Mr. S.K. Rungta, Sr. Adv. with Mr. Prashant Singh, Adv v. WESTERN RAILWAY AND ORS

Judgment

1. The petitioners aspire for recruitment to various posts in the Western Railway. They are 100% Visually Impaired1. They seek to be recruited against the quota reserved for VI candidates, for which purpose they participated in the selection process consequent on CEN2 01/2019 issued by the Railway Recruitment Cell3. On the ground that there are insufficient posts identified for 100% VI candidates, in 1 “VI” hereinafter 2 Central Employment Notice 3 “RRC” hereinafter Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 which they can be appointed, they have not been found suitable for appointment. Aggrieved thereby, the petitioners approached the Central Administrative Tribunal4 by way of OA 2901/2023, OA 2441/2023, OA 2902/2023 and OA 3041/2023. The OAs were dismissed by the Tribunal by a common judgment dated 16 July 2024. Challenging the said judgment, the petitioners have invoked Article 226 of the Constitution of India, and are consequently before us.

2. We have heard Mr. S.K. Rungta, learned Senior Counsel for the petitioners and Ms. Monika Arora, learned CGSC for the respondents, at length. Written submissions have also been tendered by both sides, which have been duly considered.

3. Before proceeding to the facts, we may set out the relevant statutory provisions and administrative instructions governing the field, to which learned Counsels on both sides drew our attention.

4. The Right of Persons With Disabilities Bill, 20125

4.1 The Right of Persons With Disabilities Act, 20166, which unquestionably is the core statute with which we are concerned, was preceded by the RPWD Bill. The Statement of Objects and Reasons preceding the RPWD Bill read: 4 “the Tribunal” hereinafter 5 “the RPWD Bill” hereinafter 6 “the RPWD Act” hereinafter Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. The Act defines Persons with Disabilities as those having not less than forty per cent disability and identified seven categories of disabilities, namely, blindness, low vision, hearing impairment, locomotor disability, mental retardation, mental illness and leprosy-cured.

2. Over a period of time, the conceptual understanding of the rights of persons with disabilities has become more clear and there has been worldwide change in approach to handle the issues concerning persons with disabilities. The United Nations adopted its Convention on the Rights of Persons with Disabilities laying down the principles to be followed by the States Parties for empowerment of persons with disabilities. India signed the said Convention and subsequently ratified the same on the 1st day of October, 2007. The Convention came into effect on the 3rd day of May, 2008. Being a signatory to the Convention, India has an international obligation to comply with the provisions of the said Convention which required an entirely new legislation. In 2010, an Expert Committee constituted under the 3. chairmanship of Dr. Sudha Kaul, Vice-Chairperson, Indian Institute of Cerebral Palsy, Kolkata submitted its report in 2011, suggesting a Draft Bill relating to the Rights of Persons with Disabilities. The draft Bill was extensively debated upon at various levels involving State Governments and Union territories and various stakeholders. The salient features of the Rights of Persons with

4. Disabilities Bill, 2014, inter alia, are: duties and responsibilities of Nineteen specified disabilities have been defined; (i) (ii) the persons with disabilities enjoy various rights such as right to equality, life with dignity, respect for his or her integrity, etc., equally with others; (iii) Government have been enumerated; (iv) all educational institutions funded by appropriate Government shall provide inclusive education to the children with disabilities; (v) support to persons with disabilities; a National Fund is proposed to provide financial the appropriate Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 stakeholders’ participation in the policy making (vi) through Central and State Advisory Boards; (vii) increase in reservation in posts from existing three per cent to five per cent in the vacancies for persons or class of persons with benchmark disabilities in every establishment and reservation of seats for students with benchmark disabilities in higher educational institutions; (viii) setting up of National Commission and State Commission to act as Grievance Redressal Mechanism, legislation monitor replacing State the Chief Commissioner Commissioners for persons with disabilities, respectively; (ix) for issuance of certificates of specified disabilities; (x) with disabilities; and (xi) Court of Session to be designated as Special Court by the State Government in every district to try offences. penalties for offences committed against persons guidelines to be issued by the Central Government implementation of the proposed

5. The Bill seeks to achieve the above objects.

4.2 Mr. Rungta places reliance on Clause 39 (1)(i) of the RPWD Bill, which reads: “39. Reservation of Posts for Persons with Benchmark Disabilities – (1) Every appropriate government shall reserve, in every establishment under them, not less than 5% of the vacancies meant to be filled by direct recruitment, for persons or class of persons with benchmark disability, of which 1% each shall be of all posts reserved for persons with following disabilities :- i. blindness & low vision (with reservation of 0.5% of the vacancies for each of the two disabilities)”

