Govt Of India Th:Secy & Anr vs Ravi Prakash Gupta & Anr

Empowerment, has filed this Special Leave Petition 2

against the judgment and order dated 25th February,

2009, passed by the Delhi High Court in Writ

Petition (Civil) No.5429 of 2008, allowing the Writ

Petition and setting aside the order dated 7th

April, 2008, passed by the Central Administrative

Tribunal, Principal Bench, New Delhi, in O.A.

No.1397 of 2007, filed by the Respondent No.1

herein, and allowing the reliefs prayed for

therein.

2. The Respondent No.1 is a visually handicapped

person who suffers from 100% blindness. He appeared

in the Civil Services Examination conducted by the

Union Public Service Commission in the year 2006.

After clearing the preliminary examination, the

Respondent No.1 appeared for the main examination

in October, 2006 and was declared successful and

was, thereafter, called for a personality test

scheduled for 1st May, 2007. Pursuant to such

interview, the names of 474 candidates who were 3

selected were released on 14th May, 2007. In the

said list, the name of one other visually impaired

candidate also figured. The Respondent No.1 was at

serial no.5 of the merit list prepared for visually

handicapped candidates, who had been declared

successful in the examination. According to the

Respondent No.1, although there were more than 5

vacancies available in the visually handicapped

category, only one post was offered under the said

category and he was, therefore, not given

appointment despite the vacancies available.

3. Being aggrieved by the manner in which

selections were made for appointment in the

visually handicapped category, the Respondent No.1

filed a Writ Petition, being Writ Petition (Civil)

No.5338 of 2007, before the Delhi High Court. The

same was subsequently withdrawn since it was the

Central Administrative Tribunal only which had

jurisdiction to entertain such matters at the first 4

instance. The Respondent No.1, accordingly,

withdrew the Writ Petition, with liberty to

approach the Central Administrative Tribunal.

Thereafter, he filed an application under Section

19 of the Administrative Tribunals Act, 1985, which

was registered as O.A. No.1397 of 2007, staking his

claim for appointment under the reservation of

vacancies for disabled categories provided for

under Section 33 of the Persons with Disabilities

(Equal Opportunities, Protection, Rights and Full

Participation) Act, 1995, hereinafter referred to

as `the Disabilities Act, 1995'. The basic

contention of the Respondent No.1 was that since

the aforesaid Act came into force in 1996 providing

a statutory mandate for reservation of 3% of the

posts available for persons suffering from

different kinds of disabilities enumerated in

Section 33 of the Disabilities Act, 1995, such

reservation ought to have been in force with effect

from the date on which the Act came into force. 5

According to the Respondent No.1, if the vacancies

were to be considered from the year 1996, then

instead of one vacancy being declared for the year

in question, there should have been at least 7

vacancies from the reserved categories of

disabilities which were interchangeable. It was,

therefore, the case of the Respondent No.1 that

having regard to the number of appointments made

with regard to the disabled categories reserved

under Section 33 of the Disabilities Act, 1995,

since the Act came into force, there were at least

7 posts which could be filled up in the year 2006.

However, in that year only one post from this

category had been filled. It was, therefore, the

case of the Respondent No.1 that being at serial

no.5 of the list of successful candidates amongst

the physically impaired candidates, there were

sufficient number of vacancies in which he could

have been appointed and that the authorities had

acted contrary to the provisions of the above Act 6

upon the faulty reasoning that the vacancies in the

reserved posts could not be declared, without first

identifying the same for the purposes of Sections

32 and 33 of the Disabilities Act, 1995.

4. The case of the Respondent No.1 having been

negated by the Tribunal, the Respondent No.1 as

indicated hereinbefore, moved the High Court and

the High Court, upon accepting the Respondent

No.1's case, set aside the order of the Central

Administrative Tribunal dated 7th April, 2008, and

allowed the Respondent No.1's O.A. No.1397 of 2007

filed before the Tribunal. While allowing the said

application, the High Court, upon observing that a

clear vacancy was available to which the Respondent

No.1 could be accommodated on the basis of his

position in the merit list, issued a mandamus to

the Respondent No.1 to offer him an appointment to

one of the reserved posts by issuing an appropriate

appointment letter, within six weeks from the date 7

of the order. Certain consequential orders were

also passed together with cost of Rs.25,000/- to be

paid by the Petitioner herein.

