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same was subsequently withdrawn since it was the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 <jayinfot...@yahoo.com> wrote:
great news. hope some good will come from order
amit
-----Original Message-----
From: accessindia-boun...@accessindia.org.in
[mailto:accessindia-boun...@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
----------------------------------------------------------------------------
----
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