5. The RPWD Act Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56

5.1 The RPWD Act is, as per its title, “an Act to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto”.

5.2 The Preamble to the RPWD Act merits reproduction: “Whereas the United Nations General Assembly adopted its Convention on the Rights of Persons with Disabilities on the 13th day of December, 2006; And whereas the aforesaid Convention lays down the for empowerment of persons with following principles disabilities,— respect for difference and acceptance of persons non-discrimination; full and effective participation and inclusion in respect for inherent dignity, individual autonomy (a) including the freedom to make one’s own choices, and independence of persons; (b) (c) society; (d) with disabilities as part of human diversity and humanity; (e) equality of opportunity; (f) accessibility; (g) equality between men and women; respect for the evolving capacities of children with (h) disabilities and respect for the right of children with disabilities to preserve their identities; And whereas India is a signatory to the said Convention; And whereas India ratified the said Convention on the 1st day of October, 2007; And whereas it is considered necessary to implement the Convention aforesaid.”

5.3 The provisions in the RPWD Act which would engage us are Sections 337 and 348, read with Section 2(b)9. 7 33. Identification of posts for reservation. – The appropriate Government shall— Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56

6. The Right of Persons With Disabilities Rules, 201710

Mr. Rungta also places reliance on Rule 1111 of the RPWD Rules. 8 34. constitute an expert committee with representation of persons with benchmark disabilities (i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of Section 34; (ii) for identification of such posts; and (iii) Reservation. – Every appropriate Government shall appoint in every Government establishment, not less (1) than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent for persons with benchmark disabilities under clauses (d) and (e), namely— undertake periodic review of the identified posts at an interval not exceeding three years. (a) blindness and low vision; (b) deaf and hard of hearing; (c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy; (d) autism, intellectual disability, specific learning disability and mental illness; (e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf- blindness in the posts identified for each disabilities: Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time: Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section. (2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government. (3) age limit for employment of persons with benchmark disability, as it thinks fit. The appropriate Government may, by notification, provide for such relaxation of upper 9 2. Definitions. – In this Act, unless the context otherwise requires,— (b) ***** “appropriate Government” means,— in relation to the Central Government or any establishment wholly or (i) substantially financed by that Government, or a Cantonment Board constituted under the Cantonments Act, 2006 (41 of 2006), the Central Government; (ii) in relation to a State Government or any establishment, wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board, the State Government. 10 “the RPWD Rules” hereinafter 11 11. Computation of vacancies. – (1) For the purposes of computation of vacancies, four per cent of the total number of vacancies including vacancies arising in the identified and non-identified posts in the cadre strength in each group of posts shall be taken into account by the appropriate Government for the persons with benchmark disabilities: Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56

7. Executive Instructions

7.1 Various executive instructions, issued under the RPWD Act and the RPWD Rules, as well as under the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 199512, the predecessor statute to the RPWD Act, were cited, and we may note them, chronologically, thus.

7.2 Railway Board Circular dated 14 February 2014

7.2.1 The respondents, in its counter-affidavit before the Tribunal, relied on Railway Board Circular dated 14 February 2014 as representing “the latest list” of categorization of posts suitable to be filled by persons suffering from various categories of disabilities. The exact averment to this effect, as contained in the counter-affidavit, reads thus: “In this context, it is stated that the posts suitable for PwBD13 have been notified by Railway Board from time to time. The latest list notified is vide Railway Board’s letter No. E (NG) II/2014/RC-2/I list dated 14.02.2014 (Annexed as R-1). Posts identified for Provided that the reservation in promotion shall be in accordance with the instructions issued by the appropriate Government from time to time. (2) Every Government establishment shall maintain a vacancy based roster for the purpose of calculation of vacancies for persons with benchmark disabilities in the cadre strength as per the instructions issued by the appropriate Government from time to time. (3) While making advertisement to fill up vacancies, every Government establishment shall indicate the number of vacancies reserved for each class of persons with benchmark disabilities in accordance with the provisions of Section 34 of the Act. (4) The reservation for persons with disabilities in accordance with the provisions of Section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class. 12 “the 1995 PWD Act” hereinafter 13 Persons with Benchmark Disabilities Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 particulars category of disability is required to be filled by the post identified and suitable for that category of disability. Hence the contention of the VI-Blind cannot be accepted.”

7.2.2 A reading of the Railway Board Circular dated 14 February 2014 reveals that it is based on a Notification dated 29 July 2013 issued by the Department of Disability Affairs14. The opening sentence in the second paragraph of the Circular reads thus: “Department of Disability Affairs have informed this Ministry of a new list of posts published vide their Notification No. 16-15/2010- DDIII dated 29/7/2013, to give effect to reservation to the PWDs, wherein, total exemption have been granted to the Railways from reservation in certain post and partial exemption in some others.”

