Can’t bar visually impaired from principal post, Delhi HC to Kendriya Vidyalayas.
 

The court said that an advertisement issued by the Kendriya Vidyalaya Sangathan in August 2018 for the posts of principal distinguished persons with disabilities and had the effect of excluding them from the race of recruitment.

The Delhi high court on Monday termed as unsustainable a recruitment advertisement issued by Kendriya Vidyalaya Sangathan that excluded reservation for blind persons from the post of principal.
The court observed that every act of exclusion that has the effect of compelling a person with disabilities (PwDs) out of a race for gaining employment without their fault is an assault on their dignity.
A bench of chief justice Satish Chandra Sharma and justice Sanjeev Narula opined that the advertisement issued by the Sangathan in August 2018 for the posts of principal, vice-principal, PGTs, TGTs, librarian distinguished PwDs and had the effect of excluding them from the race of recruitment as the distinction was purely on the basis of disability.
“The impugned advertisement distinguishes the persons with disabilities from others and puts a restriction on their potential to participate in the recruitment process to their full ability. The distinction is purely on the basis of disability. The advertisement has the effect of excluding the persons with disabilities from the race of recruitment, in complete violation of the mandatory reservation provision. It may be noted that an act of discrimination is not only a denial of the promise of equal protection before the law. Rather, every act of exclusion is an assault on the dignity of a person. More so, when the exclusion has the effect of compelling the persons with disabilities out of a race for gaining employment, without any fault of theirs. Instead of providing an equal space to grow, we have been compelling the persons with disabilities to prove, time and again, that they are capable of a lot more than we think,” the bench said in a 39-page verdict authored by chief justice Satish Chandra Sharma.
The court also said, “We may usefully note that the power of identification of posts is bound by a procedure, which, amongst other things, involves consultation with experts including persons with disabilities. The persons with disabilities are the direct stakeholders in this exercise and the legislature has aptly carved out a provision for a consultative exercise with such persons. It is a manifestation of the principles of natural justice and there can be no deviation from the statutory procedure. Exclusion of a post, without engaging in a consultative exercise, shall also be violative of the principles of natural justice.”
The bench also opined that the Sangathan at the stage of recruitment and advertisement of vacancies was duty bound to reserve 4 % of the total number of vacancies, inclusive of vacancies against identified as well as unidentified posts.
The court said that it was impermissible to exclude subjects which cannot be taught by PwDs at the time of reservation of vacancies.
“Once recruited, appointments can be made against the posts identified as suitable for respective categories of persons with disabilities. There is no power with the respondent or its committee to revisit and cut short the list notified by the government. The process of identification or its review is to be carried out by the appropriate government only. Further, the said exercise is to be carried out after constitution of an expert committee with due representation of persons with benchmark disabilities,” the court said as it directed the Sangathan to reserve the post of principal for blind persons, conduct an audit of the total number of vacancies in the establishment and prepare a vacancy based roster for recruitment of PwDs within three months.
The bench also sought an affidavit from the Sangathan regarding the timeline of recruitment for filling the vacancies.
“The rights belonging to the persons with disabilities are meant to secure inclusivity and human dignity. Such rights, although statutorily enacted, find their roots in the fundamental rights of life, equality and non-discrimination, as enshrined in the Constitution. The guarantee of equal opportunity to all equally extends to the persons with disabilities and while interpreting the benevolent provisions of the statutes in this regard, the court must be mindful of the same,” the court also said.
The court’s verdict came in a public interest litigation filed by the National Federation of the Blind (Federation) challenging advertisements issued by the Sangathan that reserved vacancies in a post and subject wise manner. As the advertisement excluded the post of Principal from the posts reserved for blind persons and further provided for vacancies for a particular category of PwDs in certain PGTs subjects, the federation had argued that the advertisement violated section 34 of the Rights of Persons with Disabilities Act, 2016.
According to Section 34, every government establishment is mandated to reserve at least 4% seats for PwDs. Out of the 4%, PwDs under three categories (Blindness and low vision, Deaf and hard of hearing, Locomotor disability, including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy) are entitled to one percent reservation and the remaining one percent is collectively meant for persons suffering from autism, intellectual disability, specific learning disability, mental illness and multiple disabilities.
Federation appearing through senior advocate SK Rungta argued that the advertisement was discriminatory and violated the act as it failed to reserve 1% seat for persons with visual disability for the post of principal which is a promotional post for the vice principal. Senior counsel had also contended that KVS failed to maintain vacancy based roster, compute backlog of vacancies and also undertake a special recruitment drive to fill up the vacancies.
Drawing the court’s attention to the Committee which was tasked to identify the posts suitable for blind persons in Kendriya Vidyalaya, Sangathan appearing through advocate S Rajappa argued that the committee did not find visually impaired persons suitable to undertake the post of Principal as a Principal is required to perform administrative, financial and academic persons. Regarding non implementation of 4% reservation, the counsel argued that Sangathan had also constituted a committee of KVS Officers to examine the enhancement of reservation to PwDs from 3% to 4% but it on August 31, 2018 sought exemption from implementing additional 1 % reservation on the ground of nature of duties being performed at Kendriya Vidyalayas.
Source: https://www.hindustantimes.com/cities/delhi-news/cant-bar-visually-impaired-from-principal-post-delhi-hc-to-kendriya-vidyalayas-101697465694512.html