GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI DIRECTORATE OF EDUCATION (ACT-II BRANCH)

OLD SECRETARIAT, DELHI-110054

No.F. DE/15/Act-II/2014/ 64„___ /6(70 Dated: )c/C)/ 9,ei

CIRCULAR

In continuation of this office previous circular No. F. DE/15/Act-

11/2014/396-402 dated 10.03.2014 and as per the directions issued by

the directorate time to time in r/o role of DE's Nominees/EO's regarding

their role in SSC/DPC.

1. Order No. F.DE/15/Act/818-890 dated 03.02.06.

2. Order No. DE/15/Act/2005/1827-1890 dated 23.03.06.

3. Order No. DE/15/Act/2006/1904-1965 dated 27.03.06.

All the DE'S Nominees/E0's of the concerned zone are directed henceforth that they must make themselves well conversant with the DOPT OM No.36035/3/2004-Estt.(Res) dated 29.12.2005 and OM

No.36012/24/2009-Estt.(Res) dated 03.12.2013 and the Judgement

dated 08.10.2013 of the Hon'ble Supreme Court in order to ensure

implementation of reservation of person with disabilities in all Aided

Schools, while dealing with any SSC/DPC Case.

Non compliance of this order shall be viewed seriously and for any

lapse in future the erring official shall be held responsible.

SHASHIICAUSHAL SPL.DE (Act-II)

Copy to:- 1. P.S. to Commissioner, commission (Disability) GNCT of Delhi.

2. P.S. to DE.

3. P.S. to Spl.DE.

4. All DDE's/EO's/DE's Nominees of DOE with the request that the

same may be served to all the aided schools of their concerned

ditrict/zones and get compliance of the same order.

yfr-i charge of computer cell with the request to upload the same on

the site of the department.

C P OSTA ADE (Act-II)

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viifl OF NATION/5 1... CAPITAL (Cr■NITORY OF DELHI DIJ-.1;;CTOOATE OF EDUC:/ -1JQf \ _oLn SFCRETA-R1AT„ KUill:10054

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CIRCULAR

Ppoii! i ; ObS1:? Ived

ocedur,.: in making • imotion Sian • Departmental tOliCPA^ed vt

provisinns as contained und.r Rui the Delhi ohooJ Fduç j•';. inst:'3nces have also come io LHC oven HOIY1frii:".-: .:!,•-• •!•: ,i • ;I The Autl-Tirced Officer havc not a.lopk-:ci el followed prbpe.i

during the selection processe:f.. ii has resulteo in tictjc airis Directorate of Education. In order to streamline the whole process of seleen

, nis in the aided schools for the various categories of posts, and in superse;sion of all previous orders on the sLibject, the following guidelines are hereb•:.

for information and strict compliance. It shall he ensured' that is no deviation from the guit.1,...dines as given below.

Before an interview date is fixed for se!ection the DE nominee or the Author s,...)d Officer shall follow the guidelinesas under.

1. It riecessary to obtain prior cfearance from the Department to fill up posts L.

direct recruitment. It is a manckitor,... provision and needs to be observ.,d r.aiticularly in view of the .fact trial

i »umber. of surplus qualified other employees may f).:?' the department for ai-,sorplic,n Obtaining clearance will tti

n pre-requisite to the of the appoii)tmeril;:z of staff und-i : ci DS EA R, 1973, in peftnits!u• is vi.-.T.-oral shall ei.:pitrtaind by the Department .

Nt... :Application lee Si iilJ 1 charged by Hie SCI loot management to meet the e.; 'rises of adverlisoMent or en. 'iii it for corivoning the Staff Seic:ction C,yiirriikee Meetings

ili 0. r oi direct leCri!::1!ionts, the. rimnagern,:;=ni of aided schook must follow proceelori., belovt--

:JO The Hi•fliatj0111011ES CI sided schools are bound to notify to the Employment 1.-.T.

.:\change. The management will I otify vacal)cies to the Emi..)1..)vment Exchange, by giving at least 23 days time to obtain the names of c._:indidales, and also specify the qualifications aspres,:••:ribed in Recruitment Rules.

(b) They may simultaneously take recourse to invitw-japplications througl-. open advertisement.

It shall be seen that proper advertisement' in at least two leading dailies one in Hindi and al 101iier iii E.rigiisit, is 'issued by (I '.:;k2) .100; I It has to be ensured that there

ari.:O•no—difference's in the two advertii::ements given, in trIe Hindi and Finglish dailies.

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AppIications snow° not De oirougn V.U. Box Numbers.

The minimun..1 qualifications, or imoer of vacancies, category of persons eligible for the post..,, in accordance with the latest Recruitment Rules apprbved by [fie Administrator of Delhi, must be mentioned in the advertisemeni.

It should be made clear in the advertisement that experience certificate. if any, must mention designation of the post held, scale of pay, period for wh;ch the post was held and should be duly countersigned by the concert eci Education Officer.

(e) Applications through advertisement, be called either by Registered Post -in the name of Chairman/Manager of the school or it can be submitted at the counter/reception of the school 'By Hand': and the record of each and every application shall be maintained for the scrutiny of the Staff Selection Committee.

(f) Reservation shall have to be provided for SC/ST/OBC/PH category, as per rules/instructions issued by the Government from time to time.

(g) The eligibility of the candidate shall be finalized keeping in mind. the last date for receiving the application.

Any deviation/violation will disqualify the school from receivinc! grant-in-aid for the post..

4. It shall also be seen that for an ol.)ei i selection, the Employment Exchange sponsors the eligible candidates for each category of post to the

..school management. The certificates of the incumbents shall be duly checked and a broadsheet prepared by the school on the basis of eighty marks as per the criteria followed hitherto by the. Directorate of Education, taking into account the marks secured by the Candidates right from the High School up to Post. Graduation level, in addition tc the marks allotted for professional experience and additional qualifications. Attested photocopies of each certificate in respect of all candidates ( who have applied through advertisement and those sponsored by the Employment Exchange) shall be presented for the perusal of the Director's nominee/Authorized Officer. This broadsheet with the details of marks, including the date of birth shall be furnished well in advance to the nominee of the Director of Education and the Authorized Officer by the school management before the date for interview is fixed. If the school chooses not to disclose the names of the candidates it shall be open for them tO.code the application of each candidate and furnish the broadsheet to the Directbr's nominee/Authorized Officer. The date of the meeting of Stair{ Selection Committee shall be fixed within a week after the receipt of the broadsheet., The. decoding may be done on the date of interview or even before as decided by the school management.

it ..:-.1;u11 :iv.;t. responsioility ui the school foi valid I direct recruitment is g made, to inforn the candidates either for the checking of the

;ideates, on a specified date Of for the interview date at the school by eeistered Post and the same should be displayed on.the Notice Board of

,he School as well. Maximum number of candidates should be called for the interviews as per the criteria decided by the DSSSB or by the Government of India. If the selection to the posts under direct recruitment is not completed within six months from the ckr;ing dale of receipt of applications, the management shall have to 'start Hie whole pi ocess afresh , and no revalidation shall be granted in any case.

