Central Administrative Tribunal - Delhi
Pankaj Kumar Srivastava vs Union Public Service Commission ... on 30 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application Nos.3493 of 2011, 3209 of 2011 3494 of 2011 and 3988 of 2011 Order reserved on : 24th May, 2012 Pronounced on : 30th May, 2012 HONBLE SHRI JUSTICE S. C. SHARMA, ACTING CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) O.A. No. 3493/2011 Pankaj Kumar Srivastava S/o Shri Radheshayam Srivastav R/o Solanipuram 174-A, Rurki, Distt. Haridwar, Uttrakhand. Applicant VERSUS 1. Union Public Service commission through its Chairman, Dholpur House, Shahjahan Road, New Delhi-110003. 2. Union of India through Secretary M/O Personnel, P.G. & Pensions North Block, New Delhi. Respondents O.A. No. 3209/2011 Abhishek Kumar S/o Shri Nand Lal Sinha, R/o B-314, D.A. Flats, Timar Pur, Delhi-52 Applicant VERSUS 1. Union Public Service commission through its Chairman, Dholpur House, Shahjahan Road, New Delhi-110003. 2. Union of India through Secretary M/O Personnel, P.G. & Pensions North Block, New Delhi Respondents O.A. No. 3494/2011 Shivam Kumar S/o Shri M.P. Verma R/o D-2/148 (1st floor), Sector-11, Rohini Delhi-85. Applicant VERSUS 1. Union Public Service commission through its Chairman, Dholpur House, Shahjahan Road, New Delhi-110003. 2. Union of India through Secretary M/O Personnel, P.G. & Pensions North Block, New Delhi. Respondents O.A. No. 3988/2011 Rahul Mittal S/o Shri M.P. Mittal, R/o 74, Preeti Nagar, Opp. Jindal Gyan Kendra Hissar, Haryana. Applicant VERSUS 1. Union Public Service commission through its Chairman, Dholpur House, Shahjahan Road, New Delhi-110003. 2. Union of India through Secretary M/O Personnel, P.G. & Pensions North Block, New Delhi. Respondents By Shri S. K. Rungta, Sr. Advocate with Shri Prashant Singh, Advocate for the applicants. Shri Naresh Kaushik with Ms. Joymoti Mize, Advocate for respondent No.1, UPSC; Shri R. N. Singh with Ms. Sangita Rai, Advocate, for the respondent No.2, DOP&T. O R D E R Justice S. C. Sharma, Acting Chairman:
By this common order, we propose to dispose of four Original Applications, as identical questions of law and facts are involved in all the OAs. The facts have, however, have been extracted from OA No.3493 of 2011 in the matter of Pankaj Kumar Srivastava v UPSC & others. Following reliefs have been claimed in the OA:
(a) Allow this application.
(b) Consequently, set aside the impugned communication dated 9.9.2011 issued by respondent No.1 and direct the respondents to appoint the applicant to an Indian Administrative Service post or any other civil services post based on his rank in the merit list prepared against reserved vacancies for persons suffering from blindness or low vision in respect of CSE 2008 by taking into account both the vacancies filled up by CSE 2008 and backlog of vacancies against reservation quota for visually impaired persons to be worked out in terms of OM bearing No.36035/3/2004-Estt.(Res.) dated 29.12.2005 and O.M. No.36035/8/2003-Estt.(Res) dated 26.4.2006 and judgment of the Apex Court in SLP (C) No.14889/2009 and directions issued by Your Lordship in OA No.2402/2009 in the implementation of Section 33 of The Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 with all consequential benefits.
(c) Grant any other relief which Your Lordship deem fit and proper in the circumstances of the case.
(d) Award the costs.
