Allahabad High Court
Ajay Kumar Pandey And 2 Others vs State Of U.P. And 3 Others on 15 February, 2019
Bench: Pankaj Mithal, Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 06.02.2019 Delivered on 15.02.2019 Court No. - 29 Case :- WRIT - A No. - 25148 of 2018 Petitioner :- Ajay Kumar Pandey And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Veer Singh Counsel for Respondent :- C.S.C. Hon'ble Pankaj Mithal,J.
Hon'ble Rohit Ranjan Agarwal,J.
All the three petitioners allege that they are physically handicapped persons who have applied for selection on the post of Safai Karmi advertised by the office of District Panchayat Raj Officer, Mau. They are entitle to the benefit of reservation available to disabled persons in the matter of recruitment on the said post but they have been denied the said benefit of reservation on the basis of the Government Order dated 07.05.1999. Therefore, the challenge is to the aforesaid G.O. The 4th respondent, District Panchayat Raj Officer, Mau vide advertisement dated 16.06.2008 published in the newspapers invited applications to fill up 1651 posts of Safai Karmi wherein 50 vacancies were reserved for disabled persons. The petitioners who are all disabled persons suffering from locomotor disability rather than from hearing impairment duly submitted their applications within time along with all necessary documents. They were invited for cycle test and interview and at that time they submitted their educational certificates including certificate of disability, experience, etc. The result of the said selection was declared but none of the disabled candidates including the petitioners were selected.
The petitioners, therefore, filed Writ A No. 9794 of 2009 (Ajay Kumar Pandey and others Vs. State of U.P. and others) challenging the aforesaid selection on the ground that as the reservation to physically handicapped persons was not provided the entire selection stands vitiated.
In the aforesaid writ petition, along with the counter affidavit, a Government Order dated 07.05.1999 was brought on record which stated that in exercise of powers under Section 32 and 33 of the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 19951, on the posts of Sweeper reservation as per The U.P. Public Services (Reservation For Physically Handicapped, Dependants of Freedom Fighters and Ex-Servicemen) Act, 19932, as amended in 1997, is available to disabled persons but only to deaf and partial deaf persons. In other words, the said Government Order provides reservation to persons with hearing impairment but excludes persons with other disabilities from the ambit of the reservation on the posts of Sweeper.
The aforesaid writ petition was dismissed in view of the aforesaid Government Order holding that it does not provide for reservation to physically handicapped persons other than deaf and partially deaf persons and therefore the petitioners who are not deaf or partially deaf are not entitle to any benefit of such reservation.
The petitioners, for the first time, came to know of the Government Order dated 07.05.1999 through the above writ petition decided on 02.03.2012 and after legal consultation were advised to challenge the validity of the aforesaid Government Order.
The petitioners have, therefore, again invoked the writ jurisdiction of this Court, this time for challenging the aforesaid Government Order No. 4161/63-1-99-18(24)/97 dated 07.05.1999 issued by the Secretary, Uttar Pradesh Shashan, Disability Welfare Section-I, Lucknow as ultra-vires and for declaring the result of the aforesaid selection in accordance with law by applying the reservation to the disabled persons including the petitioners.
In the first petition, challenge was to selection as reservation was not provided to the physically handicapped persons whereas in the instant petition the challenge is to the vires of the G.O. dated 07.05.1999. Thus, ex-facie the cause of action is different in both the petitions and it cannot be construed that this petition is a second petition for the same cause of action.
The writ petition was duly entertained and notice was issued to the Advocate General as the vires of the aforesaid Government Order was under challenge. Learned Standing Counsel was also directed to inform the Advocate General of it and the parties were directed to assist the Court on the legal issue raised and involved in the writ petition. The respondents were also granted liberty to file documents which they seek to rely upon in defence of the challenge raised in the writ petition. Thereafter, the petition was adjourned on several dates for one reason or the other and came to be listed before us but neither the Advocate General appeared nor any documents were filed.
We heard Sri Ram Janam Sahai, learned counsel holding brief of Sri Veer Singh appearing for the petitioners and Sri Pankaj Rai, Additional Chief Standing Counsel for the respondents.
The Advocate General had not appeared despite direction given earlier nor any reason for his absence was informed to the Court rather the Additional Chief Standing Counsel took the position to defend the aforesaid Government Order under challenge.