6. In no ca,ze, where the Direct - Recruitment. made, the marks for interview shall be kept more than twenty, meaning thereby the computation of marks of each candidates shall be done on the basis of educational, professional, • experience and higher qualifications consisting of eighty marks and twenty marks shall be reserved for interview, the distribution of which will be .decided on the date of interview by the Staff Selection Committee. The Marking Scheme should -be scrupulously followed and the Selection Committee should not make

E44oivir.,•„;:alrlany alteration in the Marking- Scheme. In cases where relaxation is required under Rule 97 of the Delhi School Education Act, 1973, the recommendation should be got appioved by the Director of Education before giving effect to the selection made, by the managing committee of the school.

7. The minutes of the Selection Committee meeting should be finalized and signed oil the same day • by all members including the Chairman immed∎ ately after the interviews are. over.

8. It would be mandatory for Dire'ctor's nominee. Lducation Officer and the Suoject to attend Selection Committee mooting on the date fixed with their Cot-tSellt. in case of any exigon0. they will inform in writing to the ChairmaitaVianager of the .;choot giving reasons about their inability to attend the SSC meetings. a copy of the same wili be endorsed to the Asstt. Director of Education (Act).

9. In the event of any- dispute, due to a dissenting note by any of the SSC member, the case for the grant of approVal will be submitted to this office within 07 days from the date of SSC along with the following documents.

(i) Minutes of the Selection Committee Meeting along with the marking scheme in respect of the candidates who appeared before the Interview Board. The documents must bear the signatures of all the members of the Selection Committee.

(ii) Resolution of the Managing Committee with dale

(iii) Attested copies of tl-e testimonials of educational qualifications and experience certificate, if any, for earning relaxation in age, duly countersigned by the authorized signatory.

(e)

(Abha Joshi) Asset. Director of Education (Act)

VelMISSI011 .110111 the Departmeiat for Idling up the, post. Copy of the order of post fixation. Details of names sent by the Employment Exchange & in its absence, non-availability certificate from the employment exchance. Papers snowing that the necessary intimation was given to district office to send the riJries of the subject expert, educationist and departmental observer in the case of minority schools. Letter of DE's nominee/Education Officer, if any, for not attending SSC meeting.

10. The Director's nominee/AuthOrized Officer shall see that the promotion to any post. in the aided school is made out of the feeder cadre strictly on the basis of eligibility in terms of educational qualifications and experience as per Recruitment Rules notified for the post. In such cases where the post is essentially a selection post, ACRs for the last five years, Annual results, work and conduct report, vigilance clearance arid seniority shall be taken into consideration.

11. No prior clearance of post will be needed from Act Branch for the posts to be filled by promotion, and this is applicable for the post of Principal and Vice Principal as well.

12. All the Director's Nominees are direded to ensure that the results of the selections is declared to the aspiring candidates on the same day after the conclusion of the selection process cir the IWC meetings (as the case may be).

13. Management Committee:: of the schools may seek clearance for filling up the posts by direct recruitment and hold Staff Selection Committee's meetings during the year, but no appointment letter be issued between 31st March and 8th July of that year.

(VIJAY KUMAR) DIRECTOR OF EDUCATION

No. Dated Copy to.-

1. All Regional Directors of Education. 2. Addl. DE (Schools) 3. All DOEs/ADEs/E0s/DEOs 4. All Manages of Govt. Aided Schools/AOs of taken over schools. 5. In charge Computer Cell • • G. Guard file

,),,Atizomuctlatgadet

DIRECTORATE OF EDUCATION GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI

(ACT BRANCH) ROOM NO 212 "A": OLD SECTT: DELHI-54

No. DE/IS/Act/2005/1827-1890 Dated: 23/3/06 ORDER

It has often come to the notice that nominees of the Director of Education fail to perform the respOnsible role expected from them as representative of the Department. All the DE's nominees in the Managing Committee, the Staff Selection Committee, DPC or the Disciplinary Authority of a Recognized Aided or Unaided Schools are, therefore, directed to comply with the following instructions:

1. (i) attend without fail the meetings of these Committees whenever intimation is received. The schools are also expected to consult the convenience of all the members before fixing up meetings but it may not always be possible. The Nominee should sort it out with the school authorities. In case, they find that any school management is deliberately trying to avoid calling them, matter may immediately be brought to notice of the Directorate.

(ii) send a quarterly report in the first week of April, July, October and January to the Director of Education which should contain the following particulars:

(a) Number of the meetings, if any, of the Managing Committee, the Staff Selection Committee, DPC or the Disciplinary Authority held during the quarter, along with dates; (b) Number of meetings attended along with dates; (c)Number of meetings not attended along with dates and the reasons for non-attendance; (d)Brief particulars of the business transacted in the meetings.

(iii) insist on circulation of agenda .of the meeting in advance so that he/she may go to the meeting with full preparation;

(iv) insist on circulation of the minutes of the meeting;

(v) put forth the view of the Government as reflected in the Act and the Rules and the instructions issued by the Director with regard to the matter under discussion. In spite of this, it is possible that the Committee

may not follow the advice of the Nominee. In such a situation, the Nominee should insist that his or her views, opposing the decision along with the reasons, must be reflected in the minutes;

(vi) should send a written protest mentioning clearly that the minutes have been wrongly recorded and do not' reflect the views of the Nominee, in case the minutes wrongly indicate that the decision was unanimous and taken with the full consent of the Nominee whereas in fact the Nominee had opposed it. A request should also be made for redrafting the minutes and a copy of this communication should be sent to the Director of Education. Unless and until this is done, the Nominee will be deemed to have failed in the performance of his/her duty;

(vii) immediately bring in writing to the notice of the Director of Education in case any grave irregularity in the functioning of the school comes to light;

(viii) pay particular attention to certain provision of the Act and the Rules and the instructions issued by the Director regarding some major issues. Some of them are as follows:

(A) Managing Committee

(i) The constitution of the Managing Committee: It should be ensured that the Managing Committee has been constituted in accordance with Rule 59 and two nominees of the Director of Education and two of the Advisory Board are in position. It should also be ensured that the two teacher representatives are elected by the teachers and the representatives of parents are elected by the PTA. Advisory Board nominees are not required in a minority school and the ceiling on the number of members also does not apply to such school.

