be considered
as a disabled candidate nor seek that reservation should be given in
the cadre of DHJS. Counsel for the respondent also urges that since
the advertisement was issued, any interdiction by this Court at this
stage, given the fact that the examination is scheduled for
06.04.2014, would upset the entire timeline and delay the
recruitment process. It is argued that whilst there can be no quarrel
to the applicability of the Disabilities Act, yet as to what category of
posts requires to be covered by the enactment is a matter of
W.P.(C) 983/2014 Page 10
discretion best left to the High Court by virtue of Section 32. In the
present case, the exercise having been concluded on 09.03.2007 and
since in that decision, the reservations in the cadre of DHJS were not
recommended, it would be unfeasible to reserve any post for persons
with disabilities as that would involve a great deal of administrative
inconvenience.
11. The latest decision of the Supreme Court in National
Federation of the Blind (supra) considered the obligations of
employers, particularly those in the Central Government, State and
the public sector to comply with the provisions of the Disabilities Act.
The Court traced the history of the enactment as well as the
instructions issued from time to time by the Central Government to
consolidate and update the instructions. These were the Office
Memorandum dated 29.12.2005, 10.12.2008 etc. which were
analysed. The Court rejected the submission on behalf of the Union
of India (UOI) that the obligation to reserve the posts would arise
only after their identification. It was held that, “to accept such a
submission would amount to accepting the situation where the
provisions of Section 33 of the aforesaid Act would be kept deferred
indefinitely by bureaucratic inaction. Such a stand taken by the
petitioners before the High Court was rightly rejected.” The Court
then held that logically in terms of Section 32, posts had to be
identified for reservation for purposes of Section 33 but the exercise
had to be undertaken simultaneously with the coming into force of
W.P.(C) 983/2014 Page 11
the Act, to give meaning and effect to Section 33. The Court
pertinently noticed its previous decision in Govt. of India through
Secretary and Anr. v. Ravi Prakash Gupta and Anr. 2010 (7) SCC 626
that,
“16. It is only logical that, as provided in Section 32 of the
aforesaid Act, posts have to be identified for reservation for
the purposes of Section 33, but such identification was
meant to be simultaneously undertaken with the coming into
operation of the Act, to give effect to the provisions of
Section 33. The legislature never intended the provisions of
Section 32 of the Act to be used as a tool to deny the benefits
of Section 33 to these categories of disabled persons
indicated therein. Such a submission strikes at the
foundation of the provisions relating to the duty cast upon
the appropriate Government to make appointments in every
establishment (emphasis added).”
12. The Court in National Federation of the Blind (supra) then went
on to endorse the view that the extent of dependence – of
reservation, upon the identification exercise would be for “making
appointments and not for the purpose of making reservations”. The
judgment went on to hold as follows:
“30. Apart from the reasoning of this Court in Ravi
Prakash Gupta (supra), even a reading of Section 33, at the
outset, establishes vividly the intention of the legislature
viz., reservation of 3% for differently 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
W.P.(C) 983/2014 Page 12
construction of the said statutory provision only one
meaning is possible.
31. A perusal of Section 33 of the Act reveals that this
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 than
3% for persons or class of persons with disability." 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.
32. The second part of this section starts as follows:
"...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." 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
W.P.(C) 983/2014 Page 13
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 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.
XXXXXX XXXXXX XXXXXX
36. 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 or cerebral palsy.
37. To illustrate, if there are 100 vacancies of 100 posts
in an establishment, the concerned establishment will have
to reserve a 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
W.P.(C) 983/2014 Page 14
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 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.
XXXXXX XXXXXX XXXXXX
49. 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. As a result, many disabled people live in
poverty and in deplorable conditions. They are denied the
right to make a useful contribution to their own lives and to
the lives of their families and community.”