7.2.3 As Mr. Rungta correctly points out, however, the DDA Notification dated 29 July 2013, on which the Railway Board Circular dated 14 February 2014 was based, was itself found to be unsatisfactory by this Court in its judgment in UOI v Tara Chauhan15, and the Railways was directed to re-examine the aspect of identification of posts suitable for being manned by persons suffering from different categories of disabilities. As such, the respondents cannot seek to reply on the Railway Board Circular dated 14 February

7.3 Department of Empowerment of Persons with Disabilities16 Office Memorandum17 dated 4 March 2015 14 “DDA” hereinafter 15 MANU/DE/1943/2014 16 “DEPWD” hereinafter 17 “OM” hereinafter Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56

7.3.1 This OM was issued by the DEPWD on the basis of the recommendations of an Expert Committee which was set up to look into identification of Group D posts in the Indian Railways in the context of suitability for persons with VI. The exercise was conducted in accordance with the directions issued by this Court in its judgment dated 19 August 2014 in Tara Chauhan, read with order dated 24 December 2014 in Rev Pet 571/201418, by which the Union of India sought review of the judgement dated 19 August 2014. To appreciate the OM, therefore, it would be necessary first to refer to the two Tara Chauhan orders.

7.3.2 Judgment dated 19 August 2014 in WP (C) 5111/2014

7.3.2.1 This decision was rendered in the context of Section 3319 of the 1995 PWD Act.

7.3.2.2 By an advertisement dated 30 December 2013, the Northern Railways invited applications for 5679 vacancies in 13 cadres. The advertisement provided for reservation, in various posts, for candidates suffering from disabilities, thus: Name Post Department Categories of disabled who could apply for the jobs 18 UOI & ors v Tara Chauhan & anr 19 33. Reservation of posts. – Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from— blindness or low vision; (i) hearing impairment; (ii) (iii) locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 Khalasi Helper (Ctg No. 3, 7, 11) Safaiwala Cook Civil Engg., Electrical, Mechanical, S & T Store Med Med LV20, OA21, BL22, OL23, HH24 LV, OA, BL, OL, HH B25, LV, BL, OL, HH

7.3.2.3 The respondents before this Court26 moved the Tribunal, alleging that the notification of vacancies reserved for VI candidates, in the advertisement dated 30 December 2013, was not in accordance with Section 33 of the 1995 PWD Act. Specifically, Tara Chauhan etc. were aggrieved at the fact that blind (100% VI) candidates were eligible, as per the advertisement, only for appointment to the post of cook.

7.3.2.4 Finding merit in the grievance of Tara Chauhan, etc., the Tribunal, vide judgment dated 13 March 2014, allowed their OA in the following terms: “17. Therefore, we conclude that by debarring the blind people in 2013 advertisement, the respondents have indeed done injustice to the applicants and this needs to be rectified. We, therefore, set aside the advertisement to the extent it excludes the blind from consideration for appointment to other posts except Cook and direct the respondents to consider the blind also for appointment to other posts advertised, if they are selected. In this regard, they may issue a corrigendum that blind and low vision candidates are also eligible to apply, within 15 days from today and definitely well before the examination commences.” 20 Low Vision 21 One Arm 22 Both Legs 23 One Leg 24 Hearing Handicapped 25 Blind 26 “Tara Chauhan etc.” hereinafter Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56

7.3.2.5 Aggrieved thereby, the UOI approached this Court, contending that the Tribunal erred in interfering with a conscious policy decision taken on the basis of an exercise undertaken by the Ministry of Social Justice and Empowerment27 in terms of Section 33 of the 1995 PWD Act. An Expert Committee, in terms of the said provision, had been constituted on 29 July 2013, and, in accordance with the recommendations of the Expert Committee, the posts identified as suitable for being occupied by persons with various categories of disabilities were identified and the advertisement issued accordingly.

7.3.2.6 This Court held thus: “10. It is evident from the above discussion that there is no debate or controversy with respect to the manner in which the 3% vacancies directed by the provisions of the Disabilities Act have to be worked out. A series of judgments of the Supreme Court › the latest being in National Federation of the Blind 28 have concluded the issue; all establishments are bound to work out or calculate the 3% reservations on the basis of the total vacancies irrespective of the identification of posts. Such being the case, the next level of scrutiny required is whether the exclusion of a particular post or group of posts or cadre from the purview of the Disabilities Act › in respect of all kinds of disabilities or some of them, is backed by any rationale. The above discussion would show that unlike the 2010 instance, where apparently no exercise has been resorted to, the current advertisement had the benefit of the notification of the committee dated 29.07.2013, which identified the various posts across the establishment of Union of India, its department and agencies.

