Allahabad High Court
Ashok Kumar Dwivedi vs State Of U.P.Through Its Secy.Dept.Of ... on 30 January, 2023
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 01.08.2022 Delivered on: 30.01.2023 Court No. - 5 Case :- WRIT - A No. - 5009 of 2010 Petitioner :- Ashok Kumar Dwivedi Respondent :- State Of U.P.Through Its Secy.Dept.Of Law Lucknow And Others Counsel for Petitioner :- Ramesh Chandra Counsel for Respondent :- C.S.C.,Gaurav Mehrotra, P.K. Agarwal Hon'ble Irshad Ali,J.
1. Heard Sri Ramesh Chandra, learned counsel for the petitioner, Sri P.K. Agarwal, learned C.S.C. and Sri Gaurav Mehrotra, learned counsel for respondents.
2. The present writ petition has been filed before this Court seeking a writ, order or direction in the nature of certiorari quashing the select list dated 14.04.2010 along with consequential appointments made in pursuance thereof, so as to make selection of the petitioner on Class III post under 3% reservation quota provided to persons belonging to physically handicapped category in District Judgeship Barabanki.
3. Brief facts of the case are that an advertisement was issued on 30.07.2004 by respondent No.2 for filling up 18 posts of clerks, 3 posts of paid apprentice and process server etc. in the District Judgeship of Barabanki.
4. The petitioner being eligible and qualified candidate having all requisite qualification applied for the post of Clerk under physically handicapped quota. His application form on being found correct in all respects, the admit card was issued to him for the written examination scheduled to be held on 28.09.2014 in different centers in district Barabanki. The petitioner appeared in the said examination with Roll No.01579.
5. Select list of Class III employees was published on 05.11.2004 and one Amit Kumar Awasthi S/o Rajendra Prasad Awasthi was found selected under reserved quota of physically handicapped category of 3%.
6. The selected list of Class III employees dated 05.11.2004 as well as select list of class IV employees dated 04.11.2004 was challenged before this Court by way of various writ petitions with leading Writ Petition No.7021 (S/S) of 2004; Dinesh Kumar Vs. State of U.P. and others, wherein vide order dated 19.01.2006 the aforesaid select lists were quashed.
7. The order dated 19.01.2006 was challenged in Special Appeal No.76 of 2006; Shyam Babu Vaish Vs. Dinesh Kumar and others, wherein vide order dated 19.07.2006, the order dated 19.01.2006 was modified and direction was issued to respondent No.2 for conducting fresh written test and interview of candidates in accordance with applicable rules, who appeared in the examination held in the year 2004. In pursuance thereof, respondent No.2 issued fresh notification in October, 2006 for filling the post of Clerks (Class III) and process server etc. (Class IV) employees.
8. Against the aforesaid notification, a clarification application was filed in Special Appeal No.63 of 2006; Sanjai Kumar and others Vs. Anupam Prakash and others, wherein vide order dated 31.01.2007 the Division Bench of this Court has observed that the District Judge was not justified in calling for fresh application on 08.10.2006 and the selection process was directed to be confined to the candidates, who had already submitted application forms pursuant to earlier notification dated 30.07.2004.
9. The order dated 31.01.2007 was challenged in Civil Appeal No.4201 of 2009; Ravindra Kumar Singh and others Vs. Vidya Dhiraj Pandey and others, wherein the order dated 31.01.2007 was affirmed vide order dated 09.07.2009. Thereafter, respondent No.2 issued duplicate admit card to the petitioner with previous Roll No.01579 for written test of Class III employee scheduled to be held on 11.04.2010 at Government Inter College, Barabanki and in pursuance thereof, the petitioner appeared in the aforesaid examination, result whereof was declared on 14.04.2010, however, merit list of the same was not published by the respondents and no-one has been selected under 3% quota of physically handicapped category. Hence, the present writ petition has been preferred before this Court.
10. Submission of learned counsel for the petitioner is that the petitioner is a physically handicapped person suffering from locomotor disability and cerebral palsy and has been declared to be handicapped by 40% by Chief Medical Officer, Barabanki. He applied under physically handicapped category of 3% having all requisite qualifications for the post of clerk in pursuance to aforesaid advertisement.
