Allahabad High Court
Shakti Pratap Singh vs State Of U.P.Thr.Prn Secy Appointment ... on 27 January, 2023
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 5 [Reserved] Case :- WRIT - A No. - 2000991 of 2006 Petitioner :- Shakti Pratap Singh Respondent :- State Of U.P.Thr.Prn Secy Appointment And 2 Ors Counsel for Petitioner :- Upendra Math Misra,Apoorva Tewari,Manoj Kumar Mishra,Prashast Puri,Vageesh Pandey Counsel for Respondent :- C.S.C,I.P.Singh,Syyad Ali Rehan Hon'ble Irshad Ali,J.
1. Heard Shri Anil Tiwari, learned Senior Counsel assisted by Shri Bhanu Bajpai, learned counsel for the petitioner and learned counsel for the respondent-State.
2. By means of the present writ petition, the petitioner has prayed for the following reliefs:
"(i) to issue a writ, order or direction in the nature of Certiorari quashing the order dated 10.5.2006 passed by the respondent no.1 served on the petitioner on 30.6.2006 as contained in Annexure No.1 to the writ petition.
(ii) to issue a writ, order or direction in the nature of Mandamus commanding the respondents not to give effect to the order dated 10.5.2006 passed by the respondent no.1 served on the petitioner on 30.6.2006 as contained in Annexure No.1 to the writ petition.
(iii) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to consider the petitioner for appointment on the post of Deputy Collector in view of his final selection in UPPCS Examination-2002, while applying 3% horizontal reservation for physically handicapped category candidates as provided in Section 3 of the U.P. Public Service Commission (Reservation for Physically Handicapped, Dependents of Freedom Fighter & Ex-Servicemen) Act, 1993 as amended uptodate and while applying the principle of carry forward of previous unfilled vacancies (including fractions thereof) as provided in Section 3(5) of the Act.
(iv) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to apply the provisions of roster prepared by the Government of India for implementing 3% horizontal reservation available for physically handicapped and disabled candidates in absence of State roster, in the selection of UPPCS-2002 and thereby consider the petitioner who is physically handicapped category candidate for the said benefit of the Act.
(v) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to make suitable adjustments in the final allocation of the selected candidates of UPPCS-2002 after re-allocating the petitioner in the PCS Executive cadre i.e. on the post of Deputy Collector and to extend all the service benefits admissible to him on the said post.
(vi) to pass such other order or direction, which this Hon'ble Court may deem it fit and proper under the circusmtances of the case.
(vii) to allow the writ petition with costs in favour of the petitioner."
3. Facts of the case are that the petitioner who belongs to Scheduled Caste category and who is physically handicapped person having afflicted with Post Polio Residual Paralysis is a qualifying Engineering Graduate and his earlier worked in BHEL, UPSEB etc. The petitioner applied in all the yearly examination of UPPCS and reached upto the interview level in all the said attempts. In the selection of 2001, the petitioner was selected as Assistant Consolidation Officer, however he did not join the same. In the year 2002, the U.P. Public Service Commission issued an advertisement for selection of UPPCS Examination declaring that 3% horizontal reservation shall be admissible to physically handicapped category candidates as provided in Section 3 of the U.P. Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters & Ex-Servicemen) Act, 1993 as amended in 1997. The petitioner who had applied in the said selection as physically handicapped category candidate declared successful in the preliminary examination of UPPCS-2002 and thereafter he again filled up the application form for Mains Examination as physically handicapped candidate. In the result of Mains Examination of 2002, the petitioner was again declared successful, whereafter call letter was sent to him for interview asking him to furnish a certificate of Chief Medical Officer to the effect i.e. disability would not cause any impediment in performance of the job of Deputy Collector by him. The petitioner sent his application form for interview alongwith the aforesaid certificate of Chief Medical Officer, which certified that he is fully eligible for appointment on the post of Deputy Collector. Interview for UPPCS-2002 was held in which petitioner was appeared before the interview made on 3.7.2004. Final result of UPPCS-2002 was declared in which the petitioner secured overall 38th rank and as per his information, he is the first selected physically handicapped category candidate among all the categories and even if one post of Deputy Collector would have been available for physically handicapped category candidate as per 3% quota prescribed in the Act, the petitioner would have been selected as Deputy Collector. On 20.5.2005, appointment order was issued in favour of the petitioner appointing him on the post of Assistant Commissioner, Trade-tax and not as Deputy Collector, though it was his first preference and though he stood first rank amongst all physically handicapped category candidate in the said