[AI] Appoint visually handicapped person who cleared IAS exam'

akhilesh akhil.akhil29 at gmail.com
Thu Jul 8 04:25:44 EDT 2010


Hello,
Pasting the judgment in its entirety.
Thankyou,
Akhilesh.
Here it goes:

IN THE SUPREME COURT OF INDIA

             CIVIL APPELLATE JURISDICTION

      SPECIAL LEAVE PETITION (C) NO.14889 OF 2009


Govt. of India
through Secretary & Anr.                 .. Petitioners

                           Vs.

Ravi Prakash Gupta & Anr.                .. Respondents




                    J U D G M E N T


ALTAMAS KABIR, J.



1.    The Government of India, through the Secretary,

Ministry    of     Personnel     &    Public    Grievances,

Department of Personnel and Training and through

the   Secretary,    Ministry     of   Social   Justice    and

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.




On 7/8/10, jayinfotech <jayinfotech at yahoo.com> wrote:
> great news. hope some good will come from order
>
>
> amit
>
> -----Original Message-----
> From: accessindia-bounces at accessindia.org.in
> [mailto:accessindia-bounces at accessindia.org.in] On Behalf Of pradeep banakar
> Sent: Thursday, July 08, 2010 10:07 AM
> To: accessindia
> Subject: [AI] Appoint visually handicapped person who cleared IAS exam'
>
> Appoint visually handicapped person who cleared IAS exam'
> J. Venkatesan
> http://thehindu.com/todays-paper/tp-national/article505093.ece
> New Delhi, July 8, 2010
> The Supreme Court on Wednesday came to the rescue of a visually
> handicapped person who cleared the 2006 Civil Services examination and
> the interview but was denied employment.
>
> It directed the Government of India to appoint him under the
> provisions of Persons with Disabilities (Equal Opportunities,
> Protection, Rights and Full Participation) Act.
>
> A Bench consisting of Justices Altamas Kabir and Cyriac Joseph
> rejected the Centre's contention that since posts for the visually
> handicapped had not been identified, no appointment could be provided
> to respondent Ravi Prakash Gupta. Mr. Gupta, who is 100 per cent
> blind, himself argued the case.
>
> Writing the judgment, Justice Kabir said the fact that the respondent
> was eligible for appointment in the civil services after having been
> declared successful and placed at Serial No. 5 in the Disabled
> Category of the visually impaired candidates could not be denied.
>
> The Centre's contention on implementation of the provisions of Section
> 33 of the Disabilities Act only after identification of posts suitable
> for such appointment "runs counter to the legislative intent with
> which the Act was enacted."
>
> The Bench said that "to accept such a submission would amount to
> accepting a situation where the provisions of Section 33 of the Act
> could be kept deferred indefinitely by bureaucratic inaction. As has
> been pointed out by the High Court, neither Section 32 nor Section 33
> 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 provision
> of the said Section, having regard to the type of work carried on in
> any department or establishment."
>
> The judges said, "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."
>
> In the instant case, the Delhi High Court set aside the orders of the
> Central Administrative Tribunal rejecting the relief sought for by Mr.
> Gupta. It directed the Centre to grant him appointment as there was
> sufficient number of vacancies in which he could be appointed. The
> present appeal by the Centre is directed against this order.
>
> The Supreme Court Bench, while declining to interfere with the High
> Court order, granted the Centre eight weeks for complying with the
> directions.
>
> Disapproving of the Centre's stand, the Bench imposed Rs.20,000 costs
> on it to be paid in four weeks.
>
>
>
>
> ----------------------------------------------------------------------------
> ----
>
> Bench asks government to give him job under the Disabilities Act
> Rejects Centre's contention that Act could be implemented only after
> identification of posts
>
>
> ----------------------------------------------------------------------------
> ----
>
> Voice your thoughts in the blog to discuss the Rights of persons with
> disability bill at:
> http://www.accessindia.org.in/harish/blog.htm
>
> To unsubscribe send a message to accessindia-request at accessindia.org.in with
> the subject unsubscribe.
>
> To change your subscription to digest mode or make any other changes, please
> visit the list home page at
>   http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in
>
>
> Voice your thoughts in the blog to discuss the Rights of persons with
> disability bill at:
> http://www.accessindia.org.in/harish/blog.htm
>
> To unsubscribe send a message to accessindia-request at accessindia.org.in with
> the subject unsubscribe.
>
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