National Federation of the Blind v. Kendriya Vidyalaya Sangathan & Ors.

30. The respondent has not only failed to calculate the reserved vacancies as per law but has also sought to justify the failure to reserve 4 percent vacancies by referring to the aforesaid O.M. However, contrary to the O.M., no exemption from mandatory reservation of 4 percent has been sought by the respondent. Therefore, the respondent was bound to conduct computation of reservation in accordance with Clause-6 of the aforesaid O.M.

31. In order to exclude the post of Principal, the respondent has relied upon the notification no. 16-15/2020-DD-III dated 29.07.2013 issued by Ministry of Social Justice and Empowerment, Government of India, whereby certain posts were identified as suitable for reservation for the persons with disabilities. The said list of posts was released by the Ministry as a guiding principle for the government establishments while providing statutory reservation to the persons with disabilities. It was done in accordance with Section-33 of the 2016 Act which empowers the appropriate government to conduct the exercise of identification of posts to be reserved under Section-34. One of the key purposes of the said list was also to ensure that different government establishments do not implement the statutory mandate at their own whims and fancies. In other words, the list was meant to preclude a situation wherein the same post is reserved by one department and is excluded by the other. Importantly, in the said list, the post of Principal was identified as a suitable post for persons with disabilities i.e. an identified post.

32. In the aftermath of the publication of this list, the respondent constituted its own Committee which did a bifurcation of the list. After bifurcation, the list was split into two categories – posts suitable for reservation and posts not suitable for reservation. As per this bifurcation, the respondent excluded the post of Principal from the list of identified posts for persons with visual disability. The said exclusion also reflected in the impugned advertisement, thereby giving cause for this litigation.

33. However, as discussed above, the primary function of identification of posts is of the appropriate government, as per Section-33 of the Act. There is no power with the respondent or its committee to revisit and cut short the list notified by the government. The process of identification or its review is to be carried out by the appropriate government only. Further, the said exercise is to be carried out after constitution of an expert committee with due representation of persons with benchmark disabilities. Furthermore, the list is to be reviewed after every three years in accordance with the same procedure. The appropriate government in the present case is the Central Government and as per the mandate of Section-33, the Central Government completed the exercise of identification in accordance with law. The said exercise culminated in the form of a list of identified posts.

34. Once certain posts are identified, the government establishments bound by it shall mandatorily reserve the vacancies against the identified posts. No doubt, in addition to the posts identified by the appropriate government, the establishments may identify more posts if found suitable at their own level. However, the posts already identified under Section-33 could not be excluded by any establishment, except in accordance with 2nd proviso to Section-34. There is no other method which could lead to the exclusion of any post which has been identified for reservation by the appropriate government. As noted by us in the discussion on legislative scheme, such exclusion could only be carried out on the basis of the nature of work and by the appropriate government only. Furthermore, it could only be done after consultation with the Chief Commissioner appointed under the 2016 Act and through a notification. Therefore, the respondent Sangathan, which is an establishment under the Central Government, could not have excluded the post of Principal from the list of identified posts, except in accordance with the procedure discussed herein. In this case, the exclusion was carried out by a resolution of the respondent after a meeting of a Committee. The respondent establishment failed to comply with the procedure and went on to exclude the said post without any consultation and without any notification by the appropriate government. The said procedure is unknown to the scheme of 2016 Act. The respondent or the Committee of the respondent exercised a power which never vested in it.

35. We may usefully note that the power of identification of posts is bound by a procedure which, amongst other things, involves consultation with experts including persons with disabilities. The persons with disabilities are the direct stakeholders in this exercise and the legislature has aptly carved out a provision for a consultative exercise with such persons. It is manifestation of the principles of natural justice and there can be no deviation from the statutory procedure. Exclusion of a post, without engaging in a consultative exercise, shall also be violative of the principles of natural justice.

36. It is a settled rule of interpretation that when the manner of performance of an act is prescribed by law, the 2016 Act in this case, such act is to be performed in that manner only, or not at all. In State of U.P. v. Singhara Singh10, the Hon’ble Supreme Court, relying upon the landmark decision in Taylor v. Taylor11, laid down the principle of law in the following words:

40. In light of the above discussion, it is certain that the power of identification as well as exemption of posts from the statutory mandate of reservation vested only with the appropriate government and not with the respondent establishment. Accordingly, the act of exclusion of the post of Principal cannot be sustained and is accordingly, set aside.

41. We may regretfully note that despite the passage of almost four decades of the movement, one United Nations’ Convention and two legislations passed by the Parliament, we are struggling to fulfil our promises made to the persons with disabilities as our fellow citizens. The journey so far has tried to achieve twin objectives – fulfilment of constitutional promises and reformation of mindsets. However, every now and then, seemingly settled issues resurface in the recruitments opened by different departments or by different governments. Every time a judicial forum is asked to revisit and reiterate the same principles, that too for the protection of the vulnerable sections, it only reflects a status quoist approach on the part of the departments and establishments. The legislature has taken a commendable leap with the enactment of 2016 Act, but 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”.