11. He further submitted that the petitioner appeared in the aforesaid examination scheduled to be held on 28.09.2004 with Roll No.01579 and in the select list, one Amit Kumar Awasthi S/o Rajendra Prasad Awasthi was found to be selected under 3% quota of handicapped persons. The selected list of Class III employees dated 05.11.2004 and select list of Class IV employees dated 04.11.2004 was challenged before this Court in Writ Petition No.7021 (S/S) of 2004 and the same was quashed by the Court vide order dated 19.01.2006. Against the order dated 19.01.2006, Special Appeal No.76 of 2006 was filed, wherein vide order dated 19.07.2006, the order dated 19.01.2006 was modified and direction was issued to respondent No.2 to take recourse of fresh written test and interview of the candidates, who appeared in the year 2004, however, the respondent No.2 issued a fresh notification on 08.10.2006 for filing up the posts from open market, which is in contravention of directions issued by this Court.
12. He next submitted that on invitation of fresh applications from open market, an application for clarification of order dated 19.07.2006 was filed in Special Appeal No.63 of 2006, wherein vide order dated 31.01.2007 the Division Bench of this Court has observed that the District Judge was not justified in calling for fresh application on 08.10.2006 and the selection process was to be confined to the candidates, who had already submitted application forms in pursuance to notification dated 30.07.2004, therefore, the act of the respondents was illegal and arbitrary in nature.
13. He further submitted that against the order dated 31.01.2007, Special Leave Petition (Civil) No.14326 of 2006 was filed and in Civil Appeal No.4201 of 2009 arising out of aforesaid SLP, Hon'ble the Supreme Court of India vide order dated 09.07.2009 affirmed the order dated 31.01.2007 and in pursuance thereof, duplicate admit card was issued to the petitioner with same roll number and the petitioner appeared in the examination for the same post and result of the same was declared without publishing the merit list and no-one has been found selected under 3% quota of reserved category of physically handicapped persons.
14. He next submitted that 3% quota belonging to physically handicapped category is horizontal in nature. Meaning thereby, if a physically handicapped person belongs to general category, his name shall be adjusted in the select list among the candidates of general category and same is the condition with other backward castes and scheduled castes category.
15. He lastly submitted that due to non providing reservation of 3% to physically handicapped persons, the whole selection process is vitiated in law, illegal and is liable to be quashed.
16. In support of his submissions, he placed reliance upon following judgments:
a) Ashok Kumar Giri Vs. Union of India and others; (2016) 6 SCC 511.
b) Union of India and others Vs. National Federation of Blind and others; (2013) 10 SCC 772.
c) Govt. of India through Secretary and others Vs. Ravi Prakash Gupta and others; (2010) 7 SCC 626.
d) Dr. Ravindra Kumar Pandey Vs. State of U.P. and others; 2006 (6) ALJ 536.
e) State of U.P. and others Vs. Pawan Kumar Tiwari and others; (2005) 2 SCC 10.
f) Vinod Kumar Rai Vs. State of U.P. and others; 2002 (20) LCD 283.
17. On the other hand, learned A.C.S.C. for the respondents submitted that Section 3 of U.P. Public Service (Reservation) for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen Act, 1993 (for short, "Act of 1993") provides that there is 3% reservation for physically handicapped persons, which are divided into three categories:
i) blindness or low vision
ii) hearing impairment
iii) locomotor disability or cerebral palsy.
18. He further submitted that the petitioner has alleged 3% reservation for physically handicapped quota, however, sub-section 2 of Section 3 of Act of 1993 provides that in public services and posts, as the State Government may, by notification, identify 1% of vacancy each for the person suffering from above-mentioned disabilities.
19. He further submitted that as per sub-section 2 of Section 3 of Act of 1993, the petitioner falls under 1% reservation for locomotor disability but there are only 18 posts and 1% comes to below 0.5%, which would be counted as '0' and, therefore, the petitioner could not be given benefit of the Act of 1993.
20. He next submitted that in the select list for Class III employees, 9 candidates were selected in General Category, 5 candidates were selected in Other Backward Class and 4 candidates were selected under Scheduled Castes Category and no candidate belonging to physically handicapped category could be selected due to reason that no vacancy was available for the said category as per Act of 1993. He, therefore, requested that the writ petition being baseless is liable to be rejected.
21. In support of his submissions, he placed reliance upon following judgments:
a) Sankar Mondal Vs. The State of West Bengal and others; Civil Appeal No.1924 of 2010.
b) Union of India and another Vs. National Federation of the Blind and others; (2013) 10 SCC 772.
c) High Court of Judicature at Allahabad Vs. Robin Singh and 44 others; Special Appeal No.276 of 2022, order dated 22.07.2022.
d) Dr Suresh Chandra Verma and others Vs. The Chancellor, Nagpur University and others; (1990) 4 SCC 55.