2. Pleadings of the parties may be summarized as follows:
It has been alleged by the applicants in the OAs that they are entitled to the benefits as provided under The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter to be referred as the Act of 1995), and particularly Section 33 of the Act. It has also been alleged that the Government of India introduced a scheme of reservation in the jobs for persons with disabilities in the year 1977, providing 3% posts to be reserved for persons with disabilities in Groups C and D posts. Though the reservation was introduced only in respect of Groups C and D jobs, there was a continuous demand to extend the said reservation to Groups A and B posts also, and accordingly the matter was taken up by the Government of India in order to ensure employment opportunities to disabled persons in Groups A and B posts also by identifying the jobs which can be performed by different categories of disabled persons, and notified the scheme. As per the list of identified jobs in Groups A and B, many posts in civil services were also identified for different categories of disabilities including persons suffering from blindness/low vision. The National Federation of the Blind, the apex organization of the blind, also filed a petition under Article 132 of the Constitution of India before the Honble Supreme Court praying for directions to the Government of India to extend the reservation in favour of persons with disabilities in Groups A and B, and the judgment was pronounced on 23.03.1993 and a direction was given to the Government of India to consider the feasibility of extending reservation to Groups A and B posts also. Subsequently the Act of 1995 was also enacted in this connection. In view of section 33 of the Act aforesaid, 3% posts are reserved for persons with disabilities, out of which 1% each is to be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor disability. At the time of enforcement of the Act, the list of identified jobs in Groups A and B was already available with the Government, and DOP&T also issued instructions vide OM dated 18.02.1997, clearly extending the reservation in jobs to Groups A and B posts also in favour of the persons with disabilities. Corrigendum was also issued on 04.07.1997 by the DOP&T. The Government of India undertook identification of the posts in terms of section 32 of the Act in the year 2001 and identified various posts for different categories of disabilities, but the Government did not implement reservation in terms of the statutory provision as well as the executive instructions in respect of civil services, and consequently did not extent the benefit of reservation to persons with disabilities including persons suffering from blindness or low vision up to 2001. It was partly implemented in respect of persons suffering from hearing impairment and persons suffering from locomotor disability. In WP(C) No.6706/2002 in Ravi Kumar Arora v Union of India & another, the matter was decided regarding reservation to the blind persons. The respondents were directed to appoint the petitioner who was a person with visual impairment to civil services. The respondent No.1, UPSC, conducted CSE 2008 for filling up 881 vacancies in Civil Services. The applicant in the OA also took CSE 2008 and was successful and was called for personality test, in which he appeared. The result was also published by the respondent No.1 recommending 791 candidates for appointment, including 20 physically handicapped candidates as against the reported 881 vacancies. The applicant was not recommended for appointment. It is also material to state that as against 881 vacancies reported to the respondent No.1, persons with disabilities including persons suffering from blindness or low vision were entitled to have reservation of 27 posts against which only 20 physically handicapped persons have been recommended by the respondent No.1. An RTI application was also filed by the applicant, and it has been admitted by the respondents in reply to the RTI query that four blind candidates have been recommended for appointment against CSE 2998. It has also been disclosed that the four blind candidates recommended for appointment have not been recommended for appointment against the posts which ought to have been reserved for blind to the extent of 1% in terms of section 33 of the Act. They have been selected and recommended for appointment on the basis of their ranking in general merit. The following persons have been selected:
Name Roll No. Rank Manjule Balaji Digambar 006566 56 Ajit Kumar 219116 208 Ashish Singh Thakur 035020 435 Sreenivasulu Budigi 107255 583
From perusal of this, it is evident that the disabled candidates who fall in general merit cannot be counted against the reserved vacancies for disabled. If it may be presumed that blind candidates recommended for appointment are to be treated having been recommended for appointment against 8 posts which ought to have been reserved for the blind, there is still a short-fall of 4 posts and accordingly the backlog of 4 posts against the reservation for blind in CSE 2008 alone has to be filled. The respondents have not even provided the reservation to different categories of persons with disabilities even against the 881 vacancies. That the respondents provided for 1% reservation for persons suffering from blindness or low vision, reserving 9 vacancies even against 881 vacancies and 8 vacancies even against 791 candidates recommended for appointment. The applicant ought to have been recommended for appointment against one of the vacancies reserved for persons suffering from blindness or low vision. The backlog of vacancies which ought to have been taken into account for appointment of persons suffering from blindness or low vision, like the applicant, in implementation of the mandate of section 33 of the Act. It has also been provided in section 33 that the respondents must maintain a roster register reserving point nos. 1, 34 and 67 for persons with disabilities in a cycle of 100 vacancies, and an OM was also issued on 26.04.2006. The Honble High Court of Delhi in WP(C) No.5429/2008, after noticing the admission of respondent No.2 about the status of reservation beginning from 1996, directed the appointment of the petitioner therein who was visually impaired person to IAS, as there was a backlog of 7 vacancies against the reservation quota for visually impaired persons. That the applicant was entitled to be recommended for appointment against the backlog vacancies to any of the civil services, including IAS. The applicant challenged the act of the respondents of not recommending his name for appointment to civil services by filing OA No.2402/2009. Several other OAs were decided along with the OA of the applicant and the OAs were allowed. It was informed by the respondent No.1 vide communication dated 09.09.2011 that the name of the applicant did not figure in the merit list of civil services (main) examination 2008 within the number of available vacancies for PH-2 (visual impaired) category, but the respondent has neither given the number of vacancies reported by different civil services cadre controlling authorities nor have given any details of the number of reserved vacancies worked out in respect of each category of disability. In implementation of the directions of the Honble Supreme Court in SLP(C) No.14889/2009, following blind candidates have been recommended for appointment to civil services:
1. Ravi Prakash Gupta (CSE 2006)
2. Rajesh Kumar (CSE 2006)
3. Dinesh Kumar (CSE 2005)
4. N. Sharvan (CSE 2008)
5. Poornima Jain (CSE 2008)
6. Subodh Kumar (CSE 2009)
7. Pawan Kumar (CSE 2009) In CSE 2007 only one blind was appointed in civil services (IAS), but he too was appointed on the basis of his general merit being rank No.142, and there was a further backlog of one vacancy in the IAS. That the respondents have wrongly rejected the case of the applicant on the ground of low merit for persons suffering from blindness and low vision. Persons suffering from blindness and low vision have so far been given much less vacancies as compared to other categories of disability against 1% quota, which ought to have been given to them. That there was no justification for rejecting the candidature of the applicant for appointment in the civil services, including IAS, and as the respondents have illegally rejected the applicants candidature, hence the OA.
