Can't Allow Fraudsters To Take Advantage Of Reservations For Differently Abled Candidates: Madhya Pradesh High Court Proposes 3-Tier Scrutiny For PwD Category

The Madhya Pradesh High Court has proposed constituting a three-tier scrutiny system for issuing disability certificates to candidates seeking public employment.

A single-judge bench of Justice Vivek Agarwal was hearing a plea filed by the National Federation Of The Blind (MP) against the dismissive attitude of the state government in appointing visually impaired persons as per statutory requirements.

“…It is also expected from the State that they will not permit any fraudester to take advantage of the provisions for reservation of differently-abled persons by misrepresenting themselves to be either visually impaired, hearing impaired or orthopedically handicapped or with other disabilities and they will ensure a three-tier system for scrutiny of such differently-abled persons so that one Doctor may not be sufficient to issue a certificate”, the bench sitting at Jabalpur held.

The court has mandated that after a candidate gets selected, there will be a District Level Committee in the District Hospital to issue a disability certificate on the first level. The certificate so issued will be scrutinised at the Divisional level by a separate team for verification. On the third level, these two certificates will be jointly verified at the level of Government Medical College catering to the concerned Districts and Divisions.

Justice Vivek Agarwal also emphasised that the state is dutybound to work out the backlogs in appointments that have occurred since 1996 and fill the vacancies according to the percentages stipulated for each category, keeping in mind that 'horizontal reservation' applies to Persons with Disabilities (PwD). Even reservations in promotions cannot be denied to PwD, the court observed by referring to Reserve Bank of India & Ors. Vs. A.K. Niar & Ors. (2023) Live Law (SC) 521.

“….Hon'ble Supreme Court has drawn the distinction between 'Vertical' reservations for backward classes of citizens…and 'Horizontal' reservations for persons with disabilities…holding that ceiling of 50% reservation applies only to reservation in favour of other Backward classes under Article 16(4) of the Constitution of India whereas the reservation in favour of persons with disabilities is horizontal, which is under Article 16(1) of the Constitution”, the court clarified by referring to Union of India & another v.. National Federation of the Blind & Ors. (2013)10 SCC 772.

Facts

According to Section 33 of the Persons With Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, and the subsequent notification issued by the state government in 2001, visually impaired persons were entitled to 2% reservation out of the 6% earmarked for differently-abled persons. 

A plea was filed before the High Court for implementation of the policy,  and thereafter, when the state refused to adhere to the directions issued, the High Court also issued a slew of directions in a contempt petition from 2013.

Soon thereafter, in 2013, the Government of India issued an office memorandum after incorporating the gist of the landmark judgment in Union of India & Another v. National Federation of Blind & Ors.(2013). The office memorandum required the "appropriate Government" to compute the number of vacancies available in all the "establishments" and further identify the posts for disabled persons within three months.

Later, with the promulgation of the Rights of Persons with Disabilities Act, 2016, new categories were added to the types of disabled persons due to which the quota of visually impaired persons was altered to 1.5% out of 6 % allotted for PwD, as per the office memorandum dated 03.07.2018.

Court's Observations & Further Directions

The petitioner's counsel contended that the state did not grant reservation to the visually impaired as contemplated in the 2001 notification; the state justified the same by saying that there was no recruitment from 1996 to 2012.

On that point, the court agreed with the petitioner's counsel to hold that 'horizontal reservation' applies to PwD which makes them entitled to reservation even in any recruitments made for other reserved categories like Scheduled Castes, Scheduled Tribes or Other Backward Classes during this period.

From 2013-2018, 2922 posts were advertised as available in various departments for the differently abled. Out of this, 2056 posts were filled, leaving 866 posts vacant.

The counsel for the petitioner argued that proportionality stipulated in the memorandum about the allocation of available seats to each category of differently abled had not been followed.

State argued that an employer can exclude certain posts from the ambit of the reservation to a particular category. However, the petitioner replied that no specific notification had been issued by the Chief Commissioner or State Commissioner making any exemptions for certain posts.

About the instances of state machinery joining hands with fraudsters to fake disability, the court noted:

“…State will form District Medical Board, Regional Medical Board and State Level Medical Board for determining the disability and will also work out a mechanism to fix the responsibilities of the team of specialist that in case any variation of more than 5% is found in their certificate by the higher authority then they shall be responsible for issuing such incorrect certificate and will have to be dealt with in accordance with disciplinary rules in the routine course….”, the court added.

The court also pointed out that the state government, which is the 'appropriate government' as per Section 32 should identify the posts to be filled by PwD and conduct three-yearly reviews of the list prepared based on changes in technology and judicially recognised principles.

“…it is directed that the assessment of the vacancies for differently-abled persons will be identified on or before 05.03.2024 keeping in mind the advancement of technology and availability of advanced systems to aid and assist differently-abled persons in consultation with the Disability Commissioner. Necessary notification or advertisement by the concerned selection authority for filling up backlog of vacancies for persons with benchmark disabilities be issued within a further period of 30 days i.e. on or before 05.04.2024”, the court directed the state authorities.

Along with these stipulations, the single-judge bench has also made it clear that the selection process should be completed by 25.05.2024 (within 45 days) for PwD and results must be declared by 20.06.2024.

If the state were to make any lapses in the recruitment process (including appointment letters) that should ideally end by 15.07.2024, then the court will take adequate action for disobedience of the court orders, Justice Vivek Agarwal concluded.

Citation: 2024 LiveLaw (MP) 23

Counsel For Petitioner: S.K. Rungata - Sr. Advocate With Ashok Gupta Advocate

Counsel For Respondent State: Vivek Sharma - Dy. Advocate General

Case Title: National Federation of The Blind M P Branch v. State of Madhya Pradesh & Anr.

Case No: Writ Petition No. 7275 of 2019

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