22. Sri Gaurav Mehrotra, learned counsel for the respondent very fairly submitted that the vacancy for physically handicapped had to be worked out on total number of vacancies for which selection was being held. He further submitted that minimum 3% of vacancies of posts in the establishments 1% each has to be given to each of the 3 categories of disability viz., blind and low vision, hearing impaired and locomotor disabled or cerebral palsy separately and the number of appointments equivalent to the 1% for each disability out of total 3% has to be made against the vacancies in the identified posts.
23. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
24. To resolve the controversy involved in the present writ petition, the judgments relied upon by learned counsel for the parties are being quoted below:
- Judgments relied upon by learned counsel for the petitioner:
- Ashok Kumar Giri (Supra):
"Today, when this appeal was heard, the learned Additional Solicitor General fairly pointed out the ratio laid down by this Court as set out in paragraph 30, which reads as under:-
"30. The question for determination raised in this case is whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32. In Ravi Prakash case, the Government of India sought to contend that since they have conducted the exercise of identification of posts in civil services in terms of Section 32 only in the year 2005, the reservation has to be computed and applied only with reference to the vacancies filled up from 2005 onwards and not from 1996 when the Act came into force. This Court, after examining the inter-dependence of Sections 32 and 33 viz., identification of posts and the scheme of reservation, rejected this contention and held as follows:-
"25. ...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 submission made on behalf of the Union of India that identification of Groups A and B posts in the I.A.S. was undertaken after the year 2005 is not of much substance.
26. 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 Groups 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.
27. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purpose of 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.
29. 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 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 reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.
31. 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."
5. Having regard to the said authoritative pronouncement by this Court that 3% reservation for differently abled persons will have to be computed on the basis of total vacancies of the cadre and not on the basis of the vacancies available in the identified post, namely, at the time of notification calling for applications to fill up the available vacant vacancies, it is imperative for the High Court to examine the said position by applying the various deliberations and reasoning drawn in the above decision of this Court and also by calling upon the parties, in particular, the respondents herein to furnish the details as regards the cadre strength and the available vacancies, if any, to be provided for in the respective reserved posts. In the light of above judgment, based on such additional information to be furnished by the respondents as well as any information to be furnished on behalf of the appellant, it will be appropriate for the Division Bench to come to a definite conclusion, whether or not the appellant will be entitled for any relief to be granted in the writ petition.
6. Therefore, while setting aside the impugned judgment, remit the case back to the High Court for deciding the writ petition afresh, in the light of the judgment of this Court referred to above. With the above observations and directions, the appeal stands disposed of."
- Union of India and others (Supra):
"31) A perusal of Section 33 of the Act reveals that this section has been divided into three parts. The first part is "every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability." It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the Section.
32) The second part of this section starts as follows: "...of which one percent each shall be reserved for persons suffering from blindness or low vision, hearing impairment & locomotor disability or cerebral palsy in the posts identified for each disability." From the above, it is clear that it deals with distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word "of which". The word "of which" has to relate to appointing not less than 3% vacancies in an establishment and, in any way, it does not refer to the identified posts. In fact, the contention of the Union of India is sought to be justified by bringing the last portion of the second part of the section viz. "....identified posts" in this very first part which deals with the statutory obligation imposed upon the appropriate Government to "appoint not less than 3% vacancies for the persons or class of persons with disabilities." In our considered view, it is not plausible in the light of established rules of interpretation. The minimum level of representation of persons with disabilities has been provided in this very first part and the second part deals with the distribution of this 3% among the three categories of disabilities. Further, in the last portion of the second part the words used are "in the identified posts for each disability" and not "of identified posts". This can only mean that out of minimum 3% of vacancies of posts in the establishments 1% each has to be given to each of the 3 categories of disability viz., blind and low vision, hearing impaired and locomotor disabled or cerebral palsy separately and the number of appointments equivalent to the 1% for each disability out of total 3% has to be made against the vacancies in the identified posts. The attempt to read identified posts in the first part itself and also to read the same to have any relation with the computation of reservation is completely misconceived.
33) The third part of the Section is the proviso which reads thus: "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." The proviso also justifies the above said interpretation that the computation of reservation has to be against the total number vacancies in the cadre strength and not against the identified posts. Had the legislature intended to mandate for computation of reservation against the identified posts only, there was no need for inserting the proviso to Section which empowers the appropriate Government to exempt any establishment either partly or fully from the purview of the Section subject to such conditions contained in the notification to be issued in the Official Gazette in this behalf. Certainly, the legislature did not intend to give such arbitrary power for exemption from reservation for persons with disabilities to be exercised by the appropriate Government when the computation is intended to be made against the identified posts.