W.P.(C) 983/2014 Page 15
13. With the enactment of the Disabilities Act, every establishment
was placed under an obligation to effectuate its provisions, including
its mandate to reserve and fill at least 3% of the vacancies which
arose. This obligation is, given the nature of the mandate under
Section 33, non-derogable by its character. The decision in Ravi
Prakash Gupta, (supra) held this to be so, in as many terms:
“15…….… neither Section 32 nor Section 33 of the
aforesaid Act makes any distinction with regard to Groups
A, B, C and D posts. They only speak of identification and
reservation of posts for people with disabilities, though the
proviso to Section 33 does empower the appropriate
Government to exempt any establishment from the
provisions of the said section, having regard to the type of
work carried on in any department or establishment. No
such exemption has been pleaded or brought to our notice
on behalf of the petitioners.
16. It is only logical that, as provided in Section 32 of
the aforesaid Act, posts have to be identified for reservation
for the purposes of Section 33, but such identification was
meant to be simultaneously undertaken with the coming into
operation of the Act, to give effect to the provisions of
Section 33. The legislature never intended the provisions of
Section 32 of the Act to be used as a tool to deny the benefits
of Section 33 to these categories of disabled persons
indicated therein. Such a submission strikes at the
foundation of the provisions relating to the duty cast upon
the appropriate Government to make appointments in every
establishment…….
17. While it cannot be denied that unless posts are
identified for the purposes of Section 33 of the aforesaid
Act, no appointments from the reserved categories
contained therein can be made, and that to such extent the
provisions of Section 33 are dependent on Section 32 of the
W.P.(C) 983/2014 Page 16
Act, as submitted by the learned ASG, but the extent of such
dependence would be for the purpose of making
appointments and not for the purpose of making
reservation. In other words, reservation under Section 33 of
the Act is not dependent on identification, as urged on
behalf of the Union of India, though a duty has been cast
upon the appropriate Government to make appointments in
the number of posts reserved for the three categories
mentioned in Section 33 of the Act in respect of persons
suffering from the disabilities spelt out therein. In fact, a
situation has also been noticed where on account of nonavailability
of candidates some of the reserved posts could
remain vacant in a given year. For meeting such
eventualities, provision was made to carry forward such
vacancies for two years after which they would lapse. Since
in the instant case such a situation did not arise and posts
were not reserved under Section 33 of the Disabilities Act,
1995, the question of carrying forward of vacancies or lapse
thereof, does not arise.”
14. The enunciation of law by the Supreme Court is categorical
about the imperative nature of the Disabilities Act’s provisions vis-àvis
reservation of posts in various establishments. This Court
therefore, is bound to decide the issue before it within the framework
of the declaration of law in Ravi Prakash Gupta, (supra) and National
Federation of the Blind (supra) both pronouncements of three judge
Benches of the Supreme Court.
15. Precedential compulsion apart, there is another circumstance
which the Court has to consider. The respondents main argumentsupplementary
to the lack of identification of the post of District
Judge, is that the matter was put to the Committee of Judges which
took note of the 18-01-2007 circular of the Central Government and
W.P.(C) 983/2014 Page 17
decided that reservations in the DJS (as opposed to the DHJS) cadre
and posts were to be ensured. A careful look at that document, i.e the
minutes of meeting of 09-03-2007 shows that the Committee
considered the proposal in the background of whether to provide for
reservations in DJS. This is evident from the following observations in
its minutes:
“The reservation and appointment shall be regulated by the
statutory notification, if any, issued by the Government of
India. The Committee has in this regard taken note of
Notification No.16-25/99-NI-I dated 31.05.2001 as
amended vide Corrigendum No.39-14/2006/DD-III dated
25.07.2006 issued by the Ministry of Social Justice and
Empowerment, Government of India, New Delhi, identifying
the posts of “Judges/Magistrates Subordinate in Lower
Judiciaries” as the jobs identified for being held by persons
with specified disabilities…”
However, the Committee did not positively rule-out reservations in
DHJS. The operative direction was premised on the need to take a
decision on the recruitment for DJS vacancies.
