the parent statute, the 3 per cent reservation in section 33 could not be limited only to the posts identified for reservation under section 32. To determine legislative intent, the court also relied on the provisions of the draft Rights of Persons with Disabilities Bill, 2012. In the draft bill, the court found that the intent to extend the reservation beyond identified posts was very clear.
Relying on a draft legislation to determine the legislative intent of a provision drafted in 1995 is quite unprecedented. But the court seems to have been eager to do justice to persons with disabilities and the wording of the statute left it in no doubt that the reservations were meant to be vacancy-based and not post-based.
The vacancy-based reservation approach poses a problem, because in order to reach a stage where 3 per cent of vacancies are even available for reservation, a substantial number of vacancies must arise in the cadre of each establishment. It seems difficult to even estimate how long it would take for the first set of reservations, post this ruling, to actually come into effect. Be that as it may, and despite working in the disability sector, I cannot find fault with the plain interpretation of the statute by the court.
Let it not be said, however, that concern regarding vacancy-based reservations was never raised outside these legal proceedings. In 2010, the ministry of social justice and empowerment constituted a committee, comprising persons with disabilities as well as representatives of organisations working with such persons, under Sudha Kaul. It was meant to draft the bill mentioned above. In the legal consultations held, it was observed that “the reservation of vacancies instead of posts needs to be re-examined”. The committee draft of 2011 reflected this, with the proposal that, “All establishments shall reserve not less than 7 percent of all posts. for persons with disabilities”. If this clause had been part of the draft bill finally considered by the court, things might have been different. Unfortunately, the proposed section 39 of the bill states, “Every appropriate government shall reserve not less