34) In this regard, another provision of the said Act also supports this interpretation. Section 41 of the said Act mandates the appropriate Government to frame incentive schemes for employers with a view to ensure that 5% of their work force is composed of persons with disabilities. The said section is reproduced hereinbelow:
"41. Incentives to employers to ensure five per cent of the work force is composed of persons with disabilities.- The appropriate Government and the local authorities shall, within limits to their economic capacity and development, provide incentives to employers both in public and private sectors to ensure that at least five percent of their work force is composed of persons with disabilities." Thus, on a conjoint reading of Section 33 and 41, it is clear that while Section 33 provides for a minimum level of representation of 3% in the establishments of appropriate Government, the legislature intended to ensure 5% of representation in the entire work force both in public as well as private sector.
35) Moreover, the intention of the legislature while framing the Act can also be inferred from the Draft Rights of Persons with Disabilities Bill, 2012, which is pending in the Parliament for approval. In Chapter 6 of the Bill, viz., Special Provisions for Persons with Benchmark Disabilities, similar sections like Section 32 & 33 in the Act have been incorporated under Sections 38 & 39 which are as under:-
"Section 38. Identification of Posts which can be Reserved for Persons with Benchmark Disabilities:
Appropriate Governments shall - (a) identify posts in establishments under them which can be reserved for persons with benchmark disability as mentioned in section 39;
(b) at periodical intervals not exceeding three years, review and revise the list of identified posts, taking into consideration developments in technology.
Section 39. Reservation of Posts for Persons with Benchmark Disabilities:-
(1) Every appropriate Government shall reserve, in every establishment under them, not less than 5% of the vacancies meant to be filled by direct recruitment, for persons or class of persons with benchmark disability, of which 1% each shall be of all posts reserved for persons with following disabilities:-
i) blindness & low vision (with reservation of 0.5% of the vacancies for each of the two disabilities).
ii) hearing impairment & speech impairment.
iii) locomotor disability including cerebral palsy, leprosy cured and muscular dystrophy.
iv) autism, intellectual disability and mental illness
v) multiple disabilities from among i to iv above including deaf blindness 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.
(2) If sufficient number of qualified persons with benchmark disabilities are not available in a particular year, then the reservation may be carried forward for upto the next three recruitment years, and if in such succeeding recruitment years also a suitable person with benchmark disability is not available, then the post in the fourth year may be first filled by interchange among the categories of disabilities; and only when there is no person with any benchmark disability available for the post in that year, the vacancy may be filled by appointment of a person, other than a person with benchmark disability." A perusal of Sections 38 & 39 of the Bill clarifies all the ambiguities raised in this appeal. The intention of the legislature is clearly to reserve in every establishment under the appropriate Government, not less than 3% of the vacancies for the persons or class of persons with disability, of which 1% each shall be reserved for persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy in the posts identified for each disability.
36) Admittedly, the Act is a social legislation enacted for the benefit of persons with disabilities and its provisions must be interpreted in order to fulfill its objective. Besides, it is a settled rule of interpretation that if the language of a statutory provision is unambiguous, it has to be interpreted according to the plain meaning of the said statutory provision. In the present case, the plain and unambiguous meaning of Section 33 is that every appropriate Government has to appoint a minimum of 3% vacancies in an establishment out of which 1% each shall be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor or cerebral palsy.
37) To illustrate, if there are 100 vacancies of 100 posts in an establishment, the concerned establishment will have to reserve a minimum of 3% for persons with disabilities out of which at least 1% has to be reserved separately for each of the following disabilities: persons suffering from blindness or low vision, persons suffering from hearing impairment and the persons suffering from locomotor disability or cerebral palsy. Appointment of 1 blind person against 1 vacancy reserved for him/her will be made against a vacancy in an identified post for instance, the post of peon, which is identified for him in group D. Similarly, one hearing impaired will be appointed against one reserved vacancy for that category in the post of store attendant in group D post. Likewise, one person suffering from locomotor disability or cerebral palsy will be appointed against the post of "Farash" group D post identified for that category of disability. It was argued on behalf of Union of India with reference to the post of driver that since the said post is not suitable to be manned by a person suffering from blindness, the above interpretation of the Section would be against the administrative exigencies. Such an argument is wholly misconceived. A given post may not be identified as suitable for one category of disability, the same could be identified as suitable for another category or categories of disability entitled to the benefit of reservation. In fact, the second part of the Section has clarified this situation by providing that the number of vacancies equivalent to 1% for each of the aforementioned three categories will be filled up by the respective category by using vacancies in identified posts for each of them for the purposes of appointment."