3. The respondents have contested the case and filed separate counter replies. It has been alleged by the respondent No.1 in its counter reply that the applicant was a PH-2 (visually impaired) candidate for for CSE (Main) examination 2008. He was declared qualified in the written examination and was called for the P.T., but he could not finally qualify in the CSE, 2008. OA No.2402/2009 was filed by the applicant and in that OA he sought backlog vacancies to be calculated in various PH categories and against such vacancies he may be recommended in CSE 2008 and be appointed in IAS or any other suitable service. The Tribunal in the OA of the applicant as well as in number of other OAs, directed the UPSC to carry out the exercise in order to fill up the backlog vacancies in different services and the vacancies of the year 2008, to consider the allocation of the applicants to suitable services as per their choices, and the respondent Commission undertook this exercise to workout the backlog vacancies in various PH categories, by collecting the backlog vacancies in various PH categories from all the cadre controlling authorities of services included in the CSE in order to comply with and implement the order of the Tribunal. Recommendations were also made in order to fill up the backlog vacancies to DOP&T for the PH-2 category candidates of CSE 2006, who had secured higher marks than Shri Ravi Prakash Gupta, in view of the judgments of the Honble Supreme Court and the High Court. Recommendations were also made to fill up the vacancies for various PH categories in CSE 2008 and CSE 2009 to accommodate the applicants in OA No.1538/2009 and connected OAs. Vacancies were reported by various cadre controlling authorities for all the three PH categories, i.e., PH-1 (locomotor disability and cerebral palsy), PH-2 (v9sually impaired) and PH-3 (hearing impaired). However, the name of the applicant did not figure in the merit list of CSE (Main) 2008 within the number of available vacancies for PH-2 (visually impaired) category, and, therefore, the applicants name was not recommended. That the applicants performance was not adequate in CSE 2008. It has further been alleged that the claim of the applicant that the 4 visually impaired candidates were recommended against general merit is entirely false, and that it is not mentioned anywhere in the recommendations/result notified by the respondent Commission and the RTI replies made by CPIO that such candidates have been recommended against general merit. Contrary to that, it has been mentioned that Number of PH-2 category candidates finally qualified = 04. Factually, since visually impaired candidates are allowed extra time of 20 minutes in CS (P) examination and 30 minutes in CS (M) examination, they cannot be considered against general merit. Moreover, a physically handicapped candidate may or may not belong to any of the reserved categories and the candidate can only be considered against a vacancy identified for particular PH category to which he/she belongs. Reservation for SC/ST/OBC may be called vertical reservation and the reservation for physically handicapped persons as horizontal reservation, cut across vertical reservation, and the persons selected against the physically handicapped quota have to be placed in the appropriate category; if he belongs to SC category, he will be placed in that quota and will utilize an SC roster point, and similarly if he belongs to general category, he will be placed in that category and will utilize a general category roster point. This is also the case in the case of OBC and ST categories. That the respondent Commissions role is limited. It is wrong to allege that the applicant was wrongly rejected for selection. Other persons who have been selected, secured higher marks than the applicant. It has also been alleged that the candidates belonging to PH-2 category cannot seek equal treatment vis-`-vis that of PH-3 candidates, for whom the marks of final recommendation may be lower based on the performance of such category candidates only. Whatever has been alleged in the OA is stated to be wrong.
4. Respondent No.2 has also filed separate counter reply, but it is very short. It has been alleged in the counter reply that the OA has been filed regarding recommendations of candidates by UPSC, respondent No.1, and that the relief has also been claimed by the applicant concerning the recommendation of candidates by UPSC. It is averred that the respondent No.2 is concerned with allocation of service to the candidates recommended by UPSC, and further that the applicant has not challenged any order or action of the respondent No.2. That the respondent No.2 is not a necessary party in the OA, and that no cause of action has accrued in favour of the applicant against the respondent No.2. However, it has also been averred that if required, a detailed counter reply may also be filed, but no request has been made afterwards to file a detailed counter reply. That the OA is liable to be dismissed insofar as the respondent No.2 is concerned.
