Delhi High Court Directs Kendriya Vidyalaya Sangathan To Prepare ‘Vacancy Based Roster’ For Persons With Disabilities In Three Months

The Delhi High Court has directed the Kendriya Vidyalaya Sangathan (KVS) to conduct an audit of the total number of vacancies and prepare a “vacancy based roster” for recruitment of persons with disabilities within three months.

A division bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula said that the exercise be done as per Rule 11 of the Rights of Persons with Disabilities Rules, 2016.

Rule 11 states that for computation of vacancies, four percent of the total number of vacancies including vacancies arising in the identified and non-identified posts in the cadre strength in each group of posts shall be taken into account by the appropriate Government for the persons with benchmark disabilities.

“If any vacancy, which ought to have been reserved in accordance with the 2016 Act, has already been filled by any person not falling in the reserved category due to failure of the respondent to reserve the same, the respondent shall adjust those vacancies from the unreserved pool of the available vacancies,” the court said.

It also directed KVS to reserve the post of Principal for persons with benchmark disabilities in blind or low vision category at a minimum of one percent.

The court passed the directions while dealing with a plea filed by National Federation of the Blind being aggrieved by the non-implementation of statutory reservation for Persons with Disabilities, particularly for the blind persons, in recruitment process of KVS.

The NGO challenged an advertisement published by KVS in 2018 for recruitment to the posts of Principal, Vice Principal, PGTs and TGTs etc. wherein vacancies were reserved in a post-wise and subject-wise manner. 

While there was no vacancy for the post of Principal for a person with visual disability, the post of Vice-Principal carried a vacancy. Certain subjects had vacancies for one category of disability only whereas others had no vacancy at all for any disability, despite falling in the same cadre.

The bench held the advertisement to be discriminatory and violative of the RPwD Act read with the 2017 Rules and observed that the discrimination is not only a denial of the promise of equal protection before the law but every act of exclusion is an assault on the dignity of a person.

“The impugned advertisement distinguishes the persons with disabilities from others, and puts a restriction on their potential to participate in the recruitment process to their full ability. The distinction is purely on the basis of disability. The advertisement has the effect of excluding the persons with disabilities from the race of recruitment, in complete violation of the mandatory reservation provision,” the court said.

It added that instead of providing an “equal space to grow, we have been compelling the persons with disabilities to prove, time and again, that they are capable of a lot more than we think.”

The court also said that the attitudinal and environmental barriers that prevent the persons with disabilities from exercising their fundamental freedoms and human rights to the fullest are a form of indirect discrimination.

Furthermore, the bench directed KVS to compute the number of vacancies to be reserved for the persons with disabilities against the total number of vacancies in the cadre strength in each group, inclusive of both identified and unidentified posts.

“The final appointment shall be made against the identified posts, even if the actual number of persons with disabilities appointed at a given post exceeds four percent. The respondent shall not create sub-categories subject-wise within a cadre. The vacancies shall be calculated on the total number of vacancies in a particular cadre and not on posts,” the court said.

The bench observed that the legislature has taken a commendable leap with the enactment of RPwD Act, 2016, but added that the process of implementation of the legislative wisdom is challenging.

“For, reformation of mindsets is a gradual process. From 1995 to 2016, the legislative wisdom experienced a significant growth. However, the status quoist approach in implementation of the legislation in its true spirit still prevails. We are reminded of the classic French expression - Plus ça change, plus c'est la même chose – which means “the more things change, the more they stay the same”,” the court said.

Counsel for Petitioner: Mr. S. K. Rungta, Senior Advocate with Mr. Prashant Singh, Advocate.

Counsel for Respondents: Mr. S. Rajappa and Mr. R. Gourishankar, Advocates for R-1. Mr. Govind Manoharan, Ms. Diksha Tiwari, Ms. Apurva Singh, Mr. Anchit Singla and Ms. Nishchaiy, Advocates for R-2/ NCTE. Ms. Monika Arora, CGSC with Mr. Yash Tyagi and Mr. Subhrodeep Saha, Advocates for R-3/UOI.

Title: NATIONAL FEDERATION OF THE BLIND v. KENDRIYA VIDVALAYA SANGTHAN & ORS.

Citation: 2023 LiveLaw (Del) 969

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