- Govt. of India through Secretary and others (Supra):
"3. 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.
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 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 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 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 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 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 reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise. "
- Dr. Ravindra Kumar Pandey (Supra):
"20. The aforesaid advertisement, thus, provided reservation for physically handicapped candidates in accordance with law and orders issued by the Government. But what the Commission did was to completely ignore the law. In paragraph 9 of the counter affidavit extracted earlier it is stated that no post was reserved for physically handicapped in the advertisement. The counter affidavit was sworn by Deputy Director Higher Education Commission. He must be a senior officer who must have been aware of his responsibilities. The averment is contrary to the advertisement which clearly provided that reservation to physically handicapped etc. would be provided in accordance with law and government orders issued from time to time. The law has been explained above. If the law would have been applied the Commission would have made selection for physically handicapped. It could not take cover under the plea that no post was reserved for physically handicapped. It was not open to the Commission to ignore the law. The vacancy for physically handicapped was not required to be notified. It was not vertical reservation. The reservation for physically handicapped was to be provided as a matter of law.
21. The next question is how the vacancy for physically handicapped had to be worked out. This was subject matter of vehement argument by learned Counsel for the respondents. From the counter affidavit filed by the respondents it is quite clear that the Commission and the State were of the opinion that no vacancy having been reserved for physically handicapped there was no question of considering the petitioner as one of the candidate for the same. It was only in the alternative it was stated that even assuming that the physically handicapped was entitled for reservation then the petitioner being a candidate of General category and there being only 21 vacancies in General category, 3% of 21 being less than 0.5, the petitioner was not entitled to it. Both assumptions are founded on complete misapprehension about the policy of reservation. We have explained that vacancy for physically handicapped was not necessary to be notified. It was to be considered as a matter of law. As regards working out of the vacancy it may be mentioned that horizontal reservations are not caste/category based. They are class based. The reservation for the class of physically handicapped is three percent. They being unfortunate persons have been treated as a different class which needed legislative protection. It is to bring them in social stream by making them feel positive. The endeavour is to wipe out the inequality in social participation by those who are not so fortunate. The reservation is for a class of persons who satisfy the disabilities mentioned in Section 3(1)(ii) of the U.P. Act No. 4 of 1993 as amended from time to time. The categorisation is to specify the disability which would enable a person to claim the benefit. The Legislative intent appears to make the category exhaustive. It is only those persons who suffer from the disability mentioned in the section who are entitled to claim reservation. The extent of protection has been determined by Central Legislature by directing that it should not be less than three percent. Who would be entitled for such benefit is mentioned and one percent has been marked for each category of disability. Therefore reservation for physically handicapped has to be worked out on three percent at the stage of direct reservation in public services and posts in connection with the affairs of the State. The allocation of one percent each to different category of disability is to avoid undue benefit of reservation to one or the other category. That cannot be the yardstick for determining percentage of reservation. The provision providing for reservation for physically handicapped by the State has to be read and understood as three percent. Any other interpretation may result in creating conflict in the Central and State legislation. We reach the same conclusion even if Section 3(1)(ii) of the U.P. Act No. 4 of 1993 is read on its own. It provides one percent reservation to three categories of physically handicapped. Therefore, the total reservation for physically handicapped comes to three percent. The allocation of one percent to each category, had to be totalled to arrive at the percentage of reservation for the class of physically handicapped. The allocation or bifurcation of vacancies to different categories of handicap cannot reduce the percentage of reservation for physically handicapped. Any other construction would result in reducing reservation to 1 per cent to three categories mentioned in Section 3(1) (K) instead of it being 3% for physically handicapped.
26. The provision for adjustment of selected candidate to the caste/category to which he belongs has erroneously been construed as horizontal reservation being caste/category based. The vacancy for physically handicapped had to be worked out on total number of vacancies for which selection was being held and not by working out to the caste/category to which a candidate applying as physically handicapped belonged. The G.O. extracted earlier does not directly or indirectly provides that the vacancy for physically handicapped should be worked out caste/category wise. The allocation of one percent vacancy for different categories of physically handicapped could not form the basis for determining the percentage of reservation for physically disabled. The assumption made by the Commission that since the physically handicapped candidates had to be adjusted in the caste/category therefore the determination of vacancy had to be decided on the number of vacancies existing for a caste/category is unsound and against the principle of horizontal reservation as explained by the Apex Court. The Legislature did not permit working out percentage on vacancies of General, OBC or SC. It had to be three percent of the total vacancies and then the selected candidate had to be adjusted as provided in the G.O. to the caste/category to which the candidate belonged."
