Gujarat HC observes a ‘misunderstanding’ in the mind of the chief secretary about the implementation of relevant laws

While hearing a PIL petition to implement the mandate of the Rights of Persons with Disabilities (RPwD) Act, 2016, as well as an earlier law, regarding reservation for persons with disabilities in government establishments, the Gujarat High Court point out the “clear misunderstanding” in the mind of the chief secretary of state about the implementation of the laws.

Likewise, he pointed out that the way vacancies were calculated and the details of the recruitment exercise carried out in certain years, highlighted the total lack of understanding regarding the reservation, for the application of the relevant laws. The court later warned the chief clerk to be alert while giving an affidavit.

A division bank of Chief Justice Sunita Agarwal and Justice Pranav Trivedi was hearing a PIL petition seeking full and effective implementation of the RPwD Act, 2016, specifically Section 34, to provide reservation in all government establishments. It also sought the implementation of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in order to implement the directions contained in the 2013 judgment of the Supreme Court 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 said that in a “of investigation it was found that any vacancy, which has not been subjected to a full selection process even if it is vacant, cannot be treated as a backlog vacancy.“.

The affidavit said that the number of posts advertised for recruitment till date should be considered against the number of vacant posts (category wise vacancies) reserved for persons with disabilities. He said the whole exercise has to be done again.

The court was informed that in the peculiar circumstance, the State Government has already started the new calculation exercise of the places to be filled for people with disabilities in each department including the company of the public sector/sector of the administration of the State.

Vacancies were few

Pointing to its affidavit, the State contended that the benefit of reservation, as laid down in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955, has been applied in Gujarat for the recruitment made in accordance with the notification of February 19. , 2020. It was submitted that the reservations under the RPwD Act, 2016 have been implemented in Gujarat as per Government Resolution dated 17th September, 2021.

“It is therefore intended to affirm that those jobs that were left vacant as a result of the application of the reservation rules are few and in column 6C of the table, as referred to in the affidavit, the number of posts to be filled in the subsequent recruitment exercises conducted by the respective government departments are actually zero with respect to most of the posts”, says the order.

Meanwhile, senior counsel SK Rungta, who appeared for the petitioner, National Federation of the Blind, confronted the stand of the chief secretary and the table attached with his affidavit.

Clear misunderstanding in the Chief Secretary’s mind about law enforcement

The high court then said: “In an inquiry made by the Court by the 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 to the Government of Gujarat in the matter of the application of the Act , 1955 and the Law of 2016. The way in which the calculation has been made and the data provided regarding the recruitment exercise carried out from the year 2000 to 2020 and after 17.09.2021 when the State has decided to apply the 1995 Act and the Act, 2016, respectively, shows that there is complete lack of understanding in the matter of reservation for the application of both the Acts.“.

The high court said there is a requirement to calculate the outstanding vacancies to be filled in a given recruitment year after the 1995 Act came into force which could not be filled “because of the “apathy of the State Government”.

There is also a requirement for calculation of pending vacancies under the RPwD Act, 2016, which the court noted, has been implemented after 5 years since its enactment.

Identification of vacancies for reservation under the law of a legislative mandate

“The identification of vacancies for reservation under the 1995 Act and the 2016 Act was a legislative mandate of the Parliamentary Legislation, which was enacted to give effect to the Proclamation on Full Participation and Equality of Persons with Disabilities in the country The 2016 Act has come into force to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for related and incidental matters. Further, the judgment of the Apex Court in National Federation of the Blind (supra) came on October 8, 2013. However, by not giving full effect to the Act, 2016 in the State of Gujarat, they invite the disregard of the decision of the Apex Court by the State Government. The requirement is to remedy the situation immediately.” stressed the bench.

During the hearing, Rungta drew the court’s attention to his order dated March 13 whereby the Chief Secretary was required to ensure the implementation of Section 34 of the RPwD Act by identifying cadre posts in each group of posts, intended to fill -se with people with reference disabilities.

The calculation of vacancies not carried out in accordance with the legal requirement

Pursuant to this order, the particulars from time to time were produced before the Court. However, Rungta attacked the data categorically stating that the calculation of cadre vacancies meant to be filled with reference disabled persons has not been done as per the requirement of RPwD Act.

It was argued that the categorical direction of the Supreme Court was that computation of reservation for persons with disabilities should be done in case of four groups of posts viz., Group ‘A’, ‘B’, ‘C’ . ‘ and ‘D’ identically, which means a reservation of 3% of the total vacancies in the cadre, according to the intention of the Legislature. It is clarified therein that the reservation for persons with disabilities has nothing to do with the 50% ceiling, as the said reservation is horizontal.

Considering that the PIL belonged to the “method” in which the Supreme Court’s 2013 directions were being implemented, the court said: “It is an admitted fact that in the State of Gujarat, the 1955 Act has been implemented only in the year 2000. There has been no reservation in pursuance of Section 33 of the 1955 Act between the years 1996 and 2000. In the same way, the 2016 Law was implemented only in 2021. The result is that 3% of the vacancies intended for people with disabilities in the establishments of the Generalitat were not filled with reservation out of the total number of vacant places . in the strength of the cadre in each group of places. The legislative mandate has not been executed. The question then is to fill the pending vacancies for the effective representation of persons with disabilities in the state of Gujarat to help them break the social and practical barriers and live their lives with dignity, overcome poverty and offer help to your family“.

Later it was suggested to the State to do so can count on the assistance of the Department of Personnel and Training of the Central Government, which since 2015 has carried out the exercise of calculating the pending vacancies.

The Advocate General appearing for the State Government assured the court that the government is committed to implement the RPwD Act, 2016 and the 1996 Act to give full effect to the rights of persons with disabilities and provide them with equality of opportunities and full participation in the State of Gujarat, to eliminate discrimination against people with disabilities.

The The Advocate General assured the Court that the State would coordinate with the Department of Personnel and Training, the Government of India would find a solution to rectify the situation by calculating the pending vacancies to prepare a plan for the carrying out a special recruitment campaign.

“With assurance, in order to give opportunity to the state government to undo the wrong, we publish the matter on 22/11/2024. The Chief Secretary of Gujarat State is advised to keep in mind the requirement of law before making any affidavit in the Court of Justice”, said the court.

The matter will appear next on November 22.

Case Title: NATIONAL FEDERATION OF THE BLIND v/s STATE OF GUJARAT & ANR.

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