5. In response to the counter reply of the respondents, rejoinder has been filed on behalf of the applicant, and whatever has been alleged in the counter reply has been disputed, and the facts which have been alleged in the OA have been reiterated. It has also been alleged that the respondents have not implemented the orders of the Tribunal passed earlier in letter and spirit, and that the respondents have not correctly computed the backlog of vacancies for different categories of disabled including visually impaired category. The backlog vacancies have to be counted since 1996 till date against each of the civil services giving 1% to each of the three categories of disabilities out of those appointments made without counting those persons with disabilities who were appointed on their general merit, and that this exercise may be undertaken by the respondents sincerely and honestly. That the respondents have also violated the orders of the Honble Supreme Court in SLP No.14889/2009 as well the judgment of this Tribunal in OA No.2402/2009 and connected OAs. The contention of the respondents that the applicants name did not figure in the merit list of CSE (M) 2008 within the number of available vacancies for PH-2 category, has been specifically denied. That the cadre controlling authorities for different services did not report vacancies reserved for persons with disabilities including persons with visual impairment between 1996 and 2005, and that the respondent No.1 only recommended those candidates with disabilities against each of the three categories against the reported reserved vacancies from 2006 who in fact secured higher ranks in the general merit and were entitled to be appointed on their general merit and not no the basis of benefit of reservation, and further that the respondent No.1 has been continuously violating the mandate of the statute as well as instructions of DOP&T.
6. Later on, one additional affidavit has also been filed on behalf of the respondent No1, UPSC, and certain legal facts have been alleged, which shall be considered at the relevant place.
7. We have heard Shri S. K. Rungta, Sr. Advocate along with Shri Prsahant Singh, for the applicant, and Shri R. N. Singh, advocate for DOP&T, respondent No.2, and Shri Naresh Kaushik, advocate for the respondent No.1, UPSC. Considering the facts of the case, the controversy involved in the OA is regarding compliance of the office memorandum dated 29.12.2005 issued by DOP&T. It has been provided in clause 7 of this memorandum, Persons with disabilities selected on their own merit without relaxed standards along with other candidates, will not be adjusted against the reserved share of vacancies. The reserved vacancies will be filled up separately from amongst the eligible candidates with disabilities which will thus comprise physically handicapped candidates who are lower in merit than the last candidate in merit list but otherwise found suitable, for appointment, if necessary, by relaxed standards. It will apply in case of direct recruitment as well as promotion, wherever reservation for persons with disabilities is admissible. It has been argued by Shri S. K. Rungta, Sr. Advocate representing the applicant, that if the visually impaired persons were selected on their own merit, then they will not be adjusted against reserved quota earmarked for visually impaired persons, and in that situation, the visually impaired persons shall be adjusted against general category persons, whereas it has been stated by the respondent No.1 that the claim of the applicant that four visually impaired candidates were recommended against general merit is entirely false, and that it has not been mentioned anywhere in the recommendations/result notified by the respondent No.1 and the RTI replies that these candidates have been recommended against general merit, and it has been specifically mentioned that Number of PH-2 category candidates finally qualified = 04. It is further alleged that factually, since visually impaired candidates are allowed extra time of 20 minutes in CS (P) examination and 30 minutes in CS(M) examination, they cannot be considered against general merit, and that the PH reservation should not be mixed up with community reservation because of the inherent difference in the operation of their rosters, and it has also been provided that reservation for SC/ST/OBCs may be called vertical reservation and the reservation for physically handicapped persons as horizontal reservation; horizontal reservations cut across vertical reservation (in what is called inter-locking reservation) and the persons selected against the physically handicapped quota have to be placed in the appropriate category. Besides arguing regarding the controversy in issue, it has also been argued by the learned Sr. Advocate for the applicant that in the year 1995, the Government of India passed the Act known as The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Particular reliance has been placed on section 33 of the Act. The history has also been traced by the applicant in the OA, and it has been alleged that the Government of India introduced a scheme of reservation in jobs for persons with disabilities in the year 1977, reserving 3% posts for persons with disabilities in Groups C and D posts in Government of India and public sector undertakings, but as there was a consistent demand for extending this reservation to physically handicapped persons to Groups A and B as well, hence this exercise was also undertaken, and the apex body of the blind persons also filed a petition under Article 132 of the Constitution before the Honble Supreme Court praying for directions to the Government of India to extend the reservation in favour of persons with disabilities in Groups A and B also, and in this connection, the Act aforesaid was enacted. Section 33 of the Act is most relevant in this connection, which reads, thus:
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 blindness or low vision;
hearing impairment;
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. Hence, from the perusal of section 33, it is evident that 3% reservation has been made for the physically handicapped persons, and 1% each shall be reserved for the categories of blindness or low vision, hearing impairment and locomotor disability or cerebral palsy. Under these circumstances, this is the settled law of the land that 3% posts have been reserved for physically handicapped category of the candidates, and 1% each shall be given to the categories of blindness or low vision, hearing impairment and locomotor disability or cerebral palsy. Reservation regarding visually impaired is only 1%, and we are concerned with this 1%. The learned Sr. Advocate for the applicant also cited the land-mark judgment of the Honble Supreme Court in Indra Sawhney & others v Union of India & others [AIR 1993 SC 477]. On the strength of the judgment of the Honble Supreme Court, the learned counsel for the applicant argued that reservation to the physically handicapped category of candidates is available under Article 16(1) of the Constitution and not under Article 16(4), and in this connection reliance has been placed on the following paragraph of the judgment:
It needs no emphasis to say that the principle aim of Articles 14 and 16 is equality and equality of opportunity and that clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision though not an exception to clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but restatements of the principle of equality enshrined in Article 14. The provision under Article 16 (4) conceived in the interest of certain sections of society should be balanced against the guarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being confined to a minority of seats (see his speech in Constituent Assembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is, thus, clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires us to depart from that concept. Further reliance has also been placed by the learned advocate for the applicant on the following portion of para 95 of the judgment:
The reservations in favour of Scheduled Castes, Schedules Tribes and other backward classes (under Article 16 (4) may be called vertical reservations whereas in favour of physically handicapped (under clause (1) of Article 16), can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations what is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains-and should remain-the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure. However, the Honble Supreme Court in the case of Indra Sawhney (supra) has restricted the reservation only up to 50% maximum. Learned Sr. Advocate for the applicant argued that the judgment of the Honble Supreme Court was pronounced prior to the enactment of the Act of 1995. Under these circumstances it is an established fact that there is a provision for providing reservation of 1% to the visually impaired persons.
