Delhi High Court
Ravi Kumar Arora vs Union Of India (UOI) And Anr. on 15 April, 2004
Equivalent citations: 111 (2004) DLT 126, 2004 (3) SLJ 486