Reservation For Persons With Disabilities: Gujarat HC Notes "Misunderstanding" In Chief Secretary's Mind On Implementation of Relevant Laws

While hearing a PIL petition for implementing the mandate of the Rights of Persons with Disabilities (RPwD) Act 2016 as well as an earlier law, concerning reservation for persons with disabilities in government establishments, the Gujarat High Court noted the "clear misunderstanding" in the mind of the state's Chief Secretary on the laws' implementation. It also noted that the manner in which the vacancies were calculated and the details of the recruitment exercise undertaken in certain years, showed the complete lack of understanding concerning reservation, for implementing the relevant laws. The court thereafter cautioned the Chief Secretary to be mindful while making a statement of oath.A division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi was hearing a PIL plea seeking full and effective implementation of the RPwD Act, 2016 specifically Section 34–for providing reservation in every government establishment. It also sought implementation of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 so as to implement the directions contained in Supreme Court's 2013 judgment in Union of India and Another vs. National Federation of the Blind and Others. The court in its October 4 order noted the Chief Secretary's affidavit which stated that on an "inquiry it was transpired that any vacancy, which has not been subjected to complete process of selection even though vacant, cannot be treated as a backlog vacancy". The affidavit said that the factum of number of posts that have been advertised for recruitment till date has to be considered based on which the the number of vacant posts (category-wise vacancies) reserved for persons with disabilities is to be arrived at. It said that the whole exercise is to be carried out afresh. The court was told that in the peculiar circumstance, the State Government has already initiated the fresh exercise for computation of the posts to be filled for the persons with disabilities in each department including the public sector undertaking/government sector of the State.Posts that remained vacant were fewPointing to its affidavit the State submitted that the benefit of reservation as prescribed under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1955 has been applied in Gujarat for the recruitment undertaken in consonance with the notification of February 19, 2020. It was submitted that reservations as per the RPwD Act 2016 has been applied in Gujarat in consonance with the Government Resolution of September 17, 2021."It is, thus, sought to be submitted that those posts which remained vacant as a result of the implementation of the reservations rules, are only few and the column 6C of the table, as referred in the affidavit, shows the number of posts that are required to be filled up in the subsequent recruitment exercises undertaken by the respective government departments are actually zero against most of the posts," the order notes.Meanwhile the senior advocate SK Rungta appearing for the petitioner–National Federation of the Blind, confronted the stand of the Chief Secretary and the chart appended with his affidavit.Clear misunderstanding in Chief Secretary's mind on implementation of the lawThe high court thereafter said, "On a query made by the Court from the learned Advocate General about the computation made in the chart, it became clear that there was a clear misunderstanding in the mind of the Chief Secretary of the Government of Gujarat in the matter of implementation of the Act, 1955 and the Act, 2016. The manner in which the calculation has been done and the details provided with respect to the recruitment exercise undertaken from 2000 to 2020 and after 17.09.2021 when the State has decided to implement the Act, 1995 and Act, 2016 respectively, shows that there is complete lack of understanding in the matter of reservation for implementation of both the enactments".The high court said that there is a requirement of computing backlog vacancies which are to be filled in a particular recruitment year after the enforcement of the 1995 Act which could not be filled "because of the apathy of the State Government".There is also a requirement of computation of backlog vacancies as per the RPwD Act 2016, which the court noted, has been implemented after 5 years from its enactment.Identifying vacancies for reservation under the law a legislative mandate"The identification of vacancies for reservation under the Act, 1995 and the Act, 2016 was Legislative mandate of the Parliamentary Legislation, which was enacted to give effect to the Proclamation on the Full Participation and the Equality of the People with Disabilities in the Country. The Act, 2016 has been brought into force to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for the matters connected there with and incidental thereto. Moreover, the...

Reservation For Persons With Disabilities: Gujarat HC Notes "Misunderstanding" In Chief Secretary's Mind On Implementation of Relevant Laws

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