Central Administrative Tribunal - Delhi
Oa 1893/2009 vs Union Public Service Commission on 8 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1893/2009 MA 1873/2010 With OA 1538/2009, OA 1545/2009, OA 1986/2009(MA 1872/2010), OA 2105/2009, OA 2369/2009, OA 2402/2009 and OA 2717/2009 New Delhi this the 8th day of October, 2010. Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) 1. OA 1893/2009 N.Shravan Kumar, Aged 34 years S/o Shri N.R.K.Sharma, R/o 3-6-661 & 662, F.No. 504, Sai Sandhya Apartments, Street No.9, Himayathnagar, Hyderabad- 500029 (AP). .. Applicant (By Advocate Shri S.K. Rungta ) VERSUS 1. Union Public Service Commission, Through 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 Advocate Shri Naresh Kaushik with Ms. Manisha Bidoni Counsel for respondent No.1 and Shri R.V.Sinha with Shri R.N.Singh counsel for respondent No.2 ) 2. OA 1538/2009 Avinash Bansal, Aged 26 years S/o Shri R.C. Bansal, R/o Sessions House, Kurukshetra, Haryana. .. Applicant (By Advocate Shri S.K. Rungta ) VERSUS 1. Union Public Service Commission, Through Chairman, Dholpur House, Shahjahan Road, New Delhi-110003 2. M/o Personnel, P.G. & Pensions, Through its Secretary, North Block, New Delhi. Respondents (By Advocate Shri Naresh Kaushik with Ms. Manisha Bidoni Counsel for respondent No.1 and Shri R.V.Sinha with Shri R.N.Singh counsel for respondent No.2 ) 3. OA 1545/2009 Dinesh Kumar, S/o Shri Harendra Nath Thakur, R/o E-23, Indian Agriculture Research Institute, Pusa, New Delhi. Applicant (By Advocate Shri S.K. Rungta ) VERSUS 1. Union Public Service Commission, Through Chairman, Dholpur House, Shahjahan Road, New Delhi-110003 2. M/o Personnel, P.G. & Pensions, Through its Secretary, North Block, New Delhi. Respondents (By Advocate Shri Naresh Kaushik with Ms. Manisha Bidoni Counsel for respondent No.1 and Shri R.V.Sinha with Shri R.N.Singh counsel for respondent No.2 ) 4. OA 1986/2009 Shiwam Kumar Aged 30 years, S/o Shri M.P.Verma, R/o G-5/213, Sector-16, Rohini, Delhi-85 Applicant (By Advocate Shri S.K. Rungta ) VERSUS 1. Union Public Service Commission, Through 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 Advocate Shri Naresh Kaushik with Ms. Manisha Bidoni Counsel for respondent No.1 and Shri R.V.Sinha with Shri R.N.Singh counsel for respondent No.2 ) 5. OA 2105/2009 Rahul Mittal, Aged 26 years S/o Shri M.P.Mittal, R/o 74, Preeti Nagar, Opp. Jindal Gyan Kendra, Hissar, Haryana. Applicant (By Advocate Shri S.K.Rungta ) VERSUS 1. Union Public Service Commission, Through 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 Advocate Shri Naresh Kaushik with Ms. Manisha Bidoni Counsel for respondent No.1 and Shri R.V.Sinha with Shri R.N.Singh counsel for respondent No.2 ) 6. OA 2369/2009 Ajit Kumar Aged about 35 years S/o Shri Rampat Singh R/o H. No. 2663, Hudson Line, Kingsway Camp, Near Delhi University, Delhi. Applicant (By Advocate Shri S.K. Rungta) VERSUS 1. Union Public Service Commission, Through Chairman, Dholpur House, Shahjahan Road, New Delhi-110003 Union of India, Through Secretary, M/o Personnel, P.G. & Pensions, North Block, New Delhi. Respondents (By Advocate Shri Naresh Kaushik with Ms. Manisha Bidoni Counsel for respondent No.1 and Shri R.V.Sinha with Shri R.N.Singh counsel for respondent No.2 ) 7. OA 2402/2009 Pankaj Kumar Srivastava, Aged 29 years S/o Shri Radheshyam Srivastava R/o Solanipuram 174-A, Rurki, Distt. Haridwar, Uttarkhand. Applicant (By Advocate Shri S.K. Rungta ) VERSUS 1. Union Public Service Commission, Through 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 Advocate Shri Naresh Kaushik with Ms. Manisha Bidoni Counsel for respondent No.1 and Shri R.V.Sinha with Shri R.N.Singh counsel for respondent No.2 ) 8. OA 2717/2009 Ashish Singh Thakur, Aged about 30 years S/o Shri P.S.Thakur, R/o Radhika Niwas, Daihan Para, Purana Sarkanda Bilaspur (C.G), Chhatisgarh-495001 Applicant (By Advocate Shri S.K. Rungta) VERSUS 1. Union Public Service Commission, Through 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 Advocate Shri Naresh Kaushik with Ms. Manisha Bidoni Counsel for respondent No.1 and Shri R.V.Sinha with Shri R.N.Singh counsel for respondent No.2 ) O R D E R Mr. L.K.Joshi, Vice Chairman (A):
We are dealing with these OAs in this common order as common questions of law are involved and the facts are identical.