(ii) Probation of an employee: Every employee on initial appointment is on probation for a .year. During this period, the probation may be extended for one more year or his services may be terininated without notice. Both for extension of probation and termination of service, the approval of the Director is necessary except in a minority school. The Director of Education's Nominee should ensure that there are adequate grounds for extension of probation or termination during probation, as the case may be The Director of Education's Nominee should consult Rule 105 in this regard.

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(iii) Appointment: The Managing ,Committee is the Appointing Authority of all employees in the school but it has no powers to select the employees which is done by the Selection Committee/DPC. The Managing Committee can appoint an employee on the recommendation of the Selection Committee/DPC only. If any selection made by the Selection Committee/DPC is not acceptable to the Managing Committee or there is a difference of opinion among the members of the Selection Committee/DPC, the matter shall be referred to the Director for decision. Rule 96 and 98 should be consulted in this regard.

(iv) Fees and other charges: No Recognized Unaided School can collect any fee or any other charge except under the following heads:

(a) Registration Fee (b) Admission Fee (c) Caution Money (d) Tuition. Fee (e) Annual Fee (f) Earmarked levies (g) Development fee

Rs. 25/-Rs. 200/-Rs. 500/-

A copy each of the orders issued on 15.12.1999 is enclosed which may be perused carefully. It has to be ensured that money charged for a particular purpose has to be spent for that purpose only. The Trust or the Society running the school shall not collect any contribution from the students or their parents. The school may collect donations (not at the time of admission or when results are declared) but they will be voluntary and not forced and for every contribution, proper receipt shall be given. An Aided School has to seek the Director of Education's prior approval for obtaining donations from its students/parents. The quantum of the charges at (a), (b) and (c) has been decided by the Director as the maximum limit. The other charges are to be decided by the Managing Committee only after consulting the parent and the Government nominees on the Managing Committee. Section 17 and 18 and Rules 154, 155, 156,172, 173,175 and 178 should be consulted in this regard.

(vi) Utilization of Income: Rules 175, 176 and 177 describe in detail how the income of school shall be utilized. ' The Director of

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Education's Nominee should ensure that the provisions of these Rules as well instructions issued under Clause 8 of the order No. DE.15/Act/Duggal.Com /203/99/23039-23988 dated 15.12.99, which is reproduced below, are strictly being followed. Clause -8 "Fee/funds collected from. the parents/students shall be utilized strictly in accordance with rules 176 and 177 of the Delhi School Education Rules, 1973. No amount whatsoever shall be transferred from the recognized unaided school fund of a school to the society or the trust or any other institution. "

(B) Selection Committee

(1) The Constitution .of the Selection Committee/DPC: It should be ensured by the Government nominees that the Selection Committee/DPC is constituted as per Rule 96.

(ii) Appointment in Aided Schools: As per Rule 98 every appointment in an Aided School except a minority school shall require the approval of the Director but where the Director's nominees agree to the selection and where the selection is unanimous, this approval will not be required. Extra care is, therefore, required to ensure that only an eligible and the most suitable candidate is selected.

(iii) The Zone of consideration for promotion shall be five for one post, eight for two posts and so on as per the instructions of 1.) the Government of India. ts:

(iv) The following documents should be insisted upon in the meeting of the Selection Cornmittee/DPC.

(a) Seniority list of eligible candidates duly signed by them (for promotion)

(b) Applications in original along with attested copies of all certificates of qualifications, experience, age and caste (wherever applicable).

(c) Letter from the employment exchanges sponsoring names of candidates (for direct recruitment) in Aided Schools.

(d) Copies of the press advertisements inviting applications (for direct recruitment)

(e) 200-point roster for reservation (for Aided Schools) ()) Post-fixation for the current year (for Aided Schools) (g) Clearance from the Department to fill up the posts (for

direct recruitment in Aided Schools)

J (h) Recruitment Rules. (i) VigilanCe Clearance Report (for promotion) (j) Integrity Certificate (for promotion). (k) Annual Confidential Reports for the last five years duly

reviewed for promotion)

(C) Disciplinary Authority

(i) Constitution of Disciplinary Authority: It should be ensured that the Disciplinary Authority is constituted as per Rule 118.

(ii) Minor Penalties: Minor Penalties listed in Rule 117 can be given only as per the procedure prescribed in Rule 119.

(iii) Major Penalty: Major Penalty as given in Rule 117 can be imposed on an employee only after following the procedure prescribed in Rule 120.

(iv) The Director of Education's Nominee should carefully consider the Inquiry Report and ensure that the punishment, if being imposed, is proportionate to the seriousness of the charges proved in the inquiry.

(ix) An officer should attend meetings of the Managing Committee, the Selection Committee/DPC or the Disciplinary Authority only if nominated specifically for that Committee by the Director. Separate nominations are made for the Managing Committee, the Selection Committee/DPC and the Disciplinary Authority. The officer, nominated on the Managing Committee, does not ispso facto become a member of the Selection Committee or the Disciplinary Authority.

2. In minority schools, the role of the Director of Education's Nominee on the Managing Committee and the Selection Committee/DPC shall be that of an observer and an adviser only. However, it does not lessen his/her importance in any way. He/She is required to put forth the views of the Government and give advice as per the correct legal position which will be recorded in the minutes.

3. In case the majority does not agree to the advice of the Director of Education's Nominee in the meeting, the Director or Education's Nominee should clearly state, while signing the minutes, that he/she does not agree to the decision and also state the reasons of disagreement. The disagreement should also be brought to the notice of the Director. But in no case the Director of Education's Nominee will refuse to sign the minutes once he/she has attended the meeting.

6 4. The provisions of the Act and the Rules quoted in these directions are illustrative in nature and not exhaustive. For a full and detailed understanding of these provisions, the relevant provisions of Delhi School Education Act and Rules, 1973 must be consulted by the Director of Education's Nominee.

Working on the above bodies is as much an official duty of the Nominee as his or her other official duties and its non-performance will invite the same kind of action as is taken in the case of any lapse or default in performing the normal official duties.