16. The second reason why this Court feels compelled to reject the
respondent’s argument is that as between DJS officers (who are
Judges) and DHJS officers (who are also Judges certainly not less so)
there is and can be no difference for the purposes of reservation under
the Disabilities Act. The mere use of the word (“Magistrates”) in Sl.
No 466 in the circular of the Central Government was not meant to
limit the benefit of reservation under the Act to only the Civil Judges/
W.P.(C) 983/2014 Page 18
Magistrates cadre or posts. Both categories of holders of posts’
workload is fairly described as “Deal with Civil and Criminal cases by
adopting established procedure both under Civil and Criminal Codes.
Records evidence and pass necessary orders/judgments.” Likewise,
the notification (of the Central Government) goes on to mention in the
last column, i.e “working conditions/remarks” that work is performed
inside and the working conditions are well lighted. These descriptions
apply equally to those in the Delhi Higher Judicial Service, who also
exercise appellate jurisdiction over the decisions of DJS officers.
Furthermore, the circular of the Central Government also describes
Income Tax Appellate Tribunal members’ posts as those which are
subject to reservations under the Disabilities Act. The decision of the
Committee (of this Court) dated 09-03-2007 surely was not intended
to result in such discrimination.
17. The Supreme Court had perspicuously held that the doctrine of
classification, which can be legitimately used to examine complaints
of discrimination and violation of Article 14, itself cannot produce
inequality, through under-classification or undue emphasis as the basis
of drawing distinction when none exist. This aspect was emphasized
in Roop Chand Adlakha and Ors. v. Delhi Development Authority and
Ors., AIR 1989 SC 307:
“7………………………………The process of classification is
in itself productive of inequality and in that sense
antithetical of equality. The process would be
constitutionally valid if it recognises a pre-existing
inequality and acts in aid of amelioration of the effects of
W.P.(C) 983/2014 Page 19
such pre-existent inequality…………………………… The
process cannot merely blow-up or magnify in-substantial or
microscopic differences on merely meretricious or
plausible. The over-emphasis on the doctrine of
classification or any anxious and sustained attempts to
discover some basis for classification may gradually and
imperceptibly deprive the article of its precious content and
end in re-placing doctrine of equality by the doctrine of the
classification…………………….”
In The State of Gujarat & Anr v Shri Ambica Mills Ltd., Ahmedabad
& Anr. [(1974) 4 SCC 656], again, the Supreme Court dwelt on the
same aspect, in the following words:
"54. A reasonable classification is one which includes all
who are similarly situated and none who are not. The
question then is: what does the phrase "similarly situated"
mean? The answer to the question is that we must look
beyond the classification to the purpose of the law. A
reasonable classification is one which includes all persons
who are similarly situated with respect to the purpose of
the law. The purpose of a law may be either the
elimination of a public mischief or the achievement of
some positive public good.
55. A classification is under-inclusive when all who are
included in the class are tainted with the mischief but there
are others also tainted whom the classification does not
include. In other words, a classification is bad as underinclusive
when a State benefits or burdens persons in a
manner that furthers a legitimate purpose but does not
confer the same benefit or place the same burden on others
who are similarly situated. A classification is overinclusive
when it includes not only those who are similarly
situated with respect to the purpose but others who are not
so situated as well. In other words, this type of
W.P.(C) 983/2014 Page 20
classification imposes a burden upon a wider range of
individuals than are included in the class of those attended
with mischief at which the law aims. Herod ordering the
death of all male children born on a particular day
because one of them would some day bring about his
downfall employed such a classification.”
In one of the earlier cases, the Court had emphasized that when some
distinction is sought to be the basis of differentiation for the purpose
of classification, under Article 14, “the classification, however, must
be based on some real and substantial distinction bearing a just and
reasonable relation to the objects sought to be attained and cannot be
made arbitrarily and without any substantial basis..” (Ref. Dhirendra
Kumar Mandal v The Superintendent and Remembrancer of Legal
Affairs to the Govt. of West Bengal and Anr. AIR 1954 SC 424).