2. The Applicants, who appeared in Civil Services Examination (CSE), are seeking the benefit of reservation for persons with disabilities as provided under Section 33 of the Persons With Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 (hereafter the Disabilities Act).
3. Facts of the cases.
(i) OAs Numbers 1893/2009, 2105/2009, 2402/2009 and 1986/2009 The Applicants in these OAs suffer from the disability of blindness. They appeared in the CSE 2008. They succeeded in the written examinations and were called for the interview, in which they appeared. They were, however, not recommended for appointment. Aggrieved by this, they have approached this Tribunal seeking the following relief:
(b) Consequently, 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 and low vision 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 in the implementation of Section 33 of The persons With Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995.
(ii) OA Number 1538 of 2009 The Applicant herein is a hearing impaired person, who appeared for the CSE 2008. After qualifying in written examinations, he was called for the interview, in which also he appeared. He was, however, not recommended for appointment by the Union Public Service Commission (UPSC), the first Respondent. He is seeking identical relief as in the OAs mentioned above.
(iii) OAs Number 2717 and 2369 of 2009 The Applicants in these OAs, visually impaired persons, appeared for the CSE 2008. The Applicant in OA number 2717 of 2009, ranking 435 in the merit list, was selected for the Indian Postal Service and the Applicant in OA number 2369 of 2009, ranking 208 in the merit list, was selected for Indian Railways Personnel Service. The Applicant in OA number 2717 of 2009 is seeking the following relief:
(b) Consequently, direct the respondents to appoint the applicant to an Indian Administrative Service post on the basis of his Rank No. 435 and performance in CSE 2008 instead of Indian Postal Service against one of the reserved backlog vacancies available at present for visually impaired persons both in terms of Section 33 of the persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 and 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 O.M. bearing No. 36038/2/2008-Estt. (Res) dt. 10.12.2008 & O.M No.36012/ 23/2009-Estt. (Res) dt.10.12.2008 & judgment dt. 25.2.2009 passed in W.P. ( C) No. 5429/2008 with all consequential benefits. The Applicant in OA number 2369 of 2009 is, mutatis mutandis, seeking the same relief as the Applicant in OA number 2717 of 2009.
(iv) OA Number 1545 of 2009.
The Applicant in this OA, a visually handicapped person, appeared in the CSE 2005 and was allotted to the Indian Postal Service. He is also seeking direction to the Respondents to appoint him to the Indian Administrative Service against one of the backlog vacancies available for visually impaired persons.