11. It is evident that this notification nowhere extends the reservation to low vision or blind category of candidates with 100% visually impaired, to posts such as Gateman, Lineman and 27 “the MOSJE” hereinafter 28 UOI v National Federation of the Blind, (2013) 10 SCC 772 Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 Trackman. Such being the case, this Court is of the opinion that the Tribunal could not have given the wide-ranging directions that it did. In the circumstances, the order of the Tribunal calls for modification on this aspect. So far as the question whether the description of Khalasi 12. Helper, Carriage Cleaner, Safaiwala etc. correspond to any of the posts identified within the notification is concerned, this Court is of the opinion that this aspect would be best left to the determination by the appropriate authorities in order to avoid any controversy or confusion. Accordingly, we direct the concerned authority constituted by the law i.e. the Chief Commissioner of Disabilities to determine as to which of the posts advertised by the Northern Railways on 30.12.2013, save and except that of Gateman, Lineman, Trackman and Cook (which have already been identified in the notification dated 29.07.2013) correspond to the identified posts vide notification dated 29.07.2013. The Chief Commissioner shall be assisted by the concerned officials of the Indian Railways. It is open to the Chief Commissioner to consider the views of any other interested parties who may wish to address the issue. In the light of the above discussion, the following

13. directions are hereby issued: i) The Tribunal’s order to the extent which directs appointment of the applicants to the categories of Gateman, Lineman and Trackman pursuant to the advertisements in question in the present case is hereby set aside; The Chief Commissioner of Disabilities shall, after ii) taking into account the notification dated 29.07.2013 and consulting the Northern Railways and considering the views of the other interested parties, furnish his report as to the equivalence of the posts which are the subject matter of the present case, and whether they are covered by the notification dated 29.07.2013 in respect of low vision and 100% blind category candidates. This report shall be furnished within eight weeks from today. iii) The Northern Railways shall keep 1% of the entire vacancies notified pursuant to the advertisement dated 30.12.2013 unfilled till the aforesaid process is completed. iv) The process of filling up the 1% reserved posts shall be completed pursuant to the report, after which the Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 results in respect of those category of candidates would be consequential orders of declared appointment etc. shall be undertaken. This direction will apply in W.P.(C.) Nos.5146/2014 and 5162/2014. appropriate So far as the applicants in W.P.(C.) No. 5111/2014 v) are concerned, since the recruitment process of the common test etc. have not yet been undertaken, the petitioner/Northern Railways is hereby directed to accept the applications of 100% blind category candidates and allow them to participate in the recruitment test. Their results, as well as those of the low vision category candidates, shall not be declared in the 1% reserved category under the Disabilities Act, and shall be subject to the final determination by the Chief Commissioner as directed by this Court. In case of candidates of low vision and blind vi) category applying for and participating in any selection process and finding a place in the merit list (i.e. other than under reserved categories under the Disabilities Act or any other kind of reservation), their results will be announced and the appointment process be undertaken in accordance with the prevailing regulations and office memorandum. vii) Subject to the above directions, result of candidates in respect of all other vacancies (except of the categories mentioned above) shall be declared.”

7.3.3 Order dated 24 December 2014 in Rev Pet 571/2014

7.3.3.1 The UOI filed Rev Pet 571/2014, seeking review of the above judgement dated 19 August 2014. The Review Petition was predicated on Section 3229 of the 1995 PWD Act. The contention of the UOI was that, by virtue of Section 32, the task of identifying the posts to be earmarked for being filled by persons suffering from Identification of posts which can be reserved for persons with disabilities. – Appropriate 29 32. Governments shall— (a) disability; (b) up-date the list taking into consideration the developments in technology. identify posts, in the establishments, which can be reserved for the persons with at periodical intervals not exceeding three years, review the list of posts identified and Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 different categories of disability was cast on the Government and that, in exercise of this task, an Expert Committee had been constituted, its report given to the MOSJE and, on that basis, OM dated 3 December 2014 issued by the Central Government. This Court, therefore, in the submission of the UOI, erred in further designating the task of identification of posts to the Chief Commissioner for Persons With Disabilities30, in its order dated 19 August 2014.