18. In the present case, there is no material to suggest that DHJS
officers perform duties and functions which are radically different
from those in DJS. Indeed, their positions answer to the description of
“Judges” of “Subordinate courts” (the latter being the expression used
by the Constitution itself). Other posts whose holders discharge
judicial functions such as members of ITAT too have been accorded
the benefit of disability reservations under the Act.
19. In these circumstances, this Court holds that the non-inclusion
of DHJS cadre posts for the purposes of reservation under the
Disabilities Act, cannot be upheld; it amounts to discrimination.
20. Now, as to the question of relief. During the hearing, the
Petitioner had contended that in terms of the existing guidelines he
W.P.(C) 983/2014 Page 21
should be given relaxation in the time to be taken for writing the
examination by way of extension of half an hour. As far as age
relaxation is concerned, the advertisement does not specify any
maximum age limit. That question does not accordingly arise.
21. The decision in National Federation of the Blind (supra) states
that reservation under the Disabilities Act is to be vacancy-based – on
a textual reading of Section 33. If one were to literally apply that
authority to the facts of this case, it would not be possible to earmark
any post under the 3% quota since the total number of advertised posts
is only 14. Keeping in mind the circumstance that for the period 2007
onwards when the disabilities reservation was introduced in Judicial
Services in Delhi for the first time, and also taking notice of the fact
that this Court is called upon to decide the issue in the context of the
direct recruitment quota for the DHJS which is 25% of the entire cadre
strength of 224 posts or such other number as is determined, having
regard to the increased number of posts, the most feasible approach
under the circumstances would be to determine the total number of
posts that are to be filled in this quota before actually taking steps to
fill them. This Court is also mindful of the circumstance that the
advertisement in this case was issued on 30.12.2013. The petitioner
approached this Court on 03.02.2014. One of the alternatives that this
Court could adopt would be to direct the consideration of the
petitioner’s case, based upon his claim as a disabled candidate and,
therefore, entitled to be considered as against the 3% quota. Although
this course is attractive, at the same time, the Court cannot be
W.P.(C) 983/2014 Page 22
oblivious of the circumstance that other eligible and possibly equal, if
not more meritorious candidates, are unaware of their right to be
considered against this quota. Directing the petitioner’s case alone to
be processed on the basis of the documents and materials presented by
him to back-up the claim of disability would in such a case result in
keeping out those candidates. In these circumstances, this Court is of
the opinion that the most appropriate method of proceeding with this
exercise is to direct the respondents to earmark one of the advertised
posts for disabled candidates in terms of the 3% quota under the
Disabilities Act and not fill it up in the present recruitment process.
Once the recruitment process is completed and the appointments are
made, depending upon the further number of vacancies which may
exist at the stage of declaration of results, the respondents should
carry-out a review of the balance number of vacancies that can be
appropriately earmarked for those with disabilities, club them with the
post directed to be kept apart and proceed with the next recruitment
process, clearly indicating the total number of vacancies earmarked
under the 3% quota. In the event the respondents are not in a position
to advertise all the vacancies, it shall endeavour to at least carry-out a
special recruitment procedure in respect of only the earmarked
vacancies falling to the share of those entitled to be considered under
the 3% quota under the Disabilities Act, within one year of the date of
declaration of results in the current recruitment process. A direction is
accordingly issued to the respondents to carry-out the exercise and
complete the special recruitment drive after following the steps
indicated above.
W.P.(C) 983/2014 Page 23
22. The Writ Petition is entitled to succeed to the above extent
indicated above. It is accordingly allowed along with pending
applications with no order as to costs.
Order dasti.
MARCH 25, 2014
S. RAVINDRA BHAT
(JUDGE)
W.P.(C) 983/2014 Page 24
R.V. EASWAR
(JUDGE)
