Source: Gujarat High Court 

Why in News?

A bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi held that the Government should undo the wrong and provide reservation to persons with disabilities.         

• The Gujarat High Court held this in the case of National Federation of the Blind v. The State of Gujarat & Anr. 

What was the Background of National Federation of the Blind v. The State of Gujarat & Anr. Case? 

• The present Public Interest Litigation has been filed with the sole objective of implementation of the following: 
  • Rights of Persons with Disabilities Act, 2016 (RPWD Act) specially Section 34 of the RPWD Act.
  • Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act) 
  • The directions passed by the Apex Court in the Union of India and Another v. National Federation of the Blind and Others (2013) delivered on 8th October 2013. 
• The petitioner in this case alleged that the Apex Court had interpreted Section 33 of the PWD Act as that every Appropriate Government has to appoint minimum 3% vacancies in an establishment out of which 1% are reserved for people suffering from blindness and low vision, persons suffering from hearing impediment and persons suffering from locomotor disability or cerebral palsy. 
• Further, the Apex Court had held that the computation of reservation is against the total approved vacancies in the cadre strength and not against the notified posts. 
• With the enactment of the RPWD Act the reservation has been increased from 3% to 4% and two more benchmark disabilities have been included. 
• Further, the carry forward principle was also added under Section 34 of the Act. 

What were the Court’s Observations?  

• In the State of Gujarat, the 1995 Act was implemented only in the year 2000 and there was no reservation in compliance of Section 33 of the 1995 Act between the years 1996 to 2000. Also, the Act of 2016 was implemented in 2021. 
• The Court observed that there was a misunderstanding in the mind of the Chief Secretary of the Government of Gujarat in the matter of implementation of 1995 Act and 2016 Act. 
• The Court held that the provisions of the Act were to be applied forthwith as non-implementation of the Act would result in deprivation of benefit of reservation to the persons with disabilities in the State of Gujarat.  
• The Learned Advocate General appearing for the State gave assurance to the Court that the State Government was committed to implementing both the above-mentioned Acts.  
• The Learned Advocate General has assured the Court that the State would coordinate with the Department of Personnel and Training, Government of India and would find a solution to rectify the situation by computing the backlog vacancies and preparing a plan for holding Special recruitment drive. 
• The matter is further posted on 22nd November 2024.

What are the Different Kinds of Reservations ?

• In the case of Indra Sawhney v. Union of India (1992) the Constitution Bench of the Supreme Court held that there are two types of reservations:  
  • Horizontal Reservations  
  • Vertical Reservations   
• Vertical Reservations: 
  • They are the highest form of special provisions intended exclusively for members of backward classes SC, ST and OBC.  
  • The positions secured by members of these classes on the basis of their merit and are not counted against vertically reserved positions.  
  • They cannot exceed 50%.  
• Horizontal Reservations:  
  • They are lesser form of special provisions and are intended for other disadvantaged citizens (like disabled, women etc).  
  • Adjustments through them cannot interfere with the seats vertically reserved for backward classes.

What are the Provisions Concerning Reservation with Respect to Persons with Disabilities? 

• Right of Persons with Disabilities Act, 2016 
  • Section 32: 
    • This provision provides for Reservation in Higher Educational Institutions. 
    • It provides that all the Government Institutions (including those receiving aid from the Government) of higher education shall reserve not less than 5% seats for person with benchmark disabilities. 
  • Section 33: 
    • This provision provides that the Appropriate Government shall identify posts in the respective category that should be provided reservation. 
  • Section 34 
    • Clause (1) provides that every Appropriate Government shall appoint in every Government establishment not less than 4% of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities. 
    • 1% of the above posts shall be reserved for persons falling under following categories: 
      • Blindness and low vision 
      • Deaf and hard of hearing 
      • Locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy 
    • Further, 1% shall be reserved for the following: 
      • Autism, intellectual disability, specific learning disability and mental illness. 
      • Multiple disabilities from amongst persons under clauses (a) to (d) (mentioned above) including deaf-blindness in the posts identified for each disabilities. 
    • Clause 2 of Section 34 provides for the rule of carry forward in case there are unfulfilled posts. 
    • Clause 3 of Section 34 provides that there can be relaxation of upper age limit for employment of persons with benchmark disability. 
• Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act) 
  • Section 32: 
    • Section 32 provides that the Appropriate Government shall 
      • Identify posts, in the establishments, which can be reserved for the persons with disability 
      • At periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology. 
  • Section 33 
    • Section 33 provides for percentage of reservation to granted to the persons suffering from the disabilities mentioned therein. 
    • Every appropriate Government shall appoint in every establishment such a percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from- 
      • Blindness or low vision; 
      • Bearing impairment; 
      • Loco motor disability or cerebral palsy, in the posts identified for each disability: 
    • Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. 
• Section 39: 
  • All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seat for persons with disabilities. 
• Section 40: 
  • The appropriate Governments and local authorities shall reserve not less than three per cent. in all poverty alleviation schemes for the benefit of persons with disabilities.