4. Before we consider the arguments of the parties, we shall like to extract the relevant Sections of the Disabilities Act. Sections 32, 33 and 36 have been reproduced below:
32. Identification of posts which can be reserved for persons with disabilities.- Appropriate Government 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 development 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 percent each shall be reserved for persons suffering from-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
36. Vacancies not filled up to be carried forward.- Where in any recruitment year any vacancy under section 33 cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government. The Office Memoranda (OM) number 36035/3/2004-Estt. (Res) dated 29.12.2005 and 36035/8/2003-Estt. (Res) dated 26.04.2006, issued by the Department of Personnel and Training (DOP&T), have also been adverted to. The OM dated 29.12.2005 deals with the subject of reservation for persons with disabilities. Paragraph 7 of the aforesaid OM reads thus:
7. Adjustment of candidates selected on their own merit: 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. The OM dated 26.04.2006 also deals with reservation for persons with disabilities. The relevant paragraphs of the above said OM have been reproduced below:
1. The undersigned is directed to say that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which came into existence on 1.1.96 provides for reservation for persons with disability in the posts identified for three categories of disabilities namely (i) blindness or low vision. (ii) hearing impairment and (iii) locomotor disability or cerebral palsy. Instructions have also been issued by this Department for providing reservation for such persons. In spite of the Act and the instructions of this Department, vacancies were not earmarked reserved or were not filled by reservation in some establishments.
2. The matter has been considered carefully and it has been decided that reservation for persons with disabilities should be implemented in right earnest and there should be no deviation from the scheme of reservation, particularly after the Act came into effect. In order to achieve this objective, all the establishments should prepare, the reservation roster registers as provided in this Departments O.M. No. 36035/3/2004-Estt. (Res) dated 29.12.2005 starting from the year 1996 and reservation for persons with disabilities be earmarked as per instruction contained in that OM. If some or all the vacancies so earmarked had not been filled by reservation and were filled by able bodied persons either for the reason that points of reservation had not been earmarked properly at the appropriate time or persons with disabilities did not become available, such unutilized reservation may be treated as having been carried forward to the first recruitment year occurring after issue of this O.M. and be filled as such. If it is not possible to fill up such reserved vacancies during the said recruitment year, reservation would be carried forward for further two years, whereafter it may be treated as lapsed. (emphasis added)
5. Since it was contended that these cases are squarely covered by the judgement of the Honourable Delhi High Court in W P ) number 5429/2008 in Ravi Prakash Gupta Vs. UPSC and others, which was upheld by the Honourable Supreme Court in the Special Leave Petition ) number 14889 of 2009, decided on 7.07.2010, it would be useful also to refer to these judgements. Ravi Prakash Gupta, the petitioner before the Honourable Delhi High Court, was a Visually impaired person with 100 per cent visual disability. He appeared in the CSE 2006. After successfully competing in the written examinations, he appeared for the interview. His name, however, was not recommended for appointment. Name of one blind candidate appeared in the list of successful candidates. The petitioner was at serial number five in the merit list prepared for the visually impaired candidates. The contention of the petitioner was that more than five vacancies were available in the category for the visually impaired persons for appointment to the IAS, but the respondent offered only one post under this category. The respondent had informed the petitioner under the Right to Information Act, 2005 that there was no backlog for the physically handicapped persons in the IAS for the year 2006. The contention of the petitioner before the Honourable Delhi High Court was that the Disabilities Act came into force in the year 1996, in which mandatory three per cent reservation was provided for the physically disabled persons. It was contended that the mandate was given in the year 1996 and the Government was supposed to provide reservation from that year onwards. The respondents before the High Court had given the following information about the number of posts filled up for the categories of the disabled persons from CSE 1996 onwards. The table is reproduced below:
Examination year Services in which the vacancies were reserved for Physically Handicapped Category wise break up of vacancy for Physically Handicapped candidates as intimated by the UPSC. No. of Vacancies reserved for PH in various services.
