Reservation For Persons With Disabilities: Gujarat HC Notes "Misunderstanding" In Chief Secretary's Mind On Implementation of Relevant Laws

While hearing a PIL petition for implementing the mandate of the Rights of Persons with Disabilities (RPwD) Act 2016 as well as an earlier law, concerning reservation for persons with disabilities in  government establishments, the Gujarat High Court noted the "clear misunderstanding" in the mind of the state's Chief Secretary on the laws' implementation. 

It also noted that the manner in which the vacancies were calculated and the details of the recruitment exercise undertaken in certain years, showed the complete lack of understanding concerning reservation, for implementing the relevant laws. The court thereafter cautioned the Chief Secretary to be mindful while making a statement of oath.

A division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi was hearing a PIL plea seeking full and effective implementation of the RPwD Act, 2016 specifically Section 34–for providing reservation in every government establishment. It also sought implementation of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 so as to implement the directions contained in Supreme Court's 2013 judgment in Union of India and Another vs. National Federation of the Blind and Others. 

The court in its October 4 order noted the Chief Secretary's affidavit which stated that on an "inquiry it was transpired that any vacancy, which has not been subjected to complete process of selection even though vacant, cannot be treated as a backlog vacancy". 

The affidavit said that the factum of number of posts that have been advertised for recruitment till date has to be considered based on which the the number of vacant posts (category-wise vacancies) reserved for persons with disabilities is to be arrived at. It said that the whole exercise is to be carried out afresh. 

The court was told that in the peculiar circumstance, the State Government has already initiated the fresh exercise for computation of the posts to be filled for the persons with disabilities in each department including the public sector undertaking/government sector of the State.

Posts that remained vacant were few

Pointing to its affidavit the State submitted that the benefit of reservation as prescribed under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1955 has been applied in Gujarat for the recruitment undertaken in consonance with the notification of February 19, 2020. It was submitted that reservations as per the RPwD Act 2016 has been applied in Gujarat in consonance with the Government Resolution of September 17, 2021.

"It is, thus, sought to be submitted that those posts which remained vacant as a result of the implementation of the reservations rules, are only few and the column 6C of the table, as referred in the affidavit, shows the number of posts that are required to be filled up in the subsequent recruitment exercises undertaken by the respective government departments are actually zero against most of the posts," the order notes.

Meanwhile the senior advocate SK Rungta appearing for the petitioner–National Federation of the Blind, confronted the stand of the Chief Secretary and the chart appended with his affidavit.

Clear misunderstanding in Chief Secretary's mind on implementation of the law

The high court thereafter said, "On a query made by the Court from the learned Advocate General about the computation made in the chart, it became clear that there was a clear misunderstanding in the mind of the Chief Secretary of the Government of Gujarat in the matter of implementation of the Act, 1955 and the Act, 2016. The manner in which the calculation has been done and the details provided with respect to the recruitment exercise undertaken from 2000 to 2020 and after 17.09.2021 when the State has decided to implement the Act, 1995 and Act, 2016 respectively, shows that there is complete lack of understanding in the matter of reservation for implementation of both the enactments".

The high court said that there is a requirement of computing backlog vacancies which are to be filled in a particular recruitment year after the enforcement of the 1995 Act which could not be filled "because of the apathy of the State Government".

There is also a requirement of computation of backlog vacancies as per the RPwD Act 2016, which the court noted, has been implemented after 5 years from its enactment.

Identifying vacancies for reservation under the law a legislative mandate

"The identification of vacancies for reservation under the Act, 1995 and the Act, 2016 was Legislative mandate of the Parliamentary Legislation, which was enacted to give effect to the Proclamation on the Full Participation and the Equality of the People with Disabilities in the Country. The Act, 2016 has been brought into force to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for the matters connected there with and incidental thereto. Moreover, the Apex Court's judgment in National Federation of the Blind (supra) came on 8th October, 2013. Inspite of that, not giving full effect to the Act, 2016 in the State of Gujarat, invite contempt of the Apex Court decision by the State Government. The requirement is to remedy the situation forthwith," the bench underscored. 

During the hearing, Rungta drew the court's attention to its March 13 order by which the Chief Secretary was required to ensure implementation of Section 34 of the RPwD Act by identifying posts in the cadre strength in each group of posts, meant to be filled with persons with benchmark disability.

Computation of vacancies not done as per requirement of the law

Pursuant to this order, the data from time to time was placed before the Court. However Rungta assailed the data with the categorical assertion that the computation of the vacancies in the cadre strength meant to be filled up with persons with benchmark disability has not been made as per the requirement of the RPwD Act. 

It was argued that the categorical direction of the Apex Court was to the effect that the computation of the reservation for persons with disabilities has to be made in case of four group of posts, such as Group 'A', 'B', 'C' and 'D' posts in an identical manner –which is computing 3% reservation of total number of vacancies in the cadre strength, as per the intention of the Legislature. It was clarified therein that reservation for persons with disabilities has nothing to do with the ceiling of 50%, inasmuch as, the said reservation is horizontal.

Noting that the PIL pertained to the "method" in which the Supreme Court's 2013 directions was being implemented the court said, "It is an admitted fact of the matter that in the State of Gujarat, the Act of 1955 has been implemented only in the year 2000. There has been no reservation in compliance of Section 33 of the Act, 1955 between the years 1996 to 2000. In the similar manner, the Act of 2016 was implemented only in the year 2021. The result is that 3% of the vacancies which were meant for persons with disabilities in the Government establishments were not filled up by providing reservation against the total number of vacancies in the cadre strength in each group of posts. The Legislative mandate has not been implemented. The question, thus, is of filling up the backlog vacancies for effective representation of persons with disabilities in the State of Gujarat so as to help them to break the social and practical barriers and to live their lives with dignity, to overcome the poverty and provide succor to their family". 

Thereafter a suggestion was made to the State that it can take assistance of the Central government's Department of Personnel and Training, which has conducted the exercise of computation of backlog vacancies since 2015. 

The Advocate General appearing for the State Government assured the court that the government is committed to implement the RPwD Act 2016 and the 1996 Act to give full effect to the rights of persons with disabilities and to provide them equal opportunity and full participation in the State of Gujarat, so as to remove discrimination against the persons with disabilities.

The Advocate General assured the Court that the State would coordinate with the Department of Personnel and Training, Government of India would find out a solution to rectify the situation by computation of the backlog vacancies so as to prepare a plan for holding Special recruitment drive.

"On the assurance, in order to provide opportunity to the State Government to undo the wrong, we post the matter on 22.11.2024. The Chief Secretary, the State of Gujarat is cautioned to be mindful of the requirement of law before making any statement on oath in the Court of law," the court said. 

The matter is next listed on November 22. 

Case title: NATIONAL FEDERATION OF THE BLIND v/s STATE OF GUJARAT & ANR.

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