7.3.3.2 This Court held that the directions contained in the judgment dated 19 August 2014 had been necessitated because there were gaps in the OM dated 3 December 2014, as also lack of clarity and some contradictions. The Court observed that the report prepared by the CCPWD was also of relevance, even if the identification of posts, under Section 32 of the 1995 PWD Act, was assigned to the Government. Nonetheless, keeping in view the submissions advanced by the UOI, the directions issued in the order dated 19 August 2014 were modified thus: “Considering the mandate of Section 32, therefore, this Court is of the opinion that the said judgment of 19.08.2014 has to be modified to the extent that the Central Government shall forthwith and not later than two weeks, reconvene the Committee which had been earlier tasked with the preparation of the report (by notification of 31.03.2011 and pursuant to which the notification was issued on 29.07.2013) to complete the task mentioned in the said judgment dated 19.08.2014. The Committee shall give due weight and consideration to the determination of the Chief Commissioner for Persons with Disabilities and the report furnished to the Central Government, Ministry of Social Justice and Empowerment; the said Expert Committee shall also take note of the Office Memorandum issued pursuant to the exercise carried 30 “the CCPWD” hereinafter Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 out by the Chief Commissioner for Persons with Disabilities dated 03.12.2014. The Committee shall consider and prepare its report with all expedient despatch and, in any event, within eight weeks the accompanying review petitions and applications are disposed of. This order is passed in the light of the UOI’s applications and with consent of learned counsel for the parties.” today. The

7.3.4 The OM dated 4 March 2015 was issued by the DEPWD by way of compliance with the directions contained in the above order dated 24 December 2014 of this Court in Rev Pet 572/2014. The OM was issued consequent to a meeting of the re-convened Expert Committee, which took place on 9 February 2015. The following tabular statement is contained in the OM, reflecting the identification of posts in the Indian Railways for persons with VI, i.e. blindness or low vision: Department S.No. Name of Post Khalasi Helper Mechanical (W), S & T (W), Engg (W) 1 2 Safaiwala Medical 3 Khalasi Helper Stores 4 Hospital Attendant (Male) Medical Recommendations The suitable persons blindness and low vision. The suitable persons blindness and low vision. The suitable persons blindness and low vision. The suitable persons blindness and low vision. Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 5 Hospital Attendant (Female) Medical 6 Khalasi Helper Civil Engg., Electrical, Mechanical, Signal Telecom 7 DSL Khalasi Mechanical 8 Khalasi Helper Engg. 9 Carriage Cleaner DSL cleaner Mechanical The suitable persons blindness and low vision. Cannot identified suitable for persons with Visual Impairment since the posts involved operations operations Cannot identified suitable for persons with Visual Impairment since the posts involved operations operations Cannot identified suitable for persons with Visual Impairment since the posts involved operations operations Cannot identified suitable for persons with Visual Impairment since the posts involved operations operations

7.4 DEPWD Notification dated 4 January 2021 and DEPWD OM dated 8 November 2024 Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56

7.4.1 Mr. Rungta stressed on these instructions, too, to buttress his case. The DEPWD OM dated 8 November 2024 was issued pursuant to directions issued by this Court in its judgment dated 1 November 2023 in Court on Its Own Motion v Kendriya Vidyalaya Sangathan31 and was an effective successor to DEPWD Notification dated 4 January 2021, which itself was issued in supersession of DDA Notification dated 29 July 2013 supra. Pursuant to the enactment of the RPWD Act in 2016, various Sub-Committees, for locomotor disability, hearing impaired and visual impairment, re-examined the matter of identification of posts in Central Government services under Section 33 of the RPWD Act and submitted their recommendations to an Expert Committee which considered the reports in its meeting held on 19 November 2015. The recommendations of the Expert Committee, after finalization, were forwarded the Central Government, which notified the gist of the report of the Expert Committee, under Section 33 of the RPWD Act, vide DEPWD Notification dated 4 January 2021. The Annexure to the Notification contains a tabular statement headed “Post Identified to be Reserved for Persons with Benchmark Disabilities in Group D”.

7.4.2 To our mind, the DEPWD Notification dated 4 January 2021 and the DEPWD OM dated 8 November 2024 can have no application to the present case, as they were issued much after the CEN dated 23 July 2019 with which we are concerned. Mr. Rungta has not even sought to advance a submission that these instructions would have 31 MANU/DE/7373/2023 Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 retrospective application, or would apply to recruitments against advertisements issued in the past. It is a settled principle that selection, consequent to an advertisement, would abide by the Rules and executive instructions then in existence. It is equally well settled that statutory Rules and executive instructions operate prospectively. This principle stands thus enunciated in N.T. Devin Katti v Karnataka Public Service Commission32: contained the advertisement, unless “11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in 32 (1990) 3 SCC 157 Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature. in October/November 1960. But before In B.N. Nagarajan v State of Mysore33, the dispute related 12. to the validity of appointment of Assistant Engineers. The Public Service Commission invited applications by issuing notifications for appointment to the post of Assistant Engineers in October 1958, May 1959 and April 1960. The Commission made selection, interviewed the candidates and sent the select list to the government appointments could be made the Mysore Public Works, Engineering Department Services (Recruitment) Rules, 1960 came into force which prescribed different provisions than those prescribed in the earlier notifications in pursuance whereof the Public Service Commission had made the selections. The validity of the appointment made by the government on the basis of the selection made by the Commission was challenged. The High Court quashed the selection and appointments made in pursuance thereof. On appeal before this Court, validity of the appointments were assailed on the ground that since the appointments had been made after the amendment of the Rules the appointments should have been made in accordance with the amended Rules. A Constitution Bench of this Court rejected the contention holding that since the whole procedure of issuing advertisement, holding interviews and recommending the names having been followed in accordance with the then existing Rules prior to the enforcement of the amended Rules the appointments made on the basis of the recommendation made by the Public Service Commission could not be rendered invalid.