- State of U.P. and others (Supra):
"We do not find fault with any of the two reasonings adopted by the High Court. The rule of rounding off based on logic and common sense is: if part is one-half or more, its value shall be increased to one and if part is less than half then its value shall be ignored. 46.50 should have been rounded off to 47 and not to 46 as has been done. If 47 candidates would have been considered for selection in general category, the respondent was sure to find a place in the list of selected meritorious candidates and hence entitled to appointment."
- Vinod Kumar Rai (Supra):
"7. Apart from this the High Court in its Full Court meeting held on 7.3.98 has already taken a decision for granting reservation in favour of physically handicapped candidates in recruitment to judicial service also, vide paragraph 9 of the counter affidavit of Shri T.M. Khan in Writ Petition NO.7530 of 1998.
8. Learned counsel for the High Court and learned standing counsel have relied on the decision of the High Court in State of Bihar and another v. Bal Mukund Sah and others, AIR 2000 SC 1296 wherein it has been held that there can be no reservation in Judicial Service unless the Hihg Court is consulted. We have already mentioned that the High Court had been consulted when framing the U.P. Higher Judicial Service Rules 1975. In addition we have seen the resolution of the Full Court meeting of the High Court, Allahabad held on 7.3.98 which has agreed for providing reservation for physically handicapped persons in the Judicial Services.
9. In paragraph 5 of the counter affidavit in this case Rule 15 of the U.P. Higher Judicial Service Rules, 1975 has been quoted, which states:-
"15. Physical fitness:
No persons shall be appointed to the service by direct recruitment unless he is in good mental and bodily health and free from any physical defect likely to interfere with efficient performance of his duties as Member of the service. Before a person is appointed, he shall be required to appear before the Medical Board, who will examine him and certify as fit or unfit for appointment to the service."
10. A perusal of the above rules shows that the persons to be appointed must be physically and mentally able to discharge his function efficiently as a Judge, and he has to be certified as such by the Medical Board.
11. We have to read the above Rule 15 alongwith the U.P. Acts of 1993 and 1997 and the relevant notifications. A harmonious construction leads us to the inference that while there is certainly reservation for physically handicapped persons bu this is subject to the condition that such persons should not suffer from such a handicap which would interfere with efficient discharge of duty as a Judge, and this must be certified by the Medical Board.
12. Since 38 vacancies in the H.J.S. had been advertised, and since there is 3% reservation for physically handicapped persons, it follows that one of these 38 vacancies should be available to physically handicapped persons, subject to the condition mentioned above."
- Judgments relied upon by learned counsel for the respondents:
- Sankar Mondal (Supra):
"The fact that the advertisement was of the year 1999 and we are in 2022, i.e. 24 years hence itself is an impediment in any relief to the appellant. However, that itself would not non-suit the appellant as learned counsel for the appellant contends that the appellant is now about 45 years plus hence it is submitted that he still has time to serve out. The fact however, remains that the impediment in the way of the appellant was the lack of police verification report which subsequently went against the appellant.
In our view, in a recruitment process, a candidate cannot be permitted to approach for redressal, howsoever may be the genuineness of the grievance, at any stage of time as there has to be a closure to the process of recruitment. In case of an advertisement dated 1999, the appellant cannot be permitted to plead that he was waiting for seven long years for getting an appointment letter and then woke up to file the O.A. before the State Administrative Tribunal. This itself is a ground to non-suit the appellant.
In view of the aforesaid, we are not commenting on the factual correctness of the police verification report which is sought to be disputed by the appellant.
The appeal is accordingly dismissed."
- Union of India and another (Supra):
"33) A perusal of Section 33 of the Act reveals that this section has been divided into three parts:
- 33.1. The first part is:
- 33. Reservation of posts- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability......"
It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the Section.
33.2) The second part of this section starts as follows:
"...of which one percent each shall be reserved for persons suffering from -
(i) blindness or low vision,
(ii) hearing impairment; and
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability."