selection. In June, 2005, the petitioner was sent for foundation course training at U.P. Administration & Management Academy, Lucknow, along with the selected officers of PCS (Executive Branch). During the said training, the petitioner gathered personal information that none of the selected person belonging to physical handicapped category, has been given appointment on the post of Deputy Collector and no benefit of 3% horizontal reservation was given in the said selection. The petitioner submitted a detailed representation on 31.8.2005 to respondent nos.1 and 2 claiming his statutory legal right of 3% horizontal reservation which was admissible to physically handicapped category candidate like the petitioner. In September, 2005. The petitioner was thereafter sent for 3 months departmental training at Tax Management Institute, Lucknow whereupon he was given posting as Assistant Commissioner, Trade Tax, Kanpur and he is presently working as such till date. Since no action was taken by the respondents, the petitioner submitted a reminder to the aforesaid representation on 18.11.2005. When the respondents did not consistently take any action on the representation of the petitioner, the petitioner filed a Writ Petition No.76317 of 2005 before this Court with the sole prayer of consideration and disposal of his representation dated 31.8.2005 regarding his claimed appointment on the post of Deputy Collector. The impugned order was passed on 10.5.2006 by the respondent no.1 which was served on the petitioner only on 30.6.2006 whereby the respondent no.1 in a mechanical and routine manner rejected the petitioner's representation merely on the ground that since number of vacancies on the post of Deputy Collector was very small, hence by application of 3% horizontal reservation,only a fraction of vacancy was created, hence no appointment was made.
4. Learned Senior Advocate submitted that the impugned order dated 10.5.2006/ 30.6.2006 passed by respondent no.1 suffers from the vice of non-application of mind, hence violative to Articles 14 & 16 of the Constitution of India. He further submitted that the main ground of non-availablity of sufficient number of vacancies for physically handicapped category candidates shown by respondent no.1 in the impugned order is absolutely not sustainable inasmuch as the respondent no.1 has totally ignored the provisions of Sub-section 5 of Section 3 of the Act which provides for principle of carry forward ad even if a fraction of a vacancy was available for physically handicapped category candidates, the same ought to have been carried forward till the time atleast one vacancy was created, which should have been offered to a disabled or physically handicapped category candidate.
5. Learned Senior Advocate next submitted that Section 3(a)(ii) of the U.P. Services (Reservation for Physically Handicapped, dependents of Freedom Fighter & Ex-Servicemen) Act, 1993 casts a duty on the State Government to identify requisite vacancies for the candidates belonging to the physically handicapped category. Thus, the petitioner cannot be allowed to suffer because of lapse made by the State Government in implementing the statutory requirements under the State Act.
6. Learned Senior Advocate next submitted that the requirement of identification of posts under Section 3 (a)(ii) of the State Act and under Section 32 of the Central Act is the same. The Apex Court while interpreting the said provision of the Central Act has held that right of reservation provided under Section 33 of the said Act is not dependent on identification of posts required under Section 32. He next submitted that the Hon'ble Apex Court has repeatedly held that the reservation of 3% for physically handicapped candidate is to be calculated in respect of total vacancies in the strength of the cadre. Thus, the calculation of vacancies for physically handicapped categories made by the State Government in respect of each requisition is bad in law.
7. Learned Senior Advocate next submitted that admittedly, a total of 174 vacancies have been advertised for the post of Deputy Collector since the year 1993 which is evident from the impugned order, thus a minimum of 3% of the aforesaid 174 vacancies i.e. 5 vacancies ought to have been reserved for the physically handicapped candidates as per the mandate of the State Act.
8. Learned Senior Advocate next submitted that it is an admitted case of the respondents that the benefit of reservation has not been given to the physically handicapped candidates as per the State Act since 1993 as is averred in paragraph 2 of the counter affidavit.
9. Learned Senior Advocate next submitted that the case of the petitioner is identical to and is covered by the pronouncement of the judgment of the Hon'ble Apex Court in the case of Government of India v. Ravi Prakash Gupta reported in (2010) 7 SCC 626 and deserved to be allowed in the light of the same.
10. In support of his above submissions, learned Senior Advocate has relied upon the following judgments:
"(i) Government of India v. Ravi Prakash Gupta reported in (2010) 7 SCC 626
(ii) Union of India v. National Federation of the Blind reported in (2013) 10 SCC 772
(iii) Ashok Kumar Giri v. Union of India reported in (2016) 6 SCC 511.