8. We are concerned with the controversy involved in the present case, and regarding the controversy involved in the present case, it has been argued by the learned advocate for the respondent UPSC Shri Naresh Kaushik that if a candidate belonging to the reserved category has availed the relaxed standard, then he would not be entitled for selection on his own merit. In this connection Shri Kaushik cited the judgment of the Honble Supreme Court in Union of India v Ramesh Ram & others [AIR 2010 SC 2691]. The Honble Apex Court held in view of rule 16(1) of the Civil Services Examination Rules, as follows:
For the purpose of recommending Reserved Category candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes against reserved vacancies, the Commission may relax the general qualifying standard with reference to number of reserved vacancies to be filled up in each of these categories on the basis of the Main Examination:
Provided that the candidates belonging to the Scheduled Castes, Scheduled Tribes and the Other Backward Classes who have not availed themselves of any of the concessions or relaxations in the eligibility or the selection criteria, at any stage of the examination and who after taking into account the general qualifying standards are found fit for recommendation by the Commission shall not be recommended against the vacancies reserved for Scheduled Castes, Scheduled Tribes and the Other Backward Classes. Under these circumstances, the learned counsel for the respondent No.1 argued that if a candidate of the reserved category has availed the relaxed standard, then he would not be entitled to be selected on his own merit, but he will be selected against the reserved percentage of the quota. In this connection, the learned counsel for the respondent No.1 also cited the judgment of the Full Bench of the Tribunal (Principal Bench) delivered in OA No.1839/2009 with connected OAs on 03.01.2011 in the matter of Ram Narain Varma & others v Union of India & others. Relevant portion of the judgment reads as follows:
13. Since the judgment of Hyderabad Bench has already been overruled and it has already been held that the SC/ST candidates who qualify the departmental examination with relaxed standards would not be eligible for promotion against unreserved vacancies, nothing more remains to be adjudicated upon. [ Under these circumstances, the learned counsel for UPSC argued that in view of the judgment of the Honble Supreme Court as well as that of the Full Bench of this Tribunal, it is an established fact that if a candidate of the reserved category has availed any relaxed standard, then he is not to be selected on his own merits.
9. It is also relevant to be considered in view of the instructions issued by UPSC that as to what would be the relaxed standards. In the additional affidavit filed on 16.04.2012 by respondent No.1, UPSC, it has been alleged, thus:
4. Every candidate appearing at the examination who is otherwise eligible, shall be permitted four attempts at the examination:
Provided that this restriction on the number of attempts will not apply in the cases Scheduled, Castes and Scheduled Tribes candidates who are otherwise eligible:
Provided further that the number of attempts permissible to candidates belonging to Other Backward Classes, who are other wise eligible, shall be seven. The relations will be available to the candidates who are eligible to avail of reservation applicable to such candidates:
Provided further that a physically handicapped will get as many attempts as are available to other non-physically handicapped candidates of this or her community, subject to the conditions that a physically handicapped candidate relations will be available to the physically handicapped candidates who are eligible to avail of reservation applicable to such candidates.
Note:-
(I) An attempt at a Preliminary Examination shall be deemed to be an attempt at the Examination.
(II) If a candidate actually appears in any one paper in the Preliminary Examination, he/she shall be deemed to have made an attempt at the Examination.
Notwithstanding the disqualification/ cancellation of candidature, the fact of appearance of the candidate at the examination will count as an attempt.