From the above, it is clear that it deals with distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word "of which". The word "of which" has to relate to appointing not less than 3% vacancies in an establishment and, in any way, it does not refer to the identified posts. In fact, the contention of the Union of India is sought to be justified by bringing the last portion of the second part of the section viz. "....identified posts" in this very first part which deals with the statutory obligation imposed upon the appropriate Government to "appoint not less than 3% vacancies for the persons or class of persons with disabilities." In our considered view, it is not plausible in the light of established rules of interpretation. The minimum level of representation of persons with disabilities has been provided in this very first part and the second part deals with the distribution of this 3% among the three categories of disabilities. Further, in the last portion of the second part the words used are "in the identified posts for each disability" and not "of identified posts". This can only mean that out of minimum 3% of vacancies of posts in the establishments 1% each has to be given to each of the 3 categories of disability viz., blind and low vision, hearing impaired and locomotor disabled or cerebral palsy separately and the number of appointments equivalent to the 1% for each disability out of total 3% has to be made against the vacancies in the identified posts. The attempt to read identified posts in the first part itself and also to read the same to have any relation with the computation of reservation is completely misconceived.
33.3) The third part of the Section is the proviso which reads thus:
"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."
The proviso also justifies the above said interpretation that the computation of reservation has to be against the total number vacancies in the cadre strength and not against the identified posts. Had the legislature intended to mandate for computation of reservation against the identified posts only, there was no need for inserting the proviso to Section which empowers the appropriate Government to exempt any establishment either partly or fully from the purview of the Section subject to such conditions contained in the notification to be issued in the Official Gazette in this behalf. Certainly, the legislature did not intend to give such arbitrary power for exemption from reservation for persons with disabilities to be exercised by the appropriate Government when the computation is intended to be made against the identified posts."
- Dr Suresh Chandra Verma and others (Supra):
"14. We are, therefore, in complete agreement with the view taken by the Full Bench that the employment notice dated July 27, 1984 was bad in law since it had failed to notify the reservations of the posts subjectwise and had mentioned only the total number of reserved posts without indicating the particular posts so reserved subjectwise."
25. On perusal of aforesaid judgments, it is evident that every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. It is also clear from perusal of aforesaid judgments that it deals with distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word "of which". The word "of which" has to relate to appointing not less than 3% vacancies in an establishment and, in any way, it does not refer to the identified posts. It deals with the statutory obligation imposed upon the appropriate Government to "appoint not less than 3% vacancies for the persons or class of persons with disabilities".
26. Meaning thereby, a minimum of 3% of vacancies of posts in the establishments 1% each has to be given to each of the 3 categories of disability viz. blind and low vision, hearing impaired and locomotor disabled of cerebral palsy separately and the number of appointments equivalent to the 1% for each disability out of total 3% has to be made against the vacancies in the identified posts.
27. The proviso also justifies the above said interpretation that computation of reservation has to be against the total number of the vacancies in the cadre strength and not against the identified posts. Had the legislature intended to mandate for computation of reservation against the identified posts only, there was no need for inserting the proviso to Section which empowers the appropriate Government to exempt any establishment either partly or fully from the purview of the Section subject to such conditions contained in the notification to be issued in the Official Gazette in this behalf. Certainly, the legislature did not intend to give such arbitrary power for exemption from reservation for persons with disabilities to be exercised by the appropriate Government when the computation is intended to be made against the identified posts.
28. I am, therefore, in complete agreement with the view taken by the Full Bench that the employment notice was bad in law since it had failed to notify the reservations of the posts subjectwise and had mentioned only the total number of reserved posts without indicating the particular posts so reserved subjectwise.
29. The question for determination raised in this case is whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32. In Ravi Prakash case, the Government of India sought to contend that since they have conducted the exercise of identification of posts in civil services in terms of Section 32 only in the year 2005, the reservation has to be computed and applied only with reference to the vacancies filled up from 2005 onwards and not from 1996 when the Act came into force.
30. Having regard to the said authoritative pronouncement by this Court that 3% reservation for differently abled persons will have to be computed on the basis of total vacancies of the cadre and not on the basis of the vacancies available in the identified post, namely, at the time of notification calling for applications to fill up the available vacant vacancies, it is imperative for the High Court to examine the said position by applying the various deliberations and reasoning drawn in the above decision of this Court and also by calling upon the parties, in particular, the respondents herein to furnish the details as regards the cadre strength and the available vacancies, if any, to be provided for in the respective reserved posts. In the light of above judgment, based on such additional information to be furnished by the respondents as well as any information to be furnished on behalf of the appellant, it will be appropriate for the Division Bench to come to a definite conclusion, whether or not the appellant will be entitled for any relief to be granted in the writ petition.