(iv) Dr. Ravindra Kumar Pandey v. State of U.P. reported in (2006) 6 ALJ 536."
10. On the other hand, learned Standing Counsel submitted that the representation dated 31.8.2005 preferred by the petitioner has been considered and decided by the State Government vide order dated 10.5.2006 by a reasoned and speaking order. He next submitted that U.P. Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighter and Ex-servicemen) Act, 1993 as amended in the year 1997 provides for 3% horizontal reservation for physically handicapped persons in respective category.
11. Learned Standing Counsel next submitted that after applying 3% reservation, the resultant vacancy is less than 1 and cannot be carried forward under the amended Sub-section (5) of Section 3 of the Act, 1993. Moreover, no vacancy has been fixed for them under the roster nor any roster has been issued by the State Government in respect of physically handicapped persons. In the year 2002, a requisition for 15 posts of Deputy Collectors including 8 posts of General category, 4 posts of Scheduled Caste category and 3 posts of OBC category were sent to the U.P. Public Service Commission. However, no reservation could be made for physically handicapped persons/ ex-serviceman/ dependents of freedom fighters as the resultant vacancy would be much less than1 after applying the quota fixed for them. Accordingly, recommendations were received for appointment of 15 Deputy Collectors under the quota fixed for them and appointed letters have been issued to them.
12. Learned Standing Counsel next submitted that in the light of fact that the number of vacancies available for the post of Deputy Collector are very less, therefore no reservation can be granted to the physically handicapped persons under their respective quota. Moreover, no roster point has been fixed for the physically handicapped persons nor any roster has been issued for them by the State Government. Accordingly, in absence of any vacancy, there is no question of carrying forward it to the next years. Thus, the action of the opposite parties is neither arbitrary nor irrational.
13. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as law-reports cited by the learned counsel for the petitioner.
14. To resolve the controversy involved in the present writ petition, operative portions of the judgments relied upon by learned counsel for the petitioner is extracted hereinbelow:
(i) Ravi Praksh Gupta (supra):-
"12. 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 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.
13. 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.
14. 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 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.
22. 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.
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 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.
27. 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).
28. 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 alsy, 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."
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."
(ii) National Federation of the Blind (supra):-
"26) Two aspects of the impugned judgment have been challenged before this Court:-
(a) The manner of computing 3% reservation for the persons with the disabilities as per Section 33 of the Act.
(b) Whether post based reservation must be adhered to or vacancy based reservation.
27) Now let us consider the reasoning of the High Court and the submissions made by the parties.
28) Primarily, we would like to clarify that there is a sea of difference in computing reservation on the basis of total cadre strength and on the basis of total vacancies (both inclusive of identified and unidentified) in the cadre strength. At the outset, a reference to the impugned OM dated 29.12.2005 would, in unequivocal terms, establish that the matter in dispute in the given case is whether the latter method of computation of reservation will uniformly apply to the posts in Group A, B, C and D or will it be applicable only to Group C and D. The question pertaining to computation of reservation on the basis of total cadre strength does not even arise in the given circumstance of the case. However, the High Court, in the impugned judgment, went on to uphold the view that the computation of reservation must be on the basis of total cadre strength which is clearly erroneous on the face of it. Inadvertently, the respondents herein have also adopted the same line of argument in their oral and written submissions. As a result, the point for consideration before this Court is whether the modus of computation of reservation on the basis of total number of vacancies (both inclusive of identified and unidentified) in the cadre strength will uniformly apply to Group A, B, C and D or will it be applicable only to Group C and D.
29) It is the stand of the Union of India that for vivid understanding of the reservation policy laid down under Section 33 of the Act, it is essential to read together Section 32 and 33 of the Act. It was also submitted that a conjoint reading of the above referred sections, mandates only reservation of vacancies in the identified posts and not in all the posts or against the total number of vacancies in the cadre strength. However, it was also admitted that the computation of reservation is being done in respect of Group C and D posts on the basis of total number of vacancies (both inclusive of identified and unidentified) in the cadre strength since 1977. In fact, the abovesaid contention has been raised in Govt. of India through Secretary and Anr. vs. Ravi Prakash Gupta & Anr. (2010) 7 SCC 626 and, therefore, it is no longer res integra.
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 the aforementioned 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 Grade `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 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.
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."