6. (a) a candidate must have attained the age f 21 years and must not have attained the age of 30 years on the last 1st August,2009 i.e. he must have been born not earlier that 2nd August, 1979 and not later than 1st August, 1988
(b) The upper age-limit prescribed above will be relaxable;
(i) up to a maximum of fiver years if a candidate belonging to a Scheduled Caste or a Scheduled Tribe;
(ii) up a maximum of three years in the case of candidates belonging to Other backward Classes who are eligible to avail of reservation applicable to such candidates;
(iii) up to a maximum of five years if a candidate had ordinarily been domiciled in the State of Jammu and Kashmir during the period from the 1st January, 1980 to the 31st day of December, 1989;
up to a maximum of three years in the case of Defence Services Personnel, disabled in operations during hostilities with any foreign country or in a disturbed area and released as a consequence thereof;
up to a maximum of five years in the case of ex-servicemen including Commissioned officer and ECOs/SSCOs who have rendered at least five years Military Service as on 1st August, 2009 and have been released:
on completion of assignment ( including those whose assignment is due to be completed within one year from 1st August, 2009) otherwise than by way of dismissal or discharge on account of misconduct or inefficiency, or on account of physical disability attributable to Military Service, or on invalidment;
up to a maximum of five years in the case of ECOs/ SSCOs who have completed an initial period of assignment of five years- of Military Service as on 1st August, 2009 and whose assignment has been extended beyond five years and in whose case the Ministry of Defence issues a certificate that they can apply for civil employment and that they will be releases on three months notice on selection from the date of receipt of offer of appointment;
upto a maximum of 10 years in the case of blind, deaf-mute and Orthopaedically handicapped persons.
Note IV:- Notwithstanding the provision of age relaxation under Rule 6(b)(vii) above, a physically disabled candidate will be considered to be eligible for appointment only if he/she (after such. Physical examination as the Government or appointment authority, as the case may be, may prescribe) is found to satisfy the requirements of physical and medical standards for the concerned Services/Posts to be allocated to the physically disabled candidates by the Government. As to what are the relaxed standards or concessions available to the candidates of reserved categories have been provided in rules 4 and 6 of the Civil Services Examination Rules. An unreserved candidate may appear in CSE four times, but for SC category, no maximum number of attempts has been provided, and for OBC candidates the number of attempts shall be seven. As regards a physically handicapped category candidate, he or she will get as many attempts as are available to other non-physically handicapped candidates of his or her community, subject to the condition that a physically handicapped candidate belonging to General category shall be eligible for seven attempts. Moreover, there is also relaxation in the upper age limit also. For SC/ST candidates, it is five years, and three years for OBC, and up to a maximum of ten years in the case of blind, deaf-mute and orthopaedically handicapped persons. It has been argued by the learned advocate that as per instructions of UPSC, the candidates must write the papers in their own hand-writing and in no circumstance they will be allowed help of a scribe. However, a blind candidate will be allowed to write the examination with the help of a scribe. The learned advocate argued in this connection that there is provision in rule 22 of the CSE Rules in Appendix I Section II. Relevant portion of the said provision reads as follows:
Appendix I Section II Each paper will be of three hours duration. Blind candidates will, however, be allowed an extra time of thirty minutes at each paper.
General instructions (Preliminary as well as Main Examination) Candidates must write the papers in their own hand, In no circumstances will they be allowed the help of a scribe to write the answers for them. However, blind candidates will be allowed to write the examination with the help of a scribe.
(ii) An extra time of twenty minutes per hour shall be permitted for the candidates with locomotor disability and cerebral palsy where dominant 9Writing) extremity is affected to the extent of slowing the performance of function (minimum of 40% impairment) in the Civil Services (Main) Examination only. However, no scribe shall be permitted to such candidates. Hence, the learned advocate for the respondent No.1 argued that as per rules, an extra time of 30 minutes is allowed to a visually impaired person, and a scribe is also provided, and, therefore, the visually impaired person availing the relaxed standard in the examination will not be entitled to be selected on his own merit; rather he will be selected against the reserved category.
10. Learned senior advocate for the applicant vehemently disputed the argument of the learned counsel for respondent No.1, and it has been argued that this is an audacity on the part of the respondent to deny the benefit of section 33 of the Act of 1995. That no provision has been made in the rules that allowing extra time of half an hour and providing a scribe to a visually impaired person is a relaxed standard. What would be relaxed standard has been described in rule 4 reproduced hereinabove, and there is no provision that allowing extra time or providing a scribe to a visually impaired person would be relaxed standard, hence it cannot be inferred that if extra time of half an hour is allowed in the examination to a visually impaired person or a scribe is provided to him, then it would be a relaxed standard, and if this is the fact, then clause 7 of office memorandum dated 29.12.2005 is of no help to the visually impaired persons. No separate rules have been framed regarding blind persons. It is denial of equal opportunity to the visually impaired persons. On the one hand, in section 33 of the Act of 1995 provision has been made for giving reservation to the extent of 1% to the blind/visually impaired persons, and a provision has been made for allowing 30 minutes extra time in the examination and providing a scribe for the help of the visually impaired persons, it has been taken away on the other hand, which would be denial of equal opportunity to visually impaired persons, which has been guaranteed to blind persons. If extra time and scribe is not provided to the visually impaired persons, then it is impossible for them to attempt the question paper in the examination. In order to facilitate the visually impaired persons to participate in the examination, a provision has been made to provide a scribe for their help and provide extra time of 30 minutes to attempt the paper. It is a facility in order to bring blind persons at par with other candidates, and if certain facility has been provided to a candidate during examination, then it cannot be termed as a relaxed standard. What would be the relaxed standard has been specifically defined in the above quoted provision, and it is only regarding number of attempts in the examination and relaxation in age, and if a candidate of reserved category has availed this relaxation, then it may be possible, as has been held by the Honble Supreme Court, that he will not be entitled for selection on his own merits, and he will be certainly selected against the reserved quota. It is a known fact that a blind person cannot attempt the examination without providing him the facilities to attempt the examination by braille script or a computer be provided to the blind person with braille script with the requisite software, and if these facilities are not provided to a visually impaired person, then without providing a scribe to him, he cannot participate in the examination.