- Sd - (VIJAY KUMAR)

DIRECTOR OF EDUCATION

All Nominees of Director of Education

Copy to:

1. Secretary to Hon'ble Minister of Education. 2. PS to Secretary (Education) 3. All Regional Directors of Education. 4. All Dy. Directors 'of Education — with the request to serve a

copy of this order to EOs/DEOs/Principals of their jurisdiction. 5. In-charge of Computer Cell for putting the same on the

Website of the Education Department.

- Sci - (ABHA JOSHI)

ASSTT. DIRECTOR OF EDUCATION (ACT)

DIRECTORATE OF EDUCATION GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI

(ACT BRANCH) ROOM NO.212 "A": OLD SECTT: DELHI-54

No. DE.15/ACT/2006/1904-1965 Dated.:27/3/06

ORDER

Attention of all the Nominee of the Director attending staff selection Committee

is drawn towards the provision of Rule 96 (8) of Delhi School Education Act &.Rules, 1973

which reads as:

"Where a candidate for recruitment to any post- in a recognized school is related to any

°member of the selection committee, the member to whom he is related shall not participate in

the selection and a new member shall be nominated, in the case of any aided school, by the

Director, and in the case of any other school, by. the managing committee, in place of such

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The DE's Nominee's are to ensure that the provisions of above said rule are

strictly adhered to while conducting SSC for any'post in All Recognized Schools. Further, in

case of an Aided Private Recognized School, when a candidate recommended for selection by

SSC is related to any member of Managing Committee/ Principal of the school, before issuing

offer of appointment to the candidate, all the relevant documents be sent to Act Branch for

scrutiny to examine that the entire process has been followed as per rules. in such cases offer

of appointment will be issued after approval from Directorate of Education.

-Sd- (VIJAY KUMAR)

DIRECTOR OF EDUCATION Copy to:-

I. P.S To Director of Education 2. All Regional DirectorS :3. All DDE's • 4. All. E.O.'s/DEO's. 5. incharge computer cell for website of the Department.

imMEDIATE/COURT MATTER

No.36012124/2009-Estt(Res) Government of India

Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training

North Block, New Delhi. Daied the 3'i December 2013

OFFICE MEMORANDUM Subject:

Reservation for persons with disa,..rilities- Computation of reservation- implementation of the judgement of Hon'ble Supreme Court in the matter of Union of 1.dia & Anr. Vs. National Federation of Blind & Ors.

The undersigned is directed to refer to this Department's OM No.36035/3/2004-Est(Res) dated 29,12.2005, a copy of which is enclosed for ready reference, through which this Department had issued consolidated instructions regarding reservation for persons with disabilities. The instructions were in consonance with the provisions of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995.

2. Para 13 of the Office Memorandum of 29.12.2005 provides that reservation for persons with disabilities in case of direct recruitment as well as promotion for Group C and Group D posts shall be computed on the basis of total number of vacancies occurring in Group C and Group D posts as the case may be in the establishment although the recruitment of the persons with disabilities would only be in the posts identified suitable for them. Para 14 of the said O.M. provides that Reservation for persons with disabilities-in-Group 'A' posts shall- be computed on the basis of vacancies occurring in direct recruitment quota Li all the identified Group 'A' posts in the establishment. The s3rne method of computation applies for Group 'B' posts.

3. The Hon'ble Supreme Court in its judgement dated 8.10.2013 in the matter of Civil Appeal No.9096 of 2013 (arising out of SLP (Civil)Ne.",'541 of 2009) titled Union of India & Anr. Vs. National Federation of Blind & Ors. has. inter-alia, held :

'Thus, after thoughtful consideration, we are r the view 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."

C----

4. The Hon'ble Supreme Court has, inter aria, directed that the following action be taken in order to ensure proper implementation of the reservation policy for the disabled and to protect their rights:-

(i) to issue an appropriate order modifying the O.A. dated 29.12.2005 and the subsequent O.Ms consistent with this Court's Order within three months from the date of passing of the judgment.

(ii) 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 DoPT 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 proceeoed against for the default.

5. Keeping in view the directions of the Hon'ble Supreme Court, Para 14 of the OM dated 29.12.2005 is modified to the following extent:

"Reservation for persons with disabilities in Group 'A' or Group 'B' posts shall be computed on the basiS of total number of vacancies occurring in direct recruitment quota in all the Group A posts or Group 'B' posts respectively, in the cadre."

6. Other provisions of the OM viz. quantum of reservation, horizontality of reservation, effecting reservation and maintenance of rosters etc. would remain the same.

7. All the Ministries/Departments/Organisations of the Government of India are requested to compute the number of vacancies available in all the cadres under their control including attached offices, subordinate offices, public sector undertakings, Government companies, cantonment Board etc. in the aforesaid manner and further identify the posts for disabled persons within a period of three months from the date of the judgement of the Hon'ble Supreme Court (i.e. 8.10.2013) and implement the same without default.

8. This is for strict compliance in accordance with the directions of the Hon'ble Supreme Court in respect of all the Ministries/Departments including their Public Sector Undertakings/Government companies, Cantonment Boards etc. Non-observance of the provisions of reservation for persons with disabilities shall be considered as an act of disobedience and the Nodal Officer concerned in Department/Public Sector Undertaking/Government. company, responsible for the

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proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default.

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(G. Srinivasan) Deputy Secretary to the Government of India

Tel. No.23093074 To

(i) The Secretary, All the Ministries/Departments of the Government of India (ii) The Secretary, Department of Financial Services (Banking and Insurance

Division), New Delhi (iii) The Secretary, Department of Public Enterprises, New Delhi (iv) The Secretary, Railway Board, Rail Bhavan, New Delhi. (v) Union Public Service Commission, SuPreme Court of India, Election

Commission of India, Lok Sabha Secretariat, Rajya Sabha Secretariat, Cabinet Secretariat, Prime Minister's Office, Planning Commission.

(vi) The Secretary, Staff Selection Commission, CGO Complex, Lodhi Road, New Delhi.

(vii) Office of the Chief Commissioner of Disabilities, Sarojini House, 6 Bhagwan Das Road, New Delhi-110001:

(viii) Office of the Comptroller & Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi.

(ix) All officers and Sections in the Ministry of Personnel, Public Grievances and Pensions and all the attached/subordinate.offfQes of this Ministry.

(x) Infdrtbatibri and Facilitation Centre, North Block, New Delhi — 25 copies.

Copy to Chief Secretaries of all States/Union Territories — for information

Copy to Director (NIC), DOP&T- with a request to place this on the website of this Ministry for information of all concerned.