CSE-1996 Nil Nil Nil CSE-1997 Nil Nil Nil CSE-1998 Nil Nil Nil CSE-1999 Nil Nil Nil CSE-2000 Nil Nil Nil CSE-2001 P&TFAS locomotor disability or hearing impairment 2 ITS locomotor disability or hearing impairment 2 AFHQ locomotor disability or hearing impairment 2 CSE-2002 AFHQ Locomotor disability or cerebral palsy 1 CSE-2003 P&TFAS locomotor disability or cerebral palsy or hearing impairment 1 IA&AS locomotor disability or cerebral palsy 1 AFHQ hearing impairment 1 PONDICs locomotor disability or cerebral palsy 1 CSE-2004 P&TFAS locomotor disability or cerebral palsy or hearing impairment 1 IDAS locomotor disability or cerebral palsy 1 IoFS hearing impairment 1 AFHQ locomotor disability or cerebral palsy 1 CSE-2005 IAS low vision 1 hearing impairment 1 IFS hearing impairment 1 IC&CES locomotor disability or cerebral palsy 1 hearing impairment 1 IDAS locomotor disability or cerebral palsy 1 IRS locomotor disability or cerebral palsy 1 IPoS low vision 1 ITS locomotor disability or cerebral palsy 1 AFHQ locomotor disability or cerebral palsy 1 DANICs hearing impairment low vision 1 1 CSE-2006 IAS locomotive disability or cerebral palsy 1 low vision 1 hearing impairment 1 IAAS locomotor disability or cerebral palsy 1 IRS (C&E) ortho/locomotor disability 1 hearing impairment 1 IDAS ortho/locomotor disability 1 IRS ortho/locomotor disability 3 hearing impairment 1 ICAS ortho/locomotor disability 1 IRAS ortho/locomotor disability 1 IRPS ortho/locomotor disability 1 AFHQ hearing impairment 1 DANICs ortho/locomotor disability 1 DANIPs ortho/locomotor disability 1 PONDICs ortho/locomotor disability 1 CSE-2007 IAS locomotor disability or cerebral palsy 1 low vision 1 hearing impairment 1 IFS locomotor disability 1 IRS (C&CES) locomotor disability or cerebral palsy 2 hearing impairment 2 IDAS locomotor disability 1 IRS (IT) locomotor disability 2 Hearing impairment 3 IoFS Low vision 1 ICAS hearing impairment 1 IPoS hearing impairment 1 IRAS hearing impairment 1 IRPS hearing impairment 1 AFHQ locomotor disability or cerebral palsy 1 DANICs locomotor disability or cerebral palsy 1 DANIPs hearing impairment 1 It was noted by the High Court in its judgement that from 1996 to 2005 only one vacancy of visually handicapped person was filled up, whereas the number of vacancies for visually handicapped persons alone should have been eight, because during this period 785 posts in IAS were filled up and at one per cent the reservation should have been eight. It was noted that the DOP&Ts OM of 26.04.2006, quoted above, specifically mentioned that the reservation roster provided in the OM of 29.12.2005 should be prepared right from the year 1996. It was observed that:
Following position follows from the reading of this OM:
Reservation for persons with disabilities were to be earmarked from the year 1996;
(b) If the vacancies so earmarked had not been filled up by reservation in the previous year, they had to be treated as having been carried forward to the first recruitment year occurring after the issue of the said OM and were to be filled as such;
(c) Only if it was not possible to fill up such reserved vacancies during the following recruitment years and within a further period of two years thereafter, they were to be treated as lapsed;
(d) The mandate of even this OM was to calculate the backlog from the year 1996 and fill up the same in the following year. The OM is dated 26.04.2006 and therefore, the vacancies which were to be filled up in the year 2007 were to be done in the aforesaid manner. The petition was allowed with direction to allocate the petitioner to IAS, as he was number five in the merit list of visually handicapped persons and seven backlog vacancies were available. The Union of India filed an SLP before the Honourable Supreme Court. It was, inter alia, contended on behalf of the Union of India that the reservation of posts was contingent upon identification of posts under Section 32 of the Disabilities Act and the identification for various services started on various dates, i.e., for IAS from the year 2005. The Supreme Court held thus:
14. That the Respondent No. 1 is eligible for appointment in the Civil Services after having been declared successful and having been placed at serial no. 5 in the disabled category of visually impaired candidates, cannot be denied. The only question which is relevant for our purpose is whether on account of the failure of the Petitioners to identify posts for persons falling within the ambit of Section 33 of the Disabilities Act, 1995, the Respondent No.1 should be deprived of the benefit of his selection purportedly on the ground that there were no available vacancies in the said category. The other question which is connected with the first question and which also requires our consideration is whether the reservation provided for in Section 33 of the Disabilities Act, 1995, was dependent on identification of posts suitable for appointment in such categories, as has been sought to be contended on behalf of the Government of India in the instant case.