13. … It is a well accepted principle of construction that a statutory rule or government order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and government orders and any amendment of the rules or the government order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended Rules or the amended government orders, issued in exercise of its statutory 33 AIR 1966 SC 1942 Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections. See P. Mahendran v State of Karnataka34. As we would point out hereinafter, the CEN dated 23 July 2019 itself identified the various categories of posts which were suitable for persons suffering from different types of disabilities. The exercise of identification – which Mr. Rungta would call “bifurcation” – having taken place prior to the issuance of the CEN dated 23 July 2019, Notifications and OMs issued thereafter would be of no application. Facts

8. We may now proceed to the facts.

9. Vide CEN 01/2019, dated 23 February 2019, applications were invited for recruitment to various posts in the Indian Railways in Level 1 of the 7th Central Pay Commission35 Pay Matrix. We are concerned with the Western Railway, in which 10734 vacancies were notified. In accordance with Section 33 of the RPWD Act, which required 1% of the vacancies to be reserved for VI candidates, 171, out of the advertised 10734 vacancies, were reserved for VI candidates in the Western Railway. Though 171 does not work out to 1% of 10734, all parties are ad idem that 171 vacancies were reserved for VI candidates. 34 (1990) 1 SCC 411 35 7th CPC Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56

10. Candidates, in order to be eligible for consideration and recruitment against the posts advertised by the aforenoted CEN 01/2019, were required to have passed Class X or to possess ITI qualification from recognised institute. They were also required to be between 18 and 33 years of age. There is no dispute that the petitioners qualified the age and educational requirements stipulated in the advertisement.

11. 171 posts were intended to be filled by the aforenoted CEN. Annexure A to the CEN set out, inter alia, the suitability of persons suffering from benchmark disabilities recruitment and appointment against each of these posts. To the relevant extent, the said Annexure may be reproduced thus: Designation Dept Cat No. Medical Standard Suitability for persons with benchmark disability VI HI36 LD37 1 2 3 4 5 Assistant (Workshop) Mech. C1 B, LV D39, HH 40 OL, LC41, DW42, AAV43 Eng. B1 No No No Assistant Bridge Assistant C&W Mech. B1 Assistant Depot (stores) Assistant Loco Shed Stores C1 Mech B1 No D, HH LV D, HH OL, LC, DW, AAV OL, OA LV D, HH OL, LC, DW, Yes MD 38 Yes No Yes Yes 36 Hearing Impaired 37 Locomotor Disability 38 Multiple Disability 39 Deaf 40 Hard of Hearing 41 Leprosy Cured 42 Dwarfism 43 Acid Attack Victim Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 6 7 8 9 10 11 12 13 14 15 16 17 (diesel) Assistant Loco Shed (Elect.) Assistant Operations (Electrical) Assistant Pointsman Assistant Signal Telecom Assistant Track Machine Assistant TL & AC & Assistant TL AC & (Workshop) Assistant TRD Assistant Works Assistant Works (Workshop) Hospital Assistant Track Maintainer Grade IV Elect. B1 Elect. B2 LV D, HH LV D, HH AVV OL, LC, DW, AAV OL, LC, DW, AAV Traffic A2 No No No S and T B1 Eng. B1 Elect. B1 Elect C1 Elect B1 Eng. B1 Eng. C1 Med. C1 LV D, HH No D, HH LV D, HH B, LV D, HH No D, HH B, LV B, LV B, LV D, HH D, HH D, HH OL, LC, DW, AAV OL, LC, DW, AAV OL, LC, DW, AAV OL, LC, DW, AAV OL, LC, DW, AAV OL, LC, DW, AAV OL, LC, DW, AAV OL, LC, DW, AAV Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Eng. B1 No No No No