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No. 36035/3/2004-Esrt(kes) GOVERNMENT OF INDIA

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES dit PENSIONS DEPARTMENT OF PERSONNEL di TRAINING

New Delhi, Dared -Old 29th December, 2005

OFFICE MEMORANDOm

Subject- Reservation for the Persons with Disabilities.

With a view to consolidating the existing instructions, bringing them in line with the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 and clarifying certain issues including procedural matters, the following instructions are issued with regard to reservation for persons with disabilities (physically handicapped persons) in posts and services under the Government of India. These instructions shall supercede all previous instructions issued on the subject so far.

2. QUANTUM OF RESERVATION

(i) Three percent of the vacancies in case of direct recruitment to Group A, B, C and D posts shall be reserved for persons with disabilities of which one per cent each shall be reserved for persons suffering from (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the posts identified for each disability;

Three percent of the vacancies in case of promotion to Group D, and Group C posts in which the element of direCt recruitment, if any, does not exceed 75%, shall be reserved for persons with disabilities of which one per cent each shall be reserved for persons suffering from (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the posts identified for each disability.

3. EXEMPTION FROM RESERVATION : If any Department / Ministry considers it necessary to exempt any establishment partly or fully from the provision of reservation for persons with disabilities, it may make a reference to the Ministry of Social Justice and Empowerment giving full justification for the proposal. The grant of exemption shall be considered by an Inter-Departmental Committee set up by the Ministry of Social Justice and Empowerment.

4. IDENTIFICATION OF JOBS / POSTS: The Ministry of Social Justice and Empowerment have identified the jobs / posts suitable to be held by persons with disabilities and the physical requirement for all such jobs / posts vide their notification no. 16-25/99.NI.1 dated 31.5.2001. The jobs / posts given in Annexure II of the said notification as amended from time to time shall be used to give effect to 3 per cent reservation to the persons with disabilities. It may, however, be noted that:

(a) The nomenclature used for any job / post shall mean and include nomenclature used for other comparable jobs / posts having identical functions.

(b) The list of jobs / posts notified by the Ministry of Social Justice & Empowerment is not exhaustive. The concerned Ministries / Departments shall have the discretion to identify jobs / posts in addition to the jobs / posts already identified by the Ministry of Social Justice & Empowerment. However, no Ministry / Department / Establishment shall exclude any identified job / post from the purview of reservation at its own discretion.

(c) If a job/ post identified for persons with disabilities is shifted from onsigroup or grade to another group or grade due to change in the loay-scale or otherwise, the job/ post shall remain identified.

5. RESERVATION IN POSTS IDENTIFIED FOR ONE OR TWO CATEGORIES: If a post is identified suitable only for one category of disability, reservation in that post shall be given to persons with that disability only. Reservation of 3% shall not be reduced in such cases and total reservation in the post will be given to persons suffering from the disability for which it has been identified. Likewiie in case the post is identified suitable for two categories of disabilities, reservation shall be distributed between persons with those categories of disabilities equally, as far. aa possible. It shall, however, be ensured that reservation in different posts in the establishment is distributed in such a way that the persons of three categories of disabilities, as far as possible, get equal representation.

6. APPOINTMENT AGAINST UNRESERVED VACANCIES: In the posts which are identified suitable for persons with disabilities, a person with disability cannot be denied the right to compete for appointment against an unreserved vacancy. Thus a person with disability can be appointed against an unreserved vacancy, provided the post is identified suitable for persons with disability of the relevant category.

7. ADJUSTMENT OF CANDIDATES SELECTED ON THEIR OWN MERIT : Persons with disabilities selected on their own merit without relaxed

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standards alongwith other candidates, will not be adjusted against the reserved share of vacancies. The reserved vacancies will be filled up separately from amongst the eligible candidates with disabilities which will thus comprise physically handicapped candidates who are lower in merit than the last candidate in merit list but otherwise found suitable for appointment, if necessary, by relaxed standards. It will apply in case of direct recruitment as well as promotion, wherever reservation for persons with disabilities is admissible.

8. DEFINITIONS OF DISABILITIES : Definitions of categories of disabilities for the purpose of this Office Memorandum are given below:

(i)(a)Blindness: "Blindness" refers to a condition where a person suffers from any of the following conditions, namely:-

(i) total absence of sight; or

(ii) visual acuity not exceeding 6/60 or 20/200(snellen) in the better eye with correcting lenses; or

(iii) limitation of the field of vision subtending an angle of 20 degree or worse;

(b) Low vision: 'Person with low vision" means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device.

(ii) Hearing Impairment:- "Hearing Impairment" means loss of sixty decibels or more in the better ear in the conversational range of frequencies.

(iii)(a) Locomotor disability : "Locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy.

(b) Cerebral Palsy :- "Cerebral Palsy" means a group of non-progressive conditions of a person characterised by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, peri-natal or infant period of development.

(c) All the cases of orthopaedically handicapped persons would be covered under the category of "locomotor disability or cerebral palsy."

9. DEGREE OF DISABILITY FOR RESERVATION : Only such

persons wou).d.lbe eligible for reservation in services / posts who suffer from not less tharl 40 jr.)...r cent of relevant disability. A person who wants to avail of benefit of reterclation would have to submit a Disability Certificate issued by a competent authority in the format given in Annexare I.

10. COMPETENT AUTHORITY TO ISSUE DISABILITY CERTIFICATE :- The competent authority to issue Disability Certificate shall be a Medical Board duly constituted by the Central or a State Government. The Central / State Government may constitute Medical Board(s) consisting of at least three members out of which at least one shall be a specialist in the particular field for assessing locomotor / cerebral / visual / hearing disability, as the case may be.

11. The Medical Board shall, after due examination, give a permanent disability certificate in cases of such permanent disabilities where there are no chances of variation in the degree of disability. The Medical Board shall indicate the period of validity of the certificate, in cases where there are chances of variation in the degree of disability. No refusal of disability certificate shall be made unless an opportunity is given to the applicant of being heard. On representation by the applicant, the Medical Board may review its decision having regard to all the facts and circumstances of the case and pass such orders in the matter as it thinks fit.

12. At the time of initial appointment and promotion against a vacancy reserved for persons with disability, the appointing authority shall ensure that the candidate is eligible to get the benefit of reservation.