15. Although, the Delhi High Court has dealt with the aforesaid questions, we wish to add a few observations of our own in regard to the objects which the legislature intended to achieve by enacting the aforesaid Act. The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Grade `A and `B posts in the I.A.S. was undertaken after the year 2005 is not of much substance. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Grade `A, `B, `C and `D posts. They only speak of identification and reservation of the posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said Section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.
16. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment.
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 candidature 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.
6. It is in the above perspective the learned counsel for the Applicants would contend that the scheme of reservation under the Disabilities Act has not been implemented by the Respondents. For CSE 2008, there were 881 reported vacancies. The first Respondent recommended 791 candidates for appointment. Only 20 physically handicapped candidates were recommended for appointment. It was submitted that even against 791 vacancies, for which recommendations were made, the share of the physically handicapped for reservation would have been 24 for the three categories. Out of this the share of the visually handicapped would be eight. The Respondents recommended only four persons in the category of visually handicapped. It is further submitted that the visually handicapped persons recommended by the first Respondent also could not have been counted towards the quota of reservation because these candidates had qualified on their own merit and by virtue of the paragraph 7 of the DOP&Ts OM of 29.12.2005, they would not be counted for reservation. As per the information obtained under the Right to Information Act, 2005, placed at Annex G, the following candidates were recommended as visually impaired:
Name Roll No. Rank Manjule Balaji Digamber 006566 56 Ajit Kumar 219116 208 Ashish Singh Thakur 035020 435 Sreenivasulu Budigi 107255 583 These candidates have thus qualified on their own merit.
It was urged that the Respondents have not only violated the provisions of the Disabilities Act but also their own OM, in which instructions regarding adjustment of candidates with physical disability selected on their own merit have been unambiguously laid down. Yet another argument was that the Applicants in the OAs listed in paragraph 3 (i) of this order had secured more marks than some of the candidates who did not belong to physically disabled category. It has been averred thus in paragraph 4 (L) of the OAs thus:
4.l) That a perusal of the result CSE 2008 brings out that the applicant has secured 1144 marks in all in CSE 2008. The result further reveals that there are certain other candidates who secured less marks than the applicant who have been recommended for appointment as per following details:-
Name Roll No. Rank Ratinder Kaur 053686 1142 Mani Ram Sharma 111163 1136 Ajay Kumar Singh 168451 1041 Nitin Kumar Shivraj 289913 1034 Kondal Wade Kannan C 073630 1024 K. Manoranjan Nayak 051583 1011
The Respondents have not denied it. The DOP&T, the first Respondent, has stated in its reply that it was for the UPSC, the second Respondent to answer. UPSC has not rebutted this. The learned counsel for the UPSC has not touched upon this aspect.
7. In case of the Applicant, Avnish Bansal, belonging to hearing impaired quota, in OA number 1538 of 2009, in addition to above arguments, except the argument that candidates not belonging to disabled category had been recommended though they had lesser marks, an additional argument was that no candidate belonging to the quota of hearing impaired had been recommended for appointment. It has been averred thus in paragraph 4 (L) of the OA number 1538 of 2009 thus:
4.l) That the applicant sought the following information from respondent vide his RTI application dated 11.5.2009:
(a) Rank of the applicant in the merit drawn for hearing impaired candidates in CSE Examination 2008;
(b) Number of vacancies reserved for hearing impaired
candidates.
) Number of hearing impaired candidates recommended by UPSC.
(d) Backlog of reserved vacancies for hearing impaired candidates.
The method by which the backlog of reserved
vacancies is proposed to be filled up.
The respondent No.2 vide its letter bearing No. 13011/6/2009-AIS-1 dated 19.5.2009 replied the said application stating therein that points No. 1,2 & 3 have been referred to UPSC for furnishing information while point No.4 & 5 are such that information cannot be provided on the basis of the judgment dt. 21.4.2006 of CICs in case No. CIC/AT/A/2006/00045. The applicant is yet to receive the reply from respondent No.1 UPSC. Copies of application along with receipts dt. 11.5.09 under RTI as well as reply of respondent No. 2 dt. 19.5.2009 are attached herewith and marked as Anenxure-H. The Respondent-DOP&T has stated in reply that the contents of the paragraph are matter of record. The same reply has been given by the Respondent-UPSC.