5. On behalf of the Government of India, which is

the Petitioner herein, learned Additional Solicitor

General, Ms. Indira Jaising, submitted that the

submissions advanced on behalf of the Respondent

No.1 which had been accepted by the High Court,

were not tenable and that the Government of India

had been actively involved in complying with the

provisions of the Disabilities Act, 1995, after it

came into force. The learned ASG contended that

the Government of India had been making reservation

for physically handicapped persons in Group `C' and

`D' posts from 1977 and in order to consider the

growing demand from the visually handicapped

persons, a meeting for identification of jobs in

various Ministries/Departments was scheduled in

1985 and 416 such posts were identified in Group 8

`A' and `B' posts. In 1986, an Office Memorandum

was issued by the Department of Personnel &

Training (DoPT) providing for preference to be

given to handicapped person for these posts. In

1988, another Office Memorandum was issued by the

Government of India indicating that the

identification done in the year 1986 would remain

valid till the same was modified. After the Act

came into force in 1996, a further Office

Memorandum was issued, whereby reservation of

physically handicapped persons in identified Group

`A' and Group `B' posts/services was extended to

posts which were to be filled up through direct

recruitment. Learned ASG submitted that in 1999 the

Ministry of Social Justice & Empowerment

constituted an Expert Committee to identify/review

posts in categories `A, `B', `C' and `D', in which

recommendations were made for identification of

posts for the visually handicapped persons. The

report of the Expert Committee was accepted by the 9

Ministry in 2001 and posts were duly identified for

persons with disabilities. Learned ASG, however,

made it clear that the 416 posts, which had been

identified in 1985, did not include All India

Services and that for the first time in 2005, the

posts of the Indian Administrative Service were

identified in compliance with the provisions of

Section 33 of the Disabilities Act, 1995 and

pursuant to such identification, the posts were

reserved and filled up. Ms. Jaising also submitted

that reservation upto 3% of vacancies in the

reserved posts were, accordingly, identified with

effect from 2006 and the claim of the Respondent

No.1 for appointment on the basis of the argument

that the reservation should have taken effect from

1996 when the Act came into force, was liable to be

rejected.

6. Appearing in-person, Mr. Ravi Prakash Gupta,

the Respondent No.1 herein, strongly defended the 10

impugned judgment of the High Court and urged that

the Special Leave Petition filed by the Government

of India was liable to be dismissed. Mr. Gupta

submitted that the fact that he was completely

blind was known to the Petitioners and their

respective authorities from the very beginning,

since he had annexed his blindness certificate with

his original application in the proforma provided

by the Union Public Service Commission (U.P.S.C.),

which showed the percentage of his blindness as

100%. However, the main thrust of Mr. Gupta's

submissions was that when the Disabilities Act,

1995, came into force in 1996, it was the duty of

the concerned authorities to reserve 3% of the

total vacancies available immediately thereafter.

The plea of non-identification of posts prior to

the year 2006 was only an attempt to justify the

failure of the Petitioners to act in terms of the

Disabilities Act, 1995. Mr. Gupta submitted that

the High Court had negated such contention made on 11

behalf of the Petitioners and rightly directed the

Petitioners to calculate the number of vacancies in

terms of Section 33 of the above Act from 1996 when

the said Act came into force.

7. Mr. Gupta then submitted that in terms of the

Department's OM No.3635/3/2004 dated 29th December,

2005, reservations have been earmarked and should

have been made available from 1996 itself and in

the event the vacancies could not be filled up

owing to lack of candidates, the same could have

been carried forward for two years after which the

same could have been treated as lapsed. Mr. Gupta

submitted that although the Petitioners were fully

aware of the said Office Memorandum, they chose not

to act on the basis thereof and as admitted on

behalf of the Government of India, the IAS cadre

was identified in 2006 for the purposes of Section

33 of the Disabilities Act, 1995. In fact, the Act

remained on paper as far as visually challenged 12

candidates were concerned and only after the

judgments of the Delhi High Court in the case of

Ravi Kumar Arora and in the case of T.D. Dinakar

were delivered, that the identification process was

started. Mr. Gupta submitted that it would be

pertinent to mention that the two above-mentioned

candidates were appointed in the Civil Services

without waiting for identification of their

respective services on the orders of the High

Court.

8. Mr. Gupta submitted that the plea of non-

identification of posts in the IAS till the year

2006 could not absolve the petitioners of their

statutory obligation to provide for reservation in

terms of Section 33 of the aforesaid Act.

