Date:05/09/2007 URL: http://www.thehindu.com/2007/09/05/stories/2007090558060100.htm

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No further caste quota within quota for the disabled

Legal Correspondent

Supreme Court sets aside judgment of the Madhya Pradesh High Court

NEW DELHI: The Supreme Court has held that no further reservation can be made available to the Scheduled Castes, Scheduled Tribes or Backward Classes within the quota for the physically handicapped as the disabled themselves constitute a special class.

“A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise,” said a Bench of the Court comprising Justice S. B. Sinha and Justice H.S. Bedi.

“A reasonable reservation within the meaning of Article 16 of the Constitution should not ordinarily exceed 50 per cent as has been held by this court in the case of Indra Sawhney vs. Union of India [Mandal case]. However, reservation for women or handicapped persons would not come within the purview of this 50 per cent quota.” It would mean the total reservation could exceed 50 per cent, excluding the quota for the handicapped or women.

The Bench was setting aside a judgment of the Madhya Pradesh High court upholding the State government’s decision to terminate the services of handicapped persons selected from the “general category” on the ground that only those belonging to the “SC/ST/BC categories” could be appointed under the physically handicapped quota.

The High Court had allowed a petition from “disabled SC students” challenging the selection of candidates from the “general category”, contending that they should be given preference under the handicapped quota. The present appeal was directed against this order.

The Madhya Pradesh government issued an advertisement stating that vacancies would be filled up from two categories — one for the SC and ST and the other for handicapped candidates (who were not further classified as belonging to the SC, the ST and the general category). However, when a contempt petition was filed in the High Court, the State changed its stand and said the word “handicapped” was not mentioned in the heading of the advertisement and that the posts were meant only for the SC and ST and not for “general category” candidates.

Writing the judgment, Mr. Justice Sinha said, “The Rule of Executive construction was given the complete go-by. Reasonableness and fairness, which is the hallmark of Article 14, was completely lost sight of.”

The Bench set aside the impugned judgment and directed that the services of those who had been sacked be restored and that they be paid back wages as also other benefits.