31. The next question is how the vacancy for physically handicapped had to be worked out. It was only in the alternative it was stated that even assuming that the physically handicapped was entitled for reservation then there being only 18 vacancies, 3% of "18" being less than "0", the petitioner was not entitled to it. The assumptions is founded on complete misapprehension about the policy of reservation. I have explained that vacancy for physically handicapped was not necessary to be notified. It was to be considered as a matter of law. As regards working out of the vacancy, it may be mentioned that horizontal reservations are not caste/category based. They are class based. The reservation for the class of physically handicapped is "3" percent. They being unfortunate persons have been treated as a different class which needed legislative protection. It is to bring them in social stream by making them feel positive. The endeavour is to wipe out the inequality in social participation by those who are not so fortunate. The reservation is for a class of persons who satisfy the disabilities mentioned in Section 3(1)(ii) of the U.P. Act No. 4 of 1993 as amended from time to time. The categorisation is to specify the disability, which would enable a person to claim the benefit. The Legislative intent appears to make the category exhaustive. It is only those persons, who suffer from the disability mentioned in the section who are entitled to claim reservation. The extent of protection has been determined by Central Legislature by directing that it should not be less than three percent. Who would be entitled for such benefit is mentioned and one percent has been marked for each category of disability. Therefore reservation for physically handicapped has to be worked out on three percent at the stage of direct reservation in public services and posts in connection with the affairs of the State. The allocation of one percent each to different category of disability is to avoid undue benefit of reservation to one or the other category. That cannot be the yardstick for determining percentage of reservation. The provision providing for reservation for physically handicapped by the State has to be read and understood as three percent. Any other interpretation may result in creating conflict in the Central and State legislation. I reach the same conclusion even if Section 3(1)(ii) of the U.P. Act No. 4 of 1993 is read on its own. It provides one percent reservation to three categories of physically handicapped. Therefore, the total reservation for physically handicapped comes to three percent. The allocation of one percent to each category, had to be totalled to arrive at the percentage of reservation for the class of physically handicapped. The allocation or bifurcation of vacancies to different categories of handicap cannot reduce the percentage of reservation for physically handicapped. Any other construction would result in reducing reservation to 1 per cent to three categories mentioned in Section 3(1) (K) instead of it being 3% for physically handicapped.
32. The provision for adjustment of selected candidates to the caste/category to which they belongs has erroneously been construed as horizontal reservation being caste/category based. The vacancy for physically handicapped had to be worked out on total number of vacancies for which selection was being held and not by working out to the caste/category to which a candidate applying as physically handicapped belonged. The G.O. extracted earlier does not directly or indirectly provides that the vacancy for physically handicapped should be worked out caste/category wise. The allocation of one percent vacancy for different categories of physically handicapped could not form the basis for determining the percentage of reservation for physically disabled. The Legislature permits the reservation to be three percent of the total vacancies and then the selected candidate had to be adjusted as provided in the G.O. to the caste/category to which the candidate belonged.
33. The provision of reservation of 3% has been provided as, one percent each shall be reserved for persons suffering from blindness or low vision, hearing impairment & locomotor disability or cerebral palsy in the posts identified for each disability." Meaning thereby, it is crystal clear that it deals with distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word "of which". The word "of which" has to relate to appointing not less than 3% vacancies in an establishment and, in any way, it does not refer to the identified posts. The minimum level of representation of persons with disabilities has been provided in this very first part and the second part deals with the distribution of this 3% among the three categories of disabilities. Further, in the last portion of the second part the words used are "in the identified posts for each disability" and not "of identified posts". This can only mean that out of minimum 3% of vacancies of posts in the establishments 1% each has to be given to each of the 3 categories of disability viz., blind and low vision, hearing impaired and locomotor disabled or cerebral palsy separately and the number of appointments equivalent to the 1% for each disability out of total 3% has to be made against the vacancies in the identified posts. The attempt to read identified posts in the first part itself and also to read the same to have any relation with the computation of reservation is completely misconceived.
34. In view of the above, this Court is of the considered opinion that the impugned select list dated 14.04.2010 so far as it pertains to non-representation of 3% reservation to physically handicapped quota is illegal and cannot be sustained and is hereby quashed.
35. The writ petition succeeds and is partly allowed.
36. The respondents are directed to reconsider the claim of the petitioner for appointment on Class III post under 3% reservation quota provided to persons belonging to physically handicapped category in District Judgeship Barabanki.
37. Necessary order in this regard shall be passed within a period of six weeks from the date of production of a certified copy of this order.
Order Date :- 30.01.2023 Adarsh K Singh