31) In the light of the above pronouncement, it is clear that the scope of identification comes into picture only at the time of appointment of a person in the post identified for disabled persons and is not necessarily relevant at the time of computing 3% reservation under Section 33 of the Act. In succinct, it was held in Ravi Prakash Gupta (supra) that Section 32 of the Act is not a precondition for computation of reservation of 3% under Section 33 of the Act rather Section 32 is the following effect of Section 33.
32) Apart from the reasoning of this Court in Ravi Prakash Gupta (supra), even a reading of Section 33, at the outset, establishes vividly the intention of the legislature viz., reservation of 3% for differently abled persons should have to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts. There is no ambiguity in the language of Section 33 and from the construction of the said statutory provision only one meaning is possible."
(iii) Ashok Kumar Giri (supra):-
"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."
(iv) Dr. Ravindra Kumar Pandey (supra):-
"14. A perusal of Central Act shows that it provided two important things regarding physically handicapped, one that every appropriate government would reserve not less than three percent vacancies for physically handicapped, second it categorised them in three and reserved one percent for each category. Therefore, from the date of coming into force of this Act it became imperative for every State Government to reserve not less than 3% vacancies in public services for physically handicapped. The categorisation was provided to ensure that the reservation was provided, only, to such persons who suffered from severe handicap and deserved to be helped. The allocation of one percent to each category of physically disabled was to ensure that the benefit of reservation is not confined to only one category. For example, if there are three vacancies for physically disabled, all cannot be given to one or the other category. That appears to be the reason for allocating one percent to each category out of the three percent reserved for physically handicapped. If there is only one vacancy then how it should be allocated is a matter of construction to which we shall advert later.
16. From the amendment introduced by U.P. Act No. 6 of 1997 it appears obvious that the State in keeping with the Central enactment provided reservation for physically handicapped incorporating the provision of one percent for each category of physically handicapped. Even though the State Act has not specifically provided that three percent of the vacancies shall be reserved for physically handicapped but the two enactments the Central and State dealing with the same subject and the Central Act having directed every appropriate government to provide not less than three percent for physically handicapped, the State enactment has to be read as providing three percent reservation for physically handicapped. In U.P. Act No. 4 of 1993 the State had provided for reservation of five percent vacancies to physically handicapped, dependants of freedom fighters and ex-servicemen. No separate percentage was reserved for different class nor any category of handicapped was mentioned. But after the Central enactment it became necessary to provide not less than three percent for physically handicapped, therefore, the State Legislature while providing for reservation to physically handicapped fell in line with the Central enactment both in percentage of reservation for physically handicapped and for categorising them. Section 3 was substituted by providing separately for dependants of freedom fighters and ex-servicemen in Sub-section (i) of Section 3(1) and for physically handicapped in Sub-section (ii) of Section 3(1).
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."
15. On perusal of the above-extracted judgments, it is apparently clear that scope of identification comes into picture only at the time of appointment of a person in the post identified for disabled persons and is not necessarily relevant at the time of computing 3 % reservation under Section 33 of the Act. Section 33 of the Act establishes vividly the intention of the legislature viz. reservation of 3% for differently abled persons should have to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts.
It is further apparently clear that the State in keeping with the Central enactment provided reservation for physically handicapped incorporating the provision of one percent for each category of physically handicapped. Even though the State Act has not specifically provided that three per cent of the vacancies shall be reserved for physically handicapped but the two enactments the Central and State dealing with the same subject and the Central Act having directed every appropriate Government to provide not less than three percent for physically handicapped, the State enactment has to be read as proving three percent reservation for physically handicapped. The vacancies for physically disabled were not required to be notified in order to be implemented as it is a statutory prescription. The vacancy for physically handicapped shall be worked out on total number of vacancies for which selection was being held.
16. In the case in hand, the petitioner who belongs to Scheduled Caste category, is physically handicapped having afflicted with Post Polio Residual. In the examination of UPPCS-2002, the petitioner was successful and the petitioner was issued appointment order appointing him on the post of Assistant Commissioner, Trade-tax. During the training period, the petitioner submitted a detailed representation on 31.8.2005 to respondents claiming his statutory legal right of 3 % horizontal reservation which was admissible to physically handicapped candidate. When no action was taken on the representation by the respondents, the petitioner submitted a reminder to the aforesaid representation on 18.11.2005. When no order was passed on the representation, the petitioner filed Writ Petition No.76317 of 2005 before the High Court at Allahabad. Vide the impugned order dated 10.5.2006, representation of the petitioner has been rejected merely on the ground that since number of vacancies on the post of Deputy Collector was very small, hence by application of 3% horizontal reservation, only a fraction of vacancy was created, hence no appointment was made. The reason recorded in the impugned order is illegal and arbitrary in nature in view of the law laid down in the above-extracted judgments.