The short submission of learned counsel for the petitioners is that when under the Disabilities Act, 1995, disability has been defined to include not only hearing impairment but other forms of disabilities such as blindness, low vision, locomotor disability, etc. and the U.P. Reservation Act of 1993 provides for 1 percent horizontal reservation to the persons with locomotor disability or cerebral palsy. The impugned Government Order cannot take away the said right of reservation by confining the reservation to the persons with hearing impairment i.e. deaf or partial deaf persons only.
In response to the above argument, Sri Pankaj Rai, Additional Chief Standing Counsel submits that the State Government is competent to identify the posts on which reservation to disabled persons can be provided having regard to the nature of the work assigned to the post concerned in view of Section 32 and 33 of the Disabilities Act, 1995.
On the respective submissions of the parties, the sole question which arises in this petition is whether the Government Order dated 07.05.1999 is illegal and ultra-vires to the provisions of U.P. Reservation Act of 1993 and the Disabilities Act, 1995 inasmuch as it excludes the disabled persons other than with hearing impairment i.e. deaf and partial deaf from reservation available to disabled persons.
In order to express any opinion on the above question, it would be profitable for us to first deal with the relevant provisions of the aforesaid two Acts and the impugned Government Order dated 07.05.1999.
The Disabilities Act, 1995 is a Central Act which defines disability to include-:
i. blindness;
ii. low vision;
iii. leprosy-cured;
iv. hearing impairment;
v. locomotor disability;
vi. mental retardation;
vii. mental illness.
It means that any person suffering from any of the above form of disabilities would be a person with disability. Thus, disability apart from including hearing impairment i.e. deafness and partial deafness includes other forms of disabilities as stated above.
Section 33 of the Disabilities Act, 1995 provides that every appropriate Government shall provide such percentage of vacancies not less than 3 percent for persons or class of persons of disability, of which 1 percent each shall be reserved for persons suffering from (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy on the posts identified for reservation to persons with disability.
The above provision contemplates for providing 3 percent reservation in total to persons with disability of blindness or low vision, hearing impairment and locomotor disability or cerebral palsy and 1 percent reservation for each category of the above disability. In other words, it provides for 1 percent reservation of vacancies in favour of persons suffering from locomotor disability or cerebral palsy in addition to the reservation for persons suffering from blindness and low vision and hearing impairment.
The U.P. Reservation Act of 1993 also vide Section 3 provides for reservation of 1 percent of vacancies each for persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy.
For the sake of convenience, provisions of Section 32 and 33 of the Disabilities Act, 1995 and the relevant portion of Section 3 of the U.P. Reservation Act of 1993 are reproduced hereinbelow-:
Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995-: "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) Bearing impairment;
(iii) Loco motor 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."
The U.P. Public Services (Reservation For Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993-:
"3. Reservation of vacancies in favour of physically handicapped etc. - [(1) There shall be reserved at the stage of direct recruitment],- [(i) ********;
(ia) ********;
[((ii) In such public services and posts as the State Government may, by notification, identify one per cent of vacancies each for the persons suffering from-
(a) blindness or low vision;
(b) hearing impairment;
(c) locomotor disability or cerebral palsy;"
A bare reading of the above provisions would indicate that the appropriate Government has to identify the posts in the establishment which can be reserved for persons with disabilities and to revisit the said identification at periodical intervals not exceeding 3 years. Secondly, 3 percent of the posts have to be reserved for persons with disabilities out of which 1 percent each shall be reserved for persons suffering from (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy.
The above percentage of reservation also stands approved and confirmed in its application to the State of U.P. by the U.P. Reservation Act of 1993.
The impugned Government Order dated 07.05.1999 discloses the list of posts identified under Section 32 and the post of Sweeper is one of them. Therefore, on the posts of Sweepers reservation to disabled persons would be available as mentioned above. However, the said G.O. further provides that in respect of the said post, reservation to the disabled persons would be available only to persons suffering from hearing impairment i.e. those who are deaf or partially deaf. This narrowing down of the applicability of reservation to one category of the disabled persons on the post of Sweeper is being objected to by the petitioners.
The petitioners contend that when the post of Sweeper has been identified as posts reserved for disabled persons, there is no justification to exclude other categories of disabilities from its applicability other than hearing impairment.
The Additional Chief Standing Counsel submits that this has been done by the State Government in exercise of its powers under Section 32 of the Disabilities Act, 1995 which permits it to identify posts which can be reserved for the persons with disabilities especially when the proviso to Section 33 of the said Act provides for taking into account the nature of work carried on in the department concerned in identifying the posts for such reservation.
