In this case decided by the Supreme Court in 2010, it was held that once specific posts have been identified for persons with disabilities, the reservation must be provided as per the statute. The case related to a person with blindness, who was denied reservation on the ground that only one IAS post is allotted to persons with disabilities. The Court upheld the decision of the Delhi High Court which ordered the Government to offer the person a post in line with the reservation provision of the 1995 Disabilities Act.
Edited paragraphs of the judgment are provided hereunder.
Appellants: Govt. of India through Secretary and Ors. Vs. Respondent: Ravi Prakash Gupta and Ors. , MANU/SC/0445/2010.
Facts of the Case
“1. The Government of India, through the Secretary, Ministry of Personnel & Public Grievances, Department of Personnel and Training and through the Secretary, Ministry of Social Justice and Empowerment, has filed this Special Leave Petition against the judgment and order dated 25th February, 2009, passed by the Delhi High Court in Writ Petition (Civil) No. 5429 of 2008, allowing the Writ Petition and setting aside the order dated 7th April, 2008, passed by the Central Administrative Tribunal, Principal Bench, New Delhi, in O.A. No. 1397 of 2007, filed by the Respondent No. 1 herein, and allowing the reliefs prayed for therein.
2. The Respondent No. 1 is a visually handicapped person who suffers from 100% blindness. He appeared in the Civil Services Examination conducted by the Union Public Service Commission in the year 2006. After clearing the preliminary examination, the Respondent No. 1 appeared for the main examination in October, 2006 and was declared successful and was, thereafter, called for a personality test scheduled for 1st May, 2007. Pursuant to such interview, the names of 474 candidates who were selected were released on 14th May, 2007. In the said list, the name of one other visually impaired candidate also figured. The Respondent No. 1 was at serial No. 5 of the merit list prepared for visually handicapped candidates, who had been declared successful in the examination. According to the Respondent No. 1, although there were more than 5 vacancies available in the visually handicapped category, only one post was offered under the said category and he was, therefore, not given appointment despite the vacancies available.
3. Being aggrieved by the manner in which selections were made for appointment in the visually handicapped category, the Respondent No. 1 filed a Writ Petition, being Writ Petition (Civil) No. 5338 of 2007, before the Delhi High Court. The same was subsequently withdrawn since it was the Central Administrative Tribunal only which had jurisdiction to entertain such matters at the first instance. The Respondent No. 1, accordingly, withdrew the Writ Petition, with liberty to approach the Central Administrative Tribunal. Thereafter, he filed an application under Section 19 of the Administrative Tribunals Act, 1985, which was registered as O.A. No. 1397 of 2007, staking his claim for appointment under the reservation of vacancies for disabled categories provided for under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection, Rights and Full Participation) Act, 1995, hereinafter referred to as `the Disabilities Act, 1995′. The basic contention of the Respondent No. 1 was that since the aforesaid Act came into force in 1996 providing a statutory mandate for reservation of 3% of the posts available for persons suffering from different kinds of disabilities enumerated in Section 33 of the Disabilities Act, 1995, such reservation ought to have been in force with effect from the date on which the Act came into force. According to the Respondent No. 1, if the vacancies were to be considered from the year 1996, then instead of one vacancy being declared for the year in question, there should have been at least 7 vacancies from the reserved categories of disabilities which were interchangeable. It was, therefore, the case of the Respondent No. 1 that having regard to the number of appointments made with regard to the disabled categories reserved under Section 33 of the Disabilities Act, 1995, since the Act came into force, there were at least posts which could be filled up in the year 2006. However, in that year only one post from this category had been filled. It was, therefore, the case of the Respondent No. 1 that being at serial No. 5 of the list of successful candidates amongst the physically impaired candidates, there were sufficient number of vacancies in which he could have been appointed and that the authorities had acted contrary to the provisions of the above Act upon the faulty reasoning that the vacancies in the reserved posts could not be declared, without first identifying the same for the purposes of Sections 32 and 33 of the Disabilities Act, 1995.
4. The case of the Respondent No. 1 having been negated by the Tribunal, the Respondent No. 1 as indicated hereinbefore, moved the High Court and the High Court, upon accepting the Respondent No. 1’s case, set aside the order of the Central Administrative Tribunal dated 7th April, 2008, and allowed the Respondent No. 1’s O.A. No. 1397 of 2007 filed before the Tribunal. While allowing the said application, the High Court, upon observing that a clear vacancy was available to which the Respondent No. 1 could be accommodated on the basis of his position in the merit list, issued a mandamus to the Respondent No. 1 to offer him an appointment to one of the reserved posts by issuing an appropriate appointment letter, within six weeks from the date of the order. Certain consequential orders were also passed together with cost of Rs. 25,000/- to be paid by the Petitioner herein.”
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Decision of the Court
“13. We have examined the matter with great care having regard to the nature of the issues involved in relation to the intention of the legislature to provide for integration of persons with disabilities into the social main stream and to lay down a strategy for comprehensive development and programmes and services and equalization of opportunities for persons with disabilities and for their education, training, employment and rehabilitation amongst other responsibilities. We have considered the matter from the said angle to ensure that the object of the Disabilities Act, 1995, which is to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific Region, is fulfilled.
14. That the Respondent No. 1 is eligible for appointment in the Civil Services after having been declared successful and having been placed at serial No. 5 in the disabled category of visually impaired candidates, cannot be denied. The only question which is relevant for our purpose is whether on account of the failure of the Petitioners to identify posts for persons falling within the ambit of Section 33 of the Disabilities Act, 1995, the Respondent No. 1 should be deprived of the benefit of his selection purportedly on the ground that there were no available vacancies in the said category. The other question which is connected with the first question and which also requires our consideration is whether the reservation provided for in Section 33 of the Disabilities Act, 1995, was dependent on identification of posts suitable for appointment in such categories, as has been sought to be contended on behalf of the Government of India in the instant case.
15. Although, the Delhi High Court has dealt with the aforesaid questions, we wish to add a few observations of our own in regard to the objects which the legislature intended to achieve by enacting the aforesaid Act. The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Grade `A’ and `B’ posts in the I.A.S. was undertaken after the year 2005 is not of much substance. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Grade `A’, `B’, `C’ and `D’ posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said Section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.
16. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment (emphasis added). For the sake of reference, Sections 32 and 33 of the Disabilities Act, 1995, are reproduced hereinbelow:
32. Identification of posts which can be reserved for persons with disabilities.- Appropriate Governments shall –
(a) Identify posts, in the establishments, which can be reserved for the persons with disability;
(b) At periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.
33. Reservation of posts.- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:
Provided, that the appropriate Government may, having regard to the type of work carried on in any department or establishment by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
17. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.
18. The various decisions cited by A. Sumathi, learned Advocate for the first intervenor, Shri A.V. Prema Nath, are not of assistance in the facts of this case, which depends on its own facts and interpretation of Sections 32 and 33 of the Disabilities Act, 1995.
19. We, therefore, see no reason to interfere with the judgment of the High Court impugned in the Special Leave Petition which is, accordingly, dismissed with costs. All interim orders are vacated. The petitioners are given eight weeks’ time from today to give effect to the directions of the High Court. “