13. COMPUTATION OF RESERVATION: Reservation for persons with disabilities in case of Group C and Group D posts shall be computed on the basis of total number of vacancies occurring in all Group C or Group D posts, as the case may be, in the establishment, although the recruitment of the persons with disabilities would only be in the posts identified suitable for them. The number of vacancies to be reserved for the persons with disabilities in case of direct recruitment to Group 'C' posts in an establishment shall be computed by taking into account the total number of vacancies arising in Group 'C' posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. The same procedure shall apply for Group 'D' posts. Similarly, all vacancies in promotion quota shall be taken into account while computing reservation in promotion in Group 'C' and Group 'D' posts. Since reservation is limited to identified posts only and number of vacancies reserved is computed on the basis of total vacancies (in identified posts as well as unidentified posts), it is possible that number of persons appointed by reservation in an identified post may exceed 3 per cent.

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14. Reservation for persons with disabilities in Group 'A' posts shall be computed on the basis of vacancies occurring in direct recruitment quota in all the identified Group 'A' posts in the establishment. The same method of computation applies for Group 'B' posts.

15. EFFECTING RESERVATION — MAINTENANCE OF ROSTERS: (a) All establishments shall maintain separate 100 point reservation roster registers in the format given in Annexure II for determining / effecting reservation for the disabled — one each for Group 'A' posts filled by direct recruitment, Group 'B' posts filled by direct recruitment, Group 'C' posts filled by direct recruitment, Group 'C' posts filled by promotion, Group 'Er posts filled by direct recruitment and Group 'D' posts filled by promotion. •

(b) Each register shall have cycles of 100 points and each cycle of 100 points shall be divided into three blocks, comprising the following points:

1m Block — point No.1 to point No.33 2nd Block — point No. 34 to point No.66 3'd Block — point No.67 to point No.100

( c) Points 1, 34 and 67 of the roster shall be earmarked reserved for persons with disabilities — one point for each of the three categories of disabilities. The head of the establishment shall decide the categories of disabilities for which the points 1, 34 and 67 will be reserved keeping in view all relevant facts.

(d) All the vacancies in Group C posts falling in direct recruitment quota arising in the establishment shall be entered in the relevant roster register. If the post falling at point no. 1 is not identified for the disabled or the head of the establishment considers it desirable not to fill it up by a disabled person or it is not possible to fill up that post by the disabled for any other reason, one of the vacancies falling at any of the points from 2 to 33 shall be treated as reserved for the disabled and filled_ as such. Likewise a vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be filled by the disabled. The purpose of keeping points 1, 34 and 67 as reserved is to fill up the first available suitable vacancy from 1 to 33, first available suitable vacancy from 34 to 66 and first available suitable vacancy from 67 to 100 by persons with disabilities.

(e) There is a possibility that none of the vacancies from 1 to 33 is suitable for any category of the disabled. In that case two vacancies from 34 to 66 shall be filled as reserved for persons with disabilities. If the vacancies from 34 to 66 are also not suitable for any category, three vacancies shall be filled as reserved from the third block containing points from 67 to 100. This means that if no vacancy can be reserved in a particular block, it shall be carried into the next block.

(t) After all the 100 points of the roster are covered, a fresh cycle of 100 points shall start.

(g) If the number of vacancies in a year is such as to cover only one block or two, discretion as to which category of the disabled should be accommodated first shall vest in the head of the establishment, who shall decide on the basis of the nature of the post, the level of representation of the specific disabled category in the concerned grade/post etc.

(h) A separate roster shall be maintained for group C posts filled by promotion and procedure as explained above shall be followed for giving reservation to persons with disabilities. Likewise two separate rosters shall be maintained for Group D posts, one fo the posts filled by direct recruitment and another for posts filled by promotion.

(i) Reservation in group A and group B posts is determined on the basis of vacancies in the identified posts only. Separate rosters for Group A posts and Group B posts in the establishment shall be maintained. In the rosters maintained for Group A and Group B posts, all vacancies of direct recruitment arising in identified posts shall be entered and reservation shall be effected the same way as explained above.

16. INTER SE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF DIRECT RECRUITMENT:

(a) Reservation for each of the three categories of persons with disabilities shall be made. separately, But if the nature of vacancies in an establishment is such that a person of a specific category of disability cannot be employed, the vacancies may be interchanged among the three categories with the approval of the Ministry of Social Justice & Empowerment and reservation may be determined and vacancies filled accordingly. -

(b) If any vacancy reserved for any category of disability cannot be filled due to non-availability of a suitable person with that disability or, for any other sufficient reason, such vacancy shall not be filled and shall be carried forward as a 'backlog reserved vacancy' to the st7requeriTrecruitment year.

(c ) In the subsequent recruitment year the 'backlog reserved vacancy' shall be treated as reserved for the category of disability for which it was kept reserved in the initial year of recruitment. However, if a suitable person with that disability is not available, it may be filled by interchange,among the three categories of disabilities. In case no suitable person with disability is available for filling up the post in the subsequent year also, the employer may fill up the vacancy by appointment of a person other than a person with disability. If the

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vacancy is filled by a person with disability of the category for which it was reserved or by a person of other category of disability by inter se exchange in the subsequent recruitment year, it will be treated to have been filled by reservation. But if the vacancy is filled by a person other than a person with disability in the subsequent recruitment year, reservation shall be carried forward for a further period upto two recruitment years whereafter the reservation shall lapse. In these two subsequent years, if situation so arises, the procedure for filling up the reserved vacancy shall be the same as followed in the first subsequent recruitment year.

17. In order to ensure that cases of lapse of reservation are kept to the minimum, any recruitment of the disabled candidates shall first be counted against the additional quota brought forward from previous years, if any, in their chronological order. If candidates are not available for all the vacancies, the older carried forward reservation would be filled first and the relatively later carried forward reservation would be further carried forward.

18. CONSIDERATION ZONE, INTERSE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF PROMOTION

(a) While filling up the reserved vacancies by promotion by selection, the disabled candidates who are within the normal zone of consideration shall be considered. for promotion. Where adequate number of disabled- candidates of the appropriate category of handicap are not availalale within the normal zone, the zone of consideration may be extended to five times the number of vacancies and the persons with disabilities falling within the extended zone may be considered. In the event of non availability of candidates even in the extended zone, the reservation can be exchanged so that post can be filled by a person with other category of disability, if possible. If it is not possible to fill up the post by reservation, the post may be filled by a person other than a person with- disability- and the reservation shall be carried forWard for upto three subsequent recruitment years, whereafter it shall lapse.

(b) In posts filled by promotion by non-selection, the eligible candidates with disabilities shall be considered for promotion against the reserved vacancies and in case no eligible candidate of the appropriate category of disability is available, the vacancy can be exchanged with other categories of disabilities identified for it. If it is not possible to fill up the post by reservation even by exchange, the reservation shall be carried forward for upto three subsequent recruitment years whereafter it shall lapse.

