3 percent quota for persons with disabilities can't be sub-classified: Gauhati High Court

The Gauhati High Court on Monday reiterated that the government has a statutory obligation to provide 3 percent reservation for persons with disabilities and to ensure that the same are filled up only by persons with disability [Saidur Rahman vs State of Assam and ors]..Justice Suman Shyam said that there should be no sub-classification of such reserved posts based on caste or religion."Government would not only have a statutory obligation to identify posts which can be reserved for persons with disability but would also have to earmark such vacancies, not less than 3%, for being filled up only by persons with disability. Such mandate of the statute is dehors any sub-classification and over and above any reservation based on caste, creed and religion," the single-Judge observed. The Court noted that India's legal commitment towards providing equal opportunities for person with disabilities (PwD) comes from being a signatory to the Beijing Declaration.The Court, therefore, ruled that the respondents could not have refused to consider the candidature of the petitioner as a candidate belonging to the PwD category, specially in the absence of other contenders. .The present petition was filed after the applicant, suffering from a more than 60 per cent hearing impairment, was aggrieved by the non-inclusion of his name in the shortlist for appointment as a veterinary officer. There were four vacancies available at the time, appointment for which was made only against one. The plea sought a writ of mandamus directing the respondents to appoint him against the quota reserved for PwD. The petitioner had earlier filed a writ petition in the same matter, which led to another single-judge asking the Assam Public Service Commission (ASPC) to furnish reasons as to why his candidature was rejected.The APSC had then stated the petitioner was not eligible for the PwD reservation since as per their notification as he did not belong to OBC, MOBC or ST(H) categories. Aggrieved, the petitioner once again moved the High Court by way of the present petition. .The counsel for the petitioner cited the Supreme Court decision in Mahesh Gupta & Ors. Vs. Yashwant Kumar Ahirwar & Ors to argue that the law is firmly settled that further reservation amongst the disabled on the basis of caste, creed or religion is impermissible. The petitioner fulfilled the requisite criteria mentioned in the advertisement notice and therefore, regardless of the caste to which he belongs to, he is eligible for the said vacancy, it was submitted. While the counsel for the APSC said it did not have an independent stand in the matter, the counsel for the State conceded to the law laid out in the case law cited by the petitioner. .The Court noted that there was no doubt about the petitioner being specially-abled, and his consequent entitlement to the benefit of reservation meant for PwD." ... this Court is of the unhesitant opinion that having reserved four vacancies to be filled up by PWD candidates and having permitted the General Category candidates to participate in the recruitment process, there was no scope for the authorities to further reserve those four vacancies in PWD category to be filled up only by candidates belonging to OBC/ MOBC or ST(H) category," the order stated. The single-Judge noted how 3 of the vacancies could not be filled since no PwD candidate belonging to OBC/ MOBC/ ST(H) was available. This fact made it evident that even if the petitioner was recommended for appointment as a vet against one of the three vacancies, the same would not cause prejudice to any candidate belonging to OBC/MOBC/ ST(H), the Court observed. The APSC had not been able to state why such a recourse was not taken, the judge said. As per persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995, adopted as part of fulfilling commitments to the Beijing Declaration, there is a duty upon the State and its instrumentalities to reserve posts for PwD, the Court noted. "The Act of 1995 does not make any discrimination amongst the persons with disabilities on the basis of caste, creed and religion in the matter of opportunities of employment," the Court underscored. The Court, therefore, allowed the petition and held that the APSC's notification was "unsustainable in law" and set it aside. The respondents were directed to consider and dispose of the case of the petitioner for appointment as sought, within 60 days. .Senior Advocate KN Choudhury, and advocate J Kalita appeared for the petitioner. Additional Advocate-General PN Goswami and Standing Counsel K Konwar represented the respondents. [Read Judgment]