12. Thus, VI candidates, who were aspiring for recruitment consequent to the aforenoted CEN 01/2019 were made aware, at the very outset, that certain posts were suitable only for persons with low vision (LV) and certain other posts were suitable for persons who were suffering from LV as well as those who were blind (B). To be specific, (i) the posts of Assistant (Workshop), Assistant TL & AC (Workshop), Assistant Works, Assistant Works (Workshop) and Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 Hospital Assistant were suitable for candidates who were blind as well as those suffering from low vision, (ii) the posts of Assistant Depot (stores), Assistant Loco Shed (diesel), Assistant Loco Shed (Elect.) Assistant Operations Electrical, Assistant Signal & Telecom and Assistant TL & AC were suitable only for candidates with low vision but were not suitable for candidates who were blind, and (iii) the remaining posts of Assistant Bridge, Assistant C&W, Assistant Pointsman, Assistant Track Machine, Assistant TRD and Track Maintainer Grade IV were not suitable for candidates suffering from visual impairment at all.

13. It cannot be disputed that all candidates who applied consequent to CEN 01/2019 and participated in the selection thereafter did so in the full awareness of the manner in which posts have been identified in, Annexure A to the CEN, as suitable for candidates suffering from particular categories of disabilities.

14. There is no challenge to CEN 01/2019 or to Annexure A thereto.

15. On 18 January 2023, the first select list of candidates, who had cleared the earlier round of selection was released by the Western Railway, for further document verification and medical examination. The cut-off marks for VI candidates, as per the first select list, were

57.27633. The petitioners scored above the said cut-off and were, Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 therefore, called for document verification and medical examination. Their medical examination took place between 1 and 10 February

16. Consequent to document verification and medical examination, three Provisional Panels of candidates, who had been selected were released by the Western Railway on 23 March 2023, 27 April 2023 and 5 June 2023. The grievance of the petitioners, who are wholly blind, is that their names did not figure in any of the three panels. They claimed to be aggrieved by the fact that, against the posts which were identified as suitable for being filled by candidates who suffered from LV but were not blind, candidates who were lower to them in merit, but who suffered from LV and were not blind, were selected. There is, however, no dispute that, against the posts which were identified in Annexure A to the CEN as suitable for candidates who were blind or who suffered from LV, no candidate inferior to the petitioners on merit was selected.

17. In other words, (i) against the posts which were identified, in Annexure A to the CEN, as suitable for candidates who were blind or were suffering from LV, the respondents did appoint both categories of candidates, and it is nobody’s case that any candidate who was inferior in merit to any of the petitioners was appointed to these posts, and Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 (ii) against the posts which were identified as suitable only for candidates suffering from LV, no blind candidate was appointed, and some of the candidates, who were suffering from LV, selected against these posts, were lower in merit to the petitioners. The grievance of the petitioners is, therefore, essentially only with respect to the selection of the candidates, in the aforenoted Provisional Panels, for appointment to the posts which were identified in Annexure A to the CEN as suitable only for persons suffering from LV but not for the blind.

18. Aggrieved by the aforesaid act, the petitioners moved the Tribunal by way of OA 2901/2023, OA 2441/2023, OA 2902/2023 and OA 3041/2023, which stand dismissed by the judgment under challenge. The impugned judgment

19. Contentions of the petitioners before the Tribunal

19.1 Before the Tribunal, the petitioners contended that, in sub- dividing the posts which were identified for persons suffering from visual impairment into two categories, with some posts found suitable for candidates who were blind as well as candidates suffering from LV, and certain other posts suitable only for candidates suffering from LV, the respondents had bifurcated the posts reserved for visually Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 impaired candidates in the CEN. This, according to the petitioners, was impermissible. Section 34 of the RPWD Act does not permit further bifurcation or sub division of vacancies to be reserved for candidates suffering from blindness or LV. Candidates suffering from blindness and LV constitute one category under Section 34(1)(a), and 1% of vacancies were required to be reserved for such candidates. Thereafter, a further post-wise sub-division of such vacancies between candidates who were blind and candidates who were suffering from LV is impermissible in law. The respondents have effectively earmarked 85 vacancies out of the 171 vacancies reserved for the candidates who were either blind or suffering from LV, and 86 vacancies only for candidates suffering from LV. Blind candidates have completely been excluded from these latter 86 vacancies. Sections 33 and 34 of the PWD Act, it was contended, did not permit any such bifurcation or sub-division.