11. It has only been argued by Shri Naresh Kaushik, learned counsel for the respondent No.1 that providing a scribe and allowing extra time is a relaxed standard, and if a visually impaired person has availed the said relaxed standard, then he will not be entitled to be selected on his own merit. We specifically enquired from Shri Kaushik that if a visually impaired person is not provided the facility of braille script or a computer with braille script with the requisite software, then how it will be possible for him to attempt the examination, and that it can only be possible with the help of a scribe and extra time is also to be allowed to such person, as the scribe will go through the question paper and thereafter will explain it to the visually impaired person, who will dictate thereafter which will be translated by the scribe, and that is why there is justification for allowing extra time. We enquired from the learned senior advocate for the applicant that whether there is any judgment of the Honble Supreme Court or the Honble High Court on this point as to whether it would be a relaxed standard, concession or relaxation, or it is a facility provided to a visually impaired person to bring him at par with the other candidates who are not suffering from such impairment. No judgment has been cited before us, hence we will have to make our own interpretation in order to ascertain whether it would be a facility provided to visually impaired persons to bring them at par with the other candidates, or it is a relaxed standard, concession or relaxation. We have also consulted Law Lexicon (1989 Edn.), Supreme Court on Words & Phrases (2012 Edn.), The New Lexicon Websters Dictionary of the English Language, and The Concise Oxford Dictionary. In the book Supreme Court on Words & Phrases (2012 Edn.), the words facility and relaxation have not been defined. In Law Lexicon (1989 Edn.) as well, these words have not been defined. However in The Concise Oxford Dictionary, the term facility has been defined to mean, 1 ease; absence of difficulty. 2 fluency, dexterity, aptitude (facility of expression). 3 an opportunity, the equipment, or the resources for doing something. The word relaxation in the said dictionary has been defined as, 1 the act of relaxing or state of being relaxed. 2 recreation or rest, esp. after a period of work. 3 a partial remission or relaxing of a penalty, duty, etc. 4 a lessening of severity, precision etc.. In The New Lexicon Websters Dictionary of the English Language, the expression facility has been defined as, an aptitude for doing some specified thing easily / the quality of being easy to do / dexterity or apparent lack of effort in performing something relatively difficult / things that make some specified activity, task etc. easier, facilities for study. Under these circumstances, the facility is to make a thing easy to attempt, and by no stretch of reasoning, it can be meant as a relaxed standard. Facility is something different from relaxation or relaxed standard. Relaxation has been defined in The New Lexicon Websters Dictionary of the English Language to mean, a relaxing or being relaxed / a partial remission of a duty, punishment etc. / a recreation. Under these circumstances, there is a vast difference in facility and relaxation. Relaxation may be if there are certain concessions for certain category of persons in the rules as regards age relaxation etc., whereas facility means in order to attempt a question paper to provide a person certain facility, so that it may be easy for him, and in the case of a visually impaired person providing a scribe is a facility or necessity, and without the help of a scribe it will be impossible for a blind person to attempt the examination. After all, by enactment of the Act of 1995, an attempt has been made to provide equal opportunities, protection of rights and full participation to persons suffering from disabilities. The aim and objective of the Act as defined in the Act is, to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. It is mentioned, Whereas the Meeting to Launch the Asian and Pacific Decade of Disabled Persons 1993-2000 convened by the Economic and Social Commission for Asia and Pacific held at Beijing on 1st to 5th December, 1992, adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region;. Hence, in order to provide full participation and equality to the disabled persons, the law has been framed and if a visually impaired person is not provided the facility of braille script or a computer with braille script with requisite software, there is no sense in providing reservation to him. If the braille script is not provided to the blind person, then a scribe is provided to help him to attempt the examination. We specifically enquired from Shri Naresh Kaushik, learned counsel for UPSC that if a blind person does not avail the facility of scribe and thirty minutes extra time to attempt the examination, whether it would be possible for such a person to attempt the examination at all, but we could not be satisfied by Shri Kaushik as to how such person will be able to attempt the examination if he is not provided this facility. Rather it will be impossible for him to attempt the examination. The framers of law have not provided this facility to SC/ST candidates, if not suffering from disabilities. It is only to be provided to visually impaired persons.