9. During the course of hearing, leave had been

granted to one A.V. Prema Nath and one Mr. Rajesh

Singh to intervene in the proceedings. The

submissions made by the Respondent No.1 have been 13

repeated and reiterated on behalf of the Intervenor

No.1, Shri A.V. Prema Nath by A. Sumathi, learned

Advocate. His written submissions are embellished

with references to various decisions of this Court,

including the decision in Francis Coralie Mullin

vs. Administrator, Union Territory of Delhi & Ors.

[(1981) 1 SCC 608], regarding the right to life

under Article 21 of the Constitution. The main

thrust of the submissions is with regard to the

denial of rights to persons with disabilities under

Section 33 of the Disabilities Act, 1995, which

prevent them from enjoying their fundamental rights

to equality and the right to live, by the State.

10. More detailed submissions were made by Mr. S.K.

Rungta, learned Advocate, appearing on behalf of

the Intervenor No.2, Mr. Rajesh Singh, and it was

also sought to be pointed out that the said

intervenor was himself a candidate from amongst the

visually impaired candidates and had, in fact, been 14

placed at serial no.3 in rank in the merit list for

visually impaired candidates in the Central

Services Examinations, 2006, whereas the Respondent

No.1 had been placed at serial no.5. In other

words, what was sought to be projected was that

Shri Rajesh Singh had a better claim for

appointment from amongst the visually impaired

candidates over the Respondent No.1 and that if the

vacancies in the reserved category were to be

calculated from 1996 and even from 2001, when

identification of posts in respect of Civil

Services forming part of the IAS Cadre was sought

to be effected and a notification to that effect

was issued, the Respondent No.1 could not have been

appointed.

11. It was further submitted that in the decision

of this Court in The National Federation of Blind

vs. Union Public Service Commission & Ors. [(1993)

2 SCC 411], the demand by blind candidates for 15

being permitted to write the examination in Braille

script, or with the help of a Scribe, for posts in

the IAS was duly accepted for recruitment to the

lowest posts in the service reserved for such

persons. It was also held that blind and partially

blind persons were eligible for appointment in

Government posts. It was submitted that the

submissions made on behalf of the Petitioners that

the notification in respect of the services in

respect of the Group `A' and `B' services in the

IAS in 2005 was not a fresh exercise, but only an

attempt to consolidate and strengthen the

identification already available and that such an

exercise could at best be said to be enabling and

supplementary action for the smooth implementation

of the statutory provisions containing the scheme

of reservation for persons with disabilities, could

not be taken as an excuse to postpone the benefit

which had already accrued to candidates falling

within 3% of the vacancies indicated in Section 33 16

of the Disabilities Act, 1995. It was also urged

that after the issuance of OM dated 29th December,

2005 and OM dated 26th April, 2006, there was hardly

any room for the Government of India to deny the

benefit of reservation to persons with

disabilities, including the blind, in Civil

Services encompassing the IAS from the year 1996

itself. Furthermore, since the Act itself did not

make any distinction between Group `A' and Group

`B' services and Group `C' and Group `D' services,

it was not available to the Government of India to

contend that since identification had been done

only for Group `C' and Group `D' services, prior to

the year 2005, reservation in respect of Group `A'

and `B' services, which include the IAS, for which

identification was commenced in 2005, would only be

available thereafter.

17

12. On behalf of the Intervenor No.2, it was

submitted that the Special Leave Petition was

liable to be dismissed with exemplary costs.

13. We have examined the matter with great care

having regard to the nature of the issues involved

in relation to the intention of the legislature to

provide for integration of persons with

disabilities into the social main stream and to lay

down a strategy for comprehensive development and

programmes and services and equalization of

opportunities for persons with disabilities and for

their education, training, employment and

rehabilitation amongst other responsibilities. We

have considered the matter from the said angle to

ensure that the object of the Disabilities Act,

1995, which is to give effect to the proclamation

on the full participation and equality of the

people with disabilities in the Asian and Pacific

Region, is fulfilled.

18

14. That the Respondent No.1 is eligible for

appointment in the Civil Services after having been

declared successful and having been placed at

serial no.5 in the disabled category of visually

impaired candidates, cannot be denied. The only

question which is relevant for our purpose is

whether on account of the failure of the

Petitioners to identify posts for persons falling

within the ambit of Section 33 of the Disabilities

Act, 1995, the Respondent No.1 should be deprived

of the benefit of his selection purportedly on the

ground that there were no available vacancies in

the said category. The other question which is

connected with the first question and which also

requires our consideration is whether the

reservation provided for in Section 33 of the

Disabilities Act, 1995, was dependent on

identification of posts suitable for appointment in

such categories, as has been sought to be contended 19

on behalf of the Government of India in the instant

case.