17. In the cases of Ravi Prakash Gupta (supra), National Federation of the Blind (supra) and Ashok Kumar Giri (supra), the Hon'ble Supreme Court repeatedly held/ observed that the computation of reservation is based on total number of vacancies in the cadre strength and not on the basis of vacancies available in the identified posts. Even though the State Act does not specifically provide for 3 % reservation for physically handicapped, State Act read with the Central Act shall be read as providing three percent reservation for physically handicapped as has been held by this Court in the case of Dr. Ravindra Kumar Pandey (supra). In this view of the matter, the impugned order has been passed without following the law laid down by the Hon'ble Supreme Court as well as this Court.
18. It has been submitted that by the respondents that no vacancy has been fixed for physically handicapped person on the ground that after applying 3% reservation, the resultant vacancy is less than 1 and cannot be forwarded which has been disputed by the learned counsel for the petitioner. The said aspect of the matter i.e. calculation of vacancies for the purpose of reservation to the physically handicapped candidate has been considered and decided in the case of Dr. Ravindra Kumar Pandey (supra) wherein this Court specifically held that the vacancy for physically handicapped shall be worked out on total number of vacancies and not caste/ category wise. In this view of the matter, 3 % of the total 174 vacancies between 1993 to 2002 i.e. 5 vacancies were to be reserved for physically handicapped candidates as per the mandate of the State Act.
19. The 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 4 of 1993 as amended from time to time. The categorization 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.
20. 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 perccent at the stage of direction 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.
21. 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.
22. 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 those 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.
23. 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 alsy, 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."
11. 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, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation.
10. In regard to submission of learned counsel for the respondent that the benefit of reservation could not be given to the petitioner since no roster point was fixed by the State Government for the physically disabled candidates, it is clear from perusal of Section 3 of the State Act that the reservation of posts for physically handicapped candidates under Section 3 of the State Act is not dependent on the exercise of identification to be carried on by the State Government as accepting such an interpretation would run counter to the legislative intent. To accept that reservation is dependent on the exercise of identification would amount to accepting as situation where right of reservation could be kept deferred indefinitely due to bureaucratic inaction.
24. Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right to make a useful contribution to their own lives and to the lives of their families and community.
25. The Union of India, the State Government as well as the Union Territories have a categorical obligation under the Constitution of India and under various international treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. Even though the Act was enacted way back in 1995, the disabled people have failed to get required benefit until today.
26. In the counter affidavit, it is stated that no post was reserved for physically handicapped in the advertisement. The averment is contrary to the law and Government Orders issued from time to time. If the law would have been applied the respondents 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 respondents 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.
27. The Central legislation having determined the percentage and the same having been accepted by the State it is not open to statutory body to render the provisions nugatory by such interpretation. The reasonable interpretation would be that in case there is only one vacancy available to be filled from physically handicapped category, it should be offered first to candidate suffering from blindness or low vision and if no such candidate is available then it should go to the next category of disability, namely, to the category of hearing impairment and again if there is no such candidate available, then it should be offered to the candidate suffering from locomotor disability or cerebral palsy. It would be within the permissible limit of 1 % reservation for each category of disability. This can be the only reasonable interpretation which could be given to the reservation provided to the three different types of disabilities and for extending the benefit of reservation to handicapped candidate.
28. For the reasons mentioned, hereinbefore, this Court is of the opinion that since horizontal reservation had to be provided as a matter of law, the respondents acted against the law in not considering the petitioner entitled for it as no vacancy was reserved for physically handicapped. This Court is also of the opinion that the vacancy for physically handicapped was three per cent and it had to be worked out on total number of vacancies and not caste/ category wise. The respondents, therefore, in not considering the petitioner who is physically handicapped, as a candidate entitled for such reservation, acted against law of reservation as applicable in the State.
29. In view of the above, order dated 10.5.2006 passed by the respondent no.1 served on the petitioner on 30.6.2006 as contained in Annexure No.1 is quashed. A writ of Mandamus is issued to the respondents to reconsider and decide the representation dated 31.8.2005 made by the petitioner in the light of the observations made above within a period of six weeks from the date of production of a certified copy of this order.
30. In the result, the writ petition succeeds and is allowed.
31. The parties shall bear their own costs.
Order Date :- 27/01/2023 GK Sinha [Irshad Ali, J.]