19. IIORIZONTALITY OF RESERVATION FOR PERSONS WITH DISABILITIES: Reservation for backward classes of citizens (SCs, STs and OBCs) is called vertical reservation and the reservation for categories such

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as persons with disabilities and ex-servicemen is called horizontal reservation. Horizontal reservation cuts across vertical reservation (in what is called inter-locking reservation) and persons selected against the quota for persons with disabilities have to be placed in the appropriate category viz. SC/ST/OBC/General candidates depending upon the category to which they belong in the roster meant for reservation of SCs/STs/OBCs. To illustrate, if in a given year there are two vacancies reserved for the persons with disabilities and out of two persons with disabilities appointed, one belongs to a Scheduled Caste and the other to general category then the disabled SC candidate shall be adjusted against the SC point in the reservation roster and the general candidate against unreserved point in the relevant reservation roster. In case none of the vacancies falls on point reserved for the SCs, the disabled candidate belonging to SC shall be adjusted in future against the next available vacancy reserved for SCs.

20. Since the persons with disabilities have to be placed in the appropriate category viz. SC/ST/OBC/ General in the roster meant for reservation of SCs/STs/OBCs, the application form for the post should require the candidates applying under the quota reserved for persons with disabilities to indicate whether they belong to SC/ST/OBC or General category.

21. RELAXATION IN AGE LIMIT : (i) Upper age limit for persons with disabilities shall be relaxable (a) by

ten years (15 years for SCs/STs and 13 years for OBCs) in case of direct recruitment to Group 'C' and Group 'D' posts; (b) by 5 years (10 years for SCs/STs and 8 years for OBCs) in case of direct recruitment to Group 'A' and Group 'B' posts where recruitment is made otherwise than through open competitive examination; and (c). by 10 years (15 years for SCs/STs and 13 years for OBCs) in case of direct recruitment to Group A and Group 13 posts through open competitive examination.

(ii) Relaxation in age limit shall be applicable irrespective of the fact whether the post is reserved or not, provided the post is identified suitable for persons with disabilities.

22. RELAXATION OF STANDARD OF SUITABILITY: If sufficient number of persons with disabilities are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies re-served for persons with disabilities cannot be filled on the basis of general standards, candidates belonging to this category may be taken by relaxing the standards to make up

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the deficiency in the reserved quota subject to the fitness of these candidates for appointment to the post / posts in question.

23. MEDICAL EXAMINATION: As per Rule 10 of the Fundamental Rules, every new entrant to Government Service on initial appointment is required to produce a medical certificate of fitness issued by a competent authority. In case of medical examination of a person with disability for appointment to a post identified as suitable to be held by a person suffering from a particular kind of disability, the concerned Medical Officer or Board shall be informed beforehand that the post is identified suitable to be held by persons with disability of the relevant category and the candidate shall then be examined medically keeping this fact in view.

24. EXEMPTION FROM PAYMENT OF EXAMINATION FEE AND APPLICATION FEE: Persons with disabilities shall be exempt from payment of application fee and examination fee, prescribed in respect of competitive examinations held by the Staff Selection Commission, the Union Public Service Commission etc. for recruitment to various posts. This exemption shall be available only to such persons who would otherwise be eligible for appointment to the post on the basis of standards of medical fitness prescribed for that post (including any concession specifically extended to the disabled persons) and who enclose with the application form, necessary certificate from a competent authority in support of their claim of disability.

25. NOTICE OF VACANCIES : In order to ensure that persons with disabilities get a fair opportunity in consideration for appointment to an identified post, the following points shall be kept in view while sending the requisition notice to the Employment Exchange, the SSC, the UPSC etc. and while advertising the vacancies:-

(i) Number of vacancies reserved for SCs/STs/OBCs/Ex-Servicemen/ Persons suffering from Blindness or Low Vision/Persons suffering from Hearing Impairment/Persons suffering from Locomotor Disability or Cerebral Palsy should be indicated clearly.

(ii) In case of vacancies in posts identified suitable to be held by persons with disability, it shall be indicated that the post is identified for persons with disabilities suffering from blindness or low vision; hearing impairment; and/or locomotor disability or cerebral palsy, as the case may be, and that the persons with disabilities belonging to the category/categories for which the post is identified shall be allowed to apply even if no vacancies are reserved for them. Such candidates will be considered for selection for appointment to the post by general standards of merit.

(iii) In case of vacancies in posts identified suitable for persons with disabilities, irrespective of whether any vacancies are reserved or

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(iv) not, the categories of disabilities viz blindness or low vision, hearing impairment and locomotor disability or cerebral palsy, for which the post is identified suitable atongwith functional classification and physical requirements for performing the duties attached to the post shall be indicated clearly.

(v) It shall also be indicated that persons suffering from not less than 40% of the relevant disability shall alone be eligible for the benefit of reservation.

26. CERTIFICATE BY REQUISITIONING AIITHORITY : In order to ensure proper implementation of the provisions of reservation for persons with disabilities, the requisitioning authority while sending the requisition to the UPSC, SSC etc. for filling up of posts shall furnish the following certificate to the recruiting agency:-

"It is certified that the requirements of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 and the policy relating to reservation for persons with disabilities has been taken care of while sending this requisition. The vacancies reported in this requisition fall at points no. of cycle no. of 100 point reservation roster out of which number of vacancies are reserved for persons with disabilities."

27. ANNUAL REPORTS REGARDING REPRESENTATION OF PERSONS WITH DISABILITIES (1) Soon after the first of January of every year, each appointing authority shall send to its administrative Ministry/Department:-

(a) PWD Report-I in the prescribed proforma (Annexure III) showing the total number of employees, total number of employees in the posts which have been identified suitable for persons with disabilities and number of employees suffering from blindness or low vision, hearing impairment, and locomotor disability or cerebral palsy as on the lst January of the year, and

(b) PWD Report-II in the prescribed proforma (Annexure IV) showing the number of vacancies reserved for persons suffering from blindness or low vision, hearing impairment, and locomotor disability or cerebral palsy and number of such persons actually appointed during the preceding calendar year.

(ii) The administrative Ministry/Department shall scrutinize the information. received from all appointing authorities under it and send consolidated PWD Report-I and PWD Report- II in prescribed proformae in respect of the Ministry/Department including information in respect of all attached and

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subordinate offices under its control to the Department of Personnel and Training by the 31S` March of each year.

