position. In fact, subsequently, Mr. Kaul,
himself, when he appeared on 16.12.2015, came
forward to examine the legal position in the light
of Three-Judge Bench decision of this Court in
Union of India and Another v. National Federation
of the Blind and Others, reported in (2013) 10 SCC
772.
Today, when this appeal was heard, the learned
Additional Solicitor General fairly pointed out
the ratio laid down by this Court as set out in
paragraph 30, which reads as under:-
“30. The question for determination raised in this case is whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32. In Ravi Prakash case, the Government of India sought to contend that since they have conducted the exercise of identification of posts in civil services in terms of Section 32 only in the year 2005, the reservation has to be computed and applied only with reference to the vacancies filled up from 2005 onwards and not from 1996 when the Act came into force. This Court, after examining the JUDGMENT inter-dependence of Sections 32 and 33 viz., identification of posts and the scheme of reservation, rejected this contention and held as follows:-
“25. …The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter
to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Groups A and B posts in the I.A.S. was undertaken after the year 2005 is not of much substance.
26. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Groups A, B, C and D posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said Section, having regard to the type of work carried on in any department or establishment. No such JUDGMENTexemption has been pleaded or brought to our notice on behalf of the petitioners.
27. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purpose of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of
Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment.
Xxx xxx
29. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the JUDGMENT Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of
the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.
31. We, therefore, see no reason to interfere with the judgment of the High Court impugned in the Special Leave Petition which is, accordingly, dismissed with costs. All interim orders are vacated. The petitioners are given eight weeks’ time from today to give effect to the directions of the High Court.”
Having regard to the said authoritative JUDGMENT pronouncement by this Court that 3% reservation
for differently abled persons will have to be
computed on the basis of total vacancies of the
cadre and not on the basis of the vacancies
available in the identified post, namely, at the
time of notification calling for applications to
fill up the available vacant vacancies, it is
imperative for the High Court to examine the said
position by applying the various deliberations and
reasoning drawn in the above decision of this
Court and also by calling upon the parties, in
particular, the respondents herein to furnish the
details as regards the cadre strength and the
available vacancies, if any, to be provided for in
the respective reserved posts. In the light of
above judgment, based on such additional
information to be furnished by the respondents as
well as any information to be furnished on behalf
of the appellant, it will be appropriate for the
Division Bench to come to a definite conclusion, whether or not the appellant will be entitled for
any relief to be granted in the writ petition.
Therefore, while setting aside the impugned
judgment, remit the case back to the High Court
for deciding the writ petition afresh, in the
light of the judgment of this Court referred to
above.
With the above observations and directions,
the appeal stands disposed of.
[Fakkir Mohamed Ibrahim Kalifulla]
[S.A. Bobde] New Delhi;
April 27, 2016