15. Although, the Delhi High Court has dealt with

the aforesaid questions, we wish to add a few

observations of our own in regard to the objects

which the legislature intended to achieve by

enacting the aforesaid Act. The submission made on

behalf of the Union of India regarding the

implementation of the provisions of Section 33 of

the Disabilities Act, 1995, only after

identification of posts suitable for such

appointment, under Section 32 thereof, runs counter

to the legislative intent with which the Act was

enacted. To accept such a submission would amount

to accepting a situation where the provisions of

Section 33 of the aforesaid Act could be kept

deferred indefinitely by bureaucratic inaction.

Such a stand taken by the petitioners before the

High Court was rightly rejected. Accordingly, the 20

submission made on behalf of the Union of India

that identification of Grade `A' and `B' posts in

the I.A.S. was undertaken after the year 2005 is

not of much substance. As has been pointed out by

the High Court, neither Section 32 nor Section 33

of the aforesaid Act makes any distinction with

regard to Grade `A', `B', `C' and `D' posts. They

only speak of identification and reservation of

posts for people with disabilities, though the

proviso to Section 33 does empower the appropriate

Government to exempt any establishment from the

provisions of the said Section, having regard to

the type of work carried on in any department or

establishment. No such exemption has been pleaded

or brought to our notice on behalf of the

petitioners.

16. It is only logical that, as provided in Section

32 of the aforesaid Act, posts have to be

identified for reservation for the purposes of 21 Section 33, but such identification was meant to be

simultaneously undertaken with the coming into

operation of the Act, to give effect to the

provisions of Section 33. The legislature never

intended the provisions of Section 32 of the Act to

be used as a tool to deny the benefits of Section

33 to these categories of disabled persons

indicated therein. Such a submission strikes at

the foundation of the provisions relating to the

duty cast upon the appropriate Government to make

appointments in every establishment (emphasis

added). For the sake of reference, Sections 32 and

33 of the Disabilities Act, 1995, are reproduced

hereinbelow :

"32.Identification of posts which can be reserved for persons with disabilities.- Appropriate Governments shall -

(a) Identify posts, in the establishments, which can be reserved for the persons with disability;

(b) At periodical intervals not exceeding three years, review the list of posts 22

identified and up-date the list taking into consideration the developments in technology.

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-

(i) blindness or low vision;

(ii) hearing impairment;

(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."

17. While it cannot be denied that unless posts are

identified for the purposes of Section 33 of the

aforesaid Act, no appointments from the reserved

categories contained therein can be made, and that 23

to such extent the provisions of Section 33 are

dependent on Section 32 of the Act, as submitted by

the learned ASG, but the extent of such dependence

would be for the purpose of making appointments and

not for the purpose of making reservation. In other

words, reservation under Section 33 of the Act is

not dependent on identification, as urged on behalf

of the Union of India, though a duty has been cast

upon the appropriate Government to make

appointments in the number of posts reserved for

the three categories mentioned in Section 33 of the

Act in respect of persons suffering from the

disabilities spelt out therein. In fact, a

situation has also been noticed where on account of

non-availability of candidates some of the reserved

posts could remain vacant in a given year. For

meeting such eventualities, provision was made to

carry forward such vacancies for two years after

which they would lapse. Since in the instant case

such a situation did not arise and posts were not 24

reserved under Section 33 of the Disabilities

Act, 1995, the question of carrying forward of

vacancies or lapse thereof, does not arise.

18. The various decisions cited by A. Sumathi,

learned Advocate for the first intervenor, Shri

A.V. Prema Nath, are not of assistance in the facts

of this case, which depends on its own facts and

interpretation of Sections 32 and 33 of the

Disabilities Act, 1995.

19. We, therefore, see no reason to interfere with

the judgment of the High Court impugned in the

Special Leave Petition which is, accordingly,

dismissed with costs. All interim orders are

vacated. The petitioners are given eight weeks'

time from today to give effect to the directions of

the High Court.

25

20. The petitioners shall pay the cost of these

proceedings to the respondent No.1 assessed at

Rs.20,000/-, within four weeks from date.

................................................J. (ALTAMAS KABIR)

................................................J. (CYRIAC JOSEPH) New Delhi Dated:7th July, 2010.