42. The 2016 Act defines “discrimination” as any form of distinction, restriction or exclusion on the basis of disability, which has the effect of nullifying the enjoyment of human rights and fundamental freedoms at par with others. Interestingly, the definition incorporates both direct as well as indirect discrimination. Recently, in Nitisha v. Union of India13, Hon’ble Supreme Court of India, speaking through D.Y. Chandrachud J., engaged in a comprehensive and eloquent discussion on the concepts of direct and indirect discrimination. After a comparative analysis of the prevailing jurisprudence in various jurisdictions such as United States, United Kingdom, Canada and South Africa, the Court evolved a framework of indirect discrimination in India. It observed that discrimination is not always a result of conscious design or malicious intent to discriminate, rather, it may be an outcome of implicit biases. Indirect discrimination may also result from an inability to acknowledge how existing practices may have the consequence or effect of upholding a discriminatory status quo. The relevant observations read thus: ―F.6. Evolving an analytical framework for indirect discrimination in India

70. A study of the above cases and scholarly works gives rise to the following key learnings. First, the doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious/implicit biases or an inability to recognise how existing structures/institutions, and ways of doing things, have the consequence of freezing an unjust status quo. In order to achieve substantive equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited. The Court further observed that the “intention effects distinction” could be a sound jurisprudential basis to distinguish direct and indirect discrimination. Whereas, the former is based on an intent to discriminate, the latter is concerned with the ultimate discriminatory effect of an act, irrespective of the intent behind the act. The relevant observations read thus:

71. Second, and as a related point, the distinction between direct and indirect discrimination can broadly be drawn on the basis of the former being predicated on intent, while the latter is based on effect (US, South Africa, Canada). Alternatively, it can be based on the fact that the former cannot be justified, while the latter can (UK). We are of the considered view that the intention effects distinction is a sound jurisprudential basis on which to distinguish direct from indirect discrimination. This is for the reason that the most compelling feature of indirect discrimination, in our view, is the fact that it prohibits conduct, which though not intended to be discriminatory, has that effect. As the Canadian Supreme Court put it in Ontario HRC [Ontario Human Rights Commission v. Simpsons Sears Ltd., 1985 SCC OnLine Can SC 75, requiring proof of intention to establish discrimination puts an ―insuperable barrier in the way of a complainant seeking a remedy‖. [Ontario Human Rights Commission v. Simpsons Sears Ltd., 1985 SCC OnLine Can SC 75, para 14. It is this barrier that a robust conception of indirect discrimination can enable us to counteract‖ The above analysis authoritatively holds that the concept of indirect discrimination intends to prohibit any conduct which has the “effect” of discrimination, even if it was not intended so. The distinction is relevant in light of the definition of “discrimination” under Section-2 of the 2016 Act, as noted above. The usage of the word “effect” in Section-2 indicates that the Act is not only intended to curb direct discrimination, but is equally intended to prohibit any indirect discrimination which may result from inherent or institutional bias, stereotypes or a status quoist approach. 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.

43. 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. It may be noted that an act of discrimination is not only a denial of the promise of equal protection before the law. Rather, every act of exclusion is an assault on the dignity of a person. More so, when the exclusion has the effect of compelling the persons with disabilities out of a race for gaining employment, without any fault of theirs. 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.

44. In light of the above discussion, we find the advertisement to be unsustainable. It is discriminatory and violative of the 2016 Act read with 2017 Rules. Accordingly, we issue the following directions: i. The respondent shall conduct an audit of the total number of vacancies in the establishment and shall prepare a vacancy based roster as per Rule-11 of the 2017 Rules within 3 months from the date of this order. The respondent shall file an affidavit of the same along with a timeline of recruitment for filling the said vacancies; ii. 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. Such vacancies shall be deemed to be unfilled and accordingly, shall be considered to have been carried forward from the vacancies notified in the impugned advertisement; iii. The respondent shall implement the 4 percent reservation strictly in accordance with Section-34, with minimum one percent to be earmarked for the categories listed at clauses (a), (b), (c), (d) and (e) in Section-34; iv. The respondent shall 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; v. 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; vi. 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; vii. The respondent shall reserve the post of Principal for persons with benchmark disabilities in blind or low vision category at a minimum of one percent for that particular category; viii. No deviation from the statutory rule or exclusion of any post shall be made, except in accordance with the exemption clause and after proper notification by the appropriate government;

45. In light of these directions, we dispose of the petition. No order as to costs.

46. We express our thanks to Ld. Counsels for the parties for their able assistance in the matter. (SATISH CHANDRA SHARMA)

CHIEF JUSTICE

(SANJEEV NARULA) JUDGE