The division bench of the Chief Justice Sanjeev Narula and Justice Satish Chandra Sharma said that the identified posts come into picture only after recruitment and only at the time of actual appointment. At the stage of recruitment and advertisement of vacancies, the respondent is duty bound to reserve 4 percent of the total number of vacancies, inclusive of vacancies against identified as well as unidentified posts. Once recruited, appointment can be made against the posts identified as suitable for respective categories of persons with disabilities. Even otherwise, it would be absurd to carry out calculation of 4 percent against identified posts only. In such a manner, the actual vacancies reserved for persons with disabilities would fall disproportionately short of the total number of vacancies and would never meet the 4 percent criteria, as envisaged. The same would defeat the mandate of the legislation. Therefore, identification under Section-33 is not a precondition for extending the benefit of reservation under Section-34 of the Rights of Persons with Disabilities Act 2016.
The bench noted that the respondent has calculated the reservation in a subject-wise manner in the advertisement i.e. after bifurcating the vacancies against different subjects within the same cadre and reserving against eligible/identified subjects only.
The court said that it may happen that at the time of appointment, the persons with disabilities appointed for any subject may exceed 4 percent. However, the same is permissible in law. Therefore, the respondent has failed to implement the reservation criteria as per Section-34 in the impugned advertisement and the same is set aside.
It was further noted 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.
The court held 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 court set aside the act of exclusion of the post of Principal.
“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,” the court said.