8. It was urged on behalf of Ashish Singh Thakur, Applicant in OA number 2717 of 2009, and Ajit Kumar, Applicant in OA number 2369 of 2009, both candidates in CSE 2008, that after counting the current and backlog vacancies for IAS they should have been allocated to that service as sufficient number of posts were available, which were not taken into account by the Respondents. The same argument has been made for the Applicant in OA number 1545 of 2009, Dinesh Kumar, the candidate in CSE 2005.
9. The Respondent-DOP&T had in its counter affidavit had taken the argument that the reservation under Section 33 of the Disabilities Act would depend on the identification of posts under Section 32 ibid. The counter affidavit was filed before the judgement of the Honourable Supreme Court. The argument loses steam after the Apex Court laid down the law that reservation under Section 33 is not dependent on the identification under Section 32 of the Disabilities Act. No other argument has been advanced by the Respondents.
10. To sum up on the basis of above discussion:
(a) the Disabilities Act provides for reservation for physically handicapped to the extent of three per cent, one per cent each for visually handicapped, hearing impaired and persons with loco motor disability and cerebral palsy;
(b) the reservation would be applicable from the year 1996, regardless of identification under Section 32 of the Disabilities Act; ) the candidates selected on their own merit would not count among the reserved category and would be counted as unreserved category as per the DOP&Ts OM of 29.12.2005;
(d) vacancies not filled in a particular year would be carried forward and would lapse if not filled up for the next two years;
(e) reservation was not made under Section 33 of the Disabilities Act and, therefore, the question of carry forward and lapsing of posts does not arise;
(f) those selected on their own merit would not be counted among the reserved category candidates;
(g) the persons belonging to the non-disabled category who have secured lesser marks than the persons belonging to the disabled category cannot be recommended for appointment disregarding the claim of the candidates of disabled category on the basis of the posts available for them; and
(h) advantage of reservation has to be given to the physically handicapped candidates after working out the number of vacancies available on the basis of total number of posts recommended and the backlog vacancies.
11. The OAs numbers (mentioned in paragraph 3(i) and 3(ii) ) are allowed. The First Respondent is directed to carry out an exercise to work out the backlog vacancies in different services and the vacancies of the year 2008 to consider allocation of the Applicants to suitable services as per their choices. Since this would entail consultation with cadre controlling authorities, we are giving six months time to complete this exercise. The allocation of services to the Applicants would be from the date of allocation of services to the candidates of CSE 2008. The allocation would be on notional basis and the Applicants would not be entitled to back wages, but it would count towards seniority and calculation of increments. If no service is decided to be allocated to any one of the Applicants, detailed, cogent and logical reasons would be recorded in a speaking order, which the Applicants would be at liberty to challenge in a fresh proceeding before the appropriate forum. The Applicants in OAs numbers 2717 and 2369 of 2009 would be considered for allocation to IAS within eight weeks from the receipt of this order.
12. We cannot give any relief to the candidate in OA number 1545 of 2009, who appeared in the CSE 2005. The reasons for condoning delay that the Applicant came to know about the judgement of the High Court in Ravi Prakash Gupta (supra) only in April 2009, cannot be accepted. The limitation before the Tribunal is counted as per the provision of Section 21 of the Administrative Tribunals Act, 2005, which reads thus:
21. Limitation A Tribunal shall not admit an application,-
(a) In a case where a final order such as is mentioned in Clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) In a case where an appeal or representation such as is mentioned in Clause (b) of sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where-
the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in Clause (a), or, as the case may be, Clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in Clause (a) or Clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. The Honourable Supreme Court in State of Karnataka and others Vs. S.M.Kotrayya and others, (1996) 6 SCC 267 observed as follows:
9. Thus considered, we hold that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-sections (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation. In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay. The OA is dismissed as barred by limitation.
13. There will be no orders as to costs.
14. A copy of this order may be placed in each of the OAs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman `sk