(iii) The following points may be kept in view while sending the reports to the Department of Personnel & Training:-

(a) The reports sent to the DOPT should not include information in respect of public sector undertakings, statutory, semi-Government and autonomous bodies. Statutory, semi-Government and autonomous bodies shall furnish consolidated information in the prescribed proforma to the administrative Ministry/Department concerned who may scrutinize, monitor and maintain it at their own level. The Department of Public Enterprises may collect similar information in respect of all public sector undertakings.

(b) The attached/subordinate offices shall send information to their administrative .Ministry/Department only and shall not send it direct to this Department.

(c) The figures in respect of persons with disabilities shall include persons appointed by reservation as well as appointed otherwise.

(d) The PWD Report 1 relates to persons and not to posts. Therefore, while furnishing this report the posts vacant etc. should not - be -taken into account. In this report persons on deputation should be included in the establishment of the borrowing Ministry/Department/Office and not in the parent establishment. Persons permanent in one grade but officiating or holding temporary appointment in the higher grade shall be included in the figures relating to the Class of service to which the higher grade belongs.

28. LIAISON OFFICER FOR PERSONS WITH DISABILITIES : Liaison Officers appointed to look after reservation matters for SCs/STs shall also work as Liaison Officers for reservation matters relating to persons with disabilities and shall ensure compliance of these instructions.

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29. All the Ministries/Departments are requested to bring the above instructions to the notice of all appointing authorities under their control.

(K.G. Verma) Deputy Secretary to the Govt. of India

To (i) All Ministries/Departments of the Govt. of India. (ii) Department of Economic Affairs (Banking Division), New Delhi (iii) Department of Economic Affairs (Insurance Division), New Delhi (iv) Department of Public Enterprises, New Delhi (v) Railway Board.

(vi) Public Service Commission/Supreme Court of India/ Election Commission/Lok Sabha Secretariat/ Rajya Sabha Secretariat! Cabinet Secretariat/Central Vigilance Commission/President's Secretariat/ Prime Minister's Office/Planning Commission.

(vii) Staff Selection Commission, CGO Complex, Lodi Road, New Delhi (viii) Office of the Chief Commissioner for Disabilities, Sarojini House, 6,

Bhagwan Das Road,New Delhi - 110 001 (ix) Office of the Comptroller & Auditor General of India, 10, Bahadur

Shah- -Zafar Marg, New Delhi. - (x) All Officers and Sections in the Ministry of Personnel, Public

Grievances and Pensions and all attached/subordinate offices of this Ministry.

(xi) Information and Facilitation Centre, DOPT, North Block, New Delhi.

(xii) 200 spare copies for Estt(Res)Desk.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9096 OF 2013 (Arising out of SLP (Civil) No. 7541 of 2009)

Union of India & Anr. Appellant(s)

Versus

National Federation of the Blind & Ors. Respondent(s)

JUDGMENT

P. Sathasivam,

1) Leave granted.

2) This appeal is directed against the final judgment and order

dated 19.12.2008 passed by the High Court of Delhi at New Delhi

in Writ Petition (C) No. 15828 of 2006 wherein the High Court

interpreted Section 33 of the Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act,

1995 (in short the Act') and issued various directions to be

complied with by the appellants herein.

Page 1

a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts, which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation."

47) Adhering to the decision laid by the Constitution Bench in

R.K Sabharwal (supra), the High Court held as follows:-

16. The Disabilities Act was enacted for protection of the rights of the disabled in various spheres like education, training, employment and to remove any discrimination against them in the sharing of development benefits vis-a-vis non-disabled persons. In the light. of the legislative aim it is necessary to give purposive interpretation to section 33 with a view to achieve the legislative intendment of attaining equalization of opportunities for persons with disabilities. The fact that the vacancy-based- roster is to be maintained does not mean that 3% reservation has to be computed only on the basis of vacancy. The difference between the posts and vacancies has been succinctly pointed out in the Supreme Court decision in the case of R.K . Sabharwal and Others vs state of Punjab and others AIR 1995 SC 1371 wherein it was held that the word "post" means an appointment, job, office or employment, a position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the vacancy to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which from the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation. Therefore, in our opinion, 3 % reservation for disabled has to be computed on the

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basis of total strength of the cadre i.e. both identified as well as unidentified posts...."

48) However, the decision in R.K Sabharwal (supra) is not

applicable to the reservation for the persons with disabilities

because in the above said case, the point for consideration was

with regard to the implementation of the scheme of reservation

for SC, ST & OBC, which is vertical reservation whereas

reservation in favour of persons with disabilities is horizontal. We

harmonize with the stand taken by the Union of India, the

appellant herein in this regard. Besides, the judgment in R.K

Sabharwal (supra) was pronounced before the date on which

the Act came into force, as a consequence, the intent of the Act

must be given priority over the decision in the above said

judgment. Thus, in unequivocal terms, the reservation policy

stipulated in the Act is vacancy based reservation.

Conclusion:

49) Employment is a key factor in the empowerment and

inclusion of people with disabilities. It is an alarming reality that

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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.

50) The Union of India, the State Governments as well as the

Union Territories have a categorical obligation under the

Constitution of India and under various International treaties

relating to human rights in general and treaties for disabled

persons in particular, to protect the rights of disabled persons.

Even though the Act was enacted way back in 1995, the disabled

people have failed to get required benefit until today.

51) Thus, after thoughtful consideration, we are of the view 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

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iS-"/

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.

52) Further, the reservation for persons with disabilities has

nothing to do with the ceiling of 50% and hence, Indra Sawhney

(supra) is not applicable with respect to the disabled persons.

53) We also reiterate that the decision in R.K. Sabharwal

(supra) is not applicable to the reservation for the persons with

disabilities because in the above said case, the point for

consideration was with regard to the implementation of the

scheme of reservation for SC, ST & OBC, which is vertical

reservation, whereas reservation in favour of persons with

disabilities is horizontal.

Directions:

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54) In our opinion, in order to ensure proper implementation of

the reservation policy for the disabled and to protect their rights,

it is necessary to issue the following directions:

(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

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strict implementation of reservation for person with disabilities, be

departmentally proceeded against for the default.

55) Before parting with the case, we would like to place on

record appreciation for Mr. S.K Rungta, learned senior counsel for

rendering commendable assistance to the Court. The appeal is

disposed of with the above terms.

CJI (P. SATHASIVAM)

J (RANJANA PRAKASH DESAI)

J (RANJAN GOGOI)

NEW DELHI; OCTOBER 08, 2013.

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