12. Moreover, the Honble Supreme Court in the case of Indra Sawhney (supra) has held, where the State finds it necessary for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under clause (4) itself. It is in connection with the candidates belonging to backward classes not suffering from physical disabilities, like blindness, but the case of blind persons is entirely different.
13. Under the above circumstances, we can arrive at the conclusion that providing scribe and extra time to attempt the examination to visually impaired persons is not a relaxed standard. The relaxed standard is limited only to number of attempts in the CSE or the relaxation in age, but it has nothing to do with the facility of providing scribe to a blind person or providing extra time to him to attempt the paper. In our considered opinion, by providing this facility the respondents enable the visually impaired persons to attempt the examination, and we agree with the argument of the learned senior advocate for the applicant that it is an enabling provision so that the visually impaired persons can attempt the examination; otherwise it will be impossible for such persons, and it would be denial of opportunity and equality. If a visually impaired person appears in CSE or any other examination without availing the relaxed standards, and only avails the facility of extra time and scribe, then he cannot be deprived of being selected on his own merit. By no stretch of reasoning it can be termed as a relaxed standard or relaxation or concession, but it is a facility, and the visually impaired persons are also entitled to be adjusted if selected on their own merit, in view of clause 7 of the office memorandum dated 29.12.2005.
14. It is an established fact although argued by the learned counsel for the applicant, that reservation is available to the visually impaired persons in Groups A, B, C and D posts. However, in this connection, the learned counsel cited the land-mark judgment of the Honble Supreme Court in SLP(C) No.14889 of 2009 in the matter of Government of India & another v Ravi Prakash Gupta & another, decided on 07.07.2010. The Honble Supreme Court held, thus:
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 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. In the judgment of the Honble Supreme Court, provision has been made for granting reservation in Group A posts.
15. It has been alleged by the applicant that he appeared in CSE 2008 and qualified in the written examination and was also called for personality test, but he has not been selected and his name has not been recommended by UPSC for appointment. That the Commission only recommended four persons to be selected, but it has not been mentioned that they have been selected against reservation quota or against their own merit. That five candidates ought to have been selected on their own merits belonging to visually impaired category, and the applicant ought to have been selected against a reserved vacancy. We have held above that providing a scribe and allowing an extra half an hour to attempt the examination to a visually impaired person is a facility in order to ensure the equality of opportunity to such persons, and it is not relaxed standard. In the CSE 2008, only four candidates have been selected. Although it has not been mentioned that these candidates have been selected against reserved category or on their own merits, but the respondent No.1 in its counter reply has specifically stated that these four persons were selected against reserved category and no candidate was selected from the visually impaired category on his own merits, because they have availed the so called relaxed standards of scribe and extra time to attempt the examination. We have decided above that this is a facility and not relaxed standard. If a candidate belonging to visually impaired category avails the relaxed standard of age relaxation or the extra number of attempts, then it can be said that he has availed the relaxed standard and he will not be selected against his own merit; rather he will be selected against reserved category, but if a candidate who is entitled according to his rank to be selected on his own merits without availing the relaxed standard of age and number of attempts, then he is to be adjusted on his own merits, and for this purpose, the respondents will have to undertake an exercise that in the CSE 2008 and other examinations how many candidates were selected on their own merits without availing the relaxed standard, and they will be adjusted in the unreserved category, and thereafter the earmarked vacancies are to be filled up by other visually impaired persons who are entitled to be selected and who could not be selected on their own merits. It has been argued by the learned senior advocate for the applicant that nine posts were earmarked in the CSE 2008 for the visually impaired persons, and against the nine posts, only four candidates have been selected, without mentioning that they have been selected on their own merits or against reserved category. The learned counsel also argued that five persons must be selected on their own merits and they must be adjusted accordingly, in view of the office memorandum dated 29.12.2005, and rest of the vacancies should be filled up by other candidates belonging to reserved category. Under these circumstances, the OA deserves to be allowed.
16. The OA is allowed. The respondent No.1, UPSC, is directed to undertake the exercise in order to decide that in the CSE 2008 and other examinations how many candidates on the basis of their ranking deserve to be selected on their own merits, and they must be adjusted against unreserved vacancies on their own merits as provided in the office memorandum dated 29.12.2005, and thereafter rest of the candidates belonging to visually impaired category must be selected against reserved category, and if the applicants are to be selected against reserved category, then they must be given appointment. The respondents shall undertake this exercise within a period of three months from today. There shall be no order as to costs.
17. All the OAs are disposed of accordingly. A copy of this order be placed on the record of each and every OA.
( Dr. Ramesh Chandra Panda ) ( S. C. Sharma )
Member (A) Acting Chairman
/as/