The submissions made by Additional Chief Standing Counsel are based upon complete misreading of the aforesaid provisions and are simply confusing.
The aforesaid provisions are as clear as crystal and leaves no room for any ambiguity.
Section 32 only allows the State Government to identify posts in each establishment which can be reserved for persons with disabilities. The post of Sweeper in the establishment of District Panchayat Raj Officer is undoubtedly the post which has been identified for applying reservation in favour of disabled persons. The purpose of Section 32 stands fulfilled with the said identification. Therefore, reservation as per law is applicable on the said post of Sweeper to the disabled persons.
The disabled persons as per the definition of disability under Section 2 (i) of the Disabilities Act, 1995 includes inter-alia other forms of disability in addition to hearing impairment. Thus, in view of Section 33 of the Disabilities Act, 1995 read with Section 3 of the U.P. Reservation Act of 1993, all categories of disabled persons are entitle to avail reservation upto 3 percent of which 1 percent each is available to persons suffering from (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy.
The Proviso to Section 33 of the Disabilities Act, 1995 is in respect of granting exemption to any establishment from the applicability of the said Act and it is for the grant of such an exemption that the nature of the work in the establishment becomes an important consideration. The said consideration is not for the purposes of apportioning the applicability of reservation amongst the different categories of the disabled persons.
The above provisions of law together in no ambiguous terms provides that reservation in favour of the disabled persons has to be to the extent of 1 percent in each category of disability whether it be blindness or low vision, hearing impairment, locomotor disability or cerebral palsy.
In Government of India Through Secretary and another Vs. Ravi Prakash Gupta and another, (2010 (7) SCC 626), the Apex Court while considering the provisions of Section 32 and 33 of Disabilities Act, 1995 held that unless the posts are identified for the purposes of Section 33, no appointments from the reserved categories as mentioned therein can be made and that to such extent the provisions of Section 33 are dependant upon Section 32 of the Disabilities Act, 1995, but the extent of such dependence would be for the purposes of making appointments and not for the purposes of making reservation.
In other words, first the posts of any establishment has to be identified on which reservation to persons with disabilities can be provided and once this is done, then it is contemplated that 1 percent post in each category of disability viz. blindness or low vision, hearing impairment, locomotor disability and cerebral palsy be reserved, meaning thereby that it is mandatory to provide reservation to the extent of 1 percent to disabled persons in every category of disability including locomotor disability or cerebral palsy which is other than hearing impairment. Therefore, providing of any reservation to disabled persons with hearing impairment alone or those suffering from deafness or partial deafness and excluding those with other forms of disabilities vide the aforesaid Government Order is in conflict with the express provisions of the above two Acts and, at the same time, is arbitrary and discriminatory in nature.
It may be pertinent to mention here that physical disability or locomotor disability is also of varied nature. A person with one arm, one leg or a person who is completely blind or blind with one eye are all persons with locomotor disability. All such categories of persons are capable of doing the work which may be assigned to a Sweeper though with little incapacity. Thus, it is beyond one's imagination to exclude a person with loss of vision in one eye to exclude from the benefit of the reservation on the aforesaid post. Similar would be the position with a person with one arm or one leg.
Thus, the respondents cannot even make any intelligible distinction between the different categories of disabled persons in the matter of providing reservation when the Acts provide for reservation in favour of all categories of disabled persons.
In view of the aforesaid facts and circumstances, we are of the opinion that the Government Order No. 4161/63-1-99-18(24)/97 dated 07.05.1999 insofar as it provides reservation to persons with disabilities in the category of hearing impairment alone is illegal and ultra-vires to Article 14 and 16 of the Constitution of India as well as Section 3 of the U.P. Reservation Act of 1993 and Sections 32 and 33 of the Disabilities Act, 1995. The reservation would be applicable to each category of disabled persons in accordance with the provisions of U.P. Reservation Act of 1993 read with Disabilities Act, 1995.
Accordingly, the Government Order dated 07.05.1999 is struck down to the extent indicated above.
We are however not inclined to disturb the selection pursuant to the advertisement dated 16.06.2008 as enough time since its completion has elapsed and the selected persons likely to be disturbed to accommodate the petitioners are not party in the petition. Therefore, the second relief claimed in the petition stands rejected.
The Writ Petition stands allowed to the above extent with no order as to costs.
Order date- 15.02.2019 Nirmal