19.2 The petitioners further contended, relying on the judgment of the Supreme Court in UOI v National Federation of the Blind44 and of this Court in National Federation of the Blind v Kendriya Vidyalaya Sangathan45, that reservation under the RPWD Act was vacancy based not post based. In the present case, after having reserved 171 vacancies for VI candidates, post based bifurcation of the said 171 vacancies into 85 vacancies for the blind / LV candidates, and 86 vacancies only for LV candidates, had taken place. Such a post based bifurcation cannot allowed, as held in the afore-noted 44 (2013) 10 SCC 772 45 MANU/DE/7042/2023; hereinafter “NFB v KVS” Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 judgments. Under Section 34 of the RPWD Act, candidates who are blind and candidates suffering from LV constitute one category. Bisection of the said homogenous category into two contravenes the statute.

19.3 Predicated on these submissions, the petitioners prayed that Notifications dated 23 March 2023, 27 April 2023 and 5 June 2023 whereby the Provisional Panels had been notified, be quashed and set aside and the petitioners be considered for appointment on the basis of their individual merit as VI candidates.

20. Contentions of the respondents before the Tribunal

20.1 In response, the Western Railway contended, before the Tribunal, that there had been no infraction by them of any provision of the RPWD Act. Out of a total of 10734 vacancies, notified for the Western Railway, it was pointed out that 171 vacancies had been reserved for VI candidates, which was entirely in accordance with Section 34(1)(a) of the RPWD Act. The respondents were not precluded from identifying, out of the vacancies reserved for any particular category of disability, posts which would be suitable candidates suffering from particular categories of disabilities. Reservation and identification constitute two distinct exercises, both of which are envisaged by the RPWD Act. In specifying that 86 of the posts reserved for VI candidates were suitable only for candidates suffering from LV, whereas 85 posts were suitable for candidates who Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 were either blind or suffering from LV, the respondents had merely undertaken an exercise of identification and not of sub-division or bifurcation as the petitioners sought to contend. Identification of particular posts as suitable for candidates suffering from particular categories of disabilities was entirely within the province of the respondent and permissible under the provisions of the RPWD Act. As such the respondents contended that the grievance of the petitioners was without substance.

20.2 Three preliminary objections were also advanced by the respondents, contesting the maintainability of the OAs and locus standi of the petitioners. These were that (i) having not chosen to challenge the CEN, there was no substance in the case of the petitioners, (ii) after participating in the selection following the CEN in full knowledge of the manner in which posts were identified as suitable for various categories of disabilities in Annexure A thereto, the petitioners could not seek to raise a grievance at a later stage, and (iii) if the reliefs in the OAs were to be granted, candidates suffering from LV and who had been selected under the impugned Provisional Panels, would be affected and they had not been impleaded as parties.

21. Observations and findings of the Tribunal Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56

22. Having noted the rival contentions before it, the Tribunal has, by the impugned order dated 16 July 2024, proceeded to dismiss the petitioners’ OAs, reasoning thus: (i) Annexure A to the CEN clearly sets out the manner in which specific posts were identified as suitable only for candidates suffering from LV whereas certain other posts were identified as suitable for candidates who were either blind or suffering from LV. The petitioners, therefore, were aware of this identification at the time when they elected to participate in the selection. (ii) More than 1% of the total vacancies of 10734, to be filled in the Western Railway under the CEN, had been reserved for VI candidates. As such, the mandate of Section 34(1)(a) of the RPWD Act stood fulfilled. (iii) Section 33 of the RPWD Act permitted identification of posts as suitable for being filled by candidates suffering from particular categories of disabilities. This identification of posts, which was reflected in Annexure A to the CEN was, therefore, in accordance with Section 33 of the RPWD Act. As the respondents had pointed out, the posts which were identified as not suitable for blind candidates were those which involved handling of machinery and other such activities. Appointment of blind candidates against such posts would be hazardous and Signature Not Verified W.P.(C) 9994/2024 and connected matters Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 prejudicial to the interests not only of the candidates themselves but also of the general public, as the recruited staff would be manning railway lines, railway tracks and the like. (iv) It had been held by the Supreme Court in Bedanga Talukdar v Saifudaullah Khan46 and State of Tamil Nadu v G. Hemalathaa47 that the Court could not relax the prescribed eligibility or qualifications. It was not permissible for the Court, therefore, to direct that blind candidates be appointed against posts which were identified as not suitable for blind. (v) Besides, without the LV candidates being impleaded, the challenge could not sustain. Impleadment of candidates who were likely to be affected by the outcome of the petition was indispensable, as held by the Supreme Court in Ranjan Kumar v State of Bihar48. (vi) Having participated in the selection process in full awareness of the manner in which posts had been identified in Annexure A to the CEN as suitable for candidates suffering from particular categories of visual impairment, the petitioners were estopped from raising any grievance on this score. This position in law was also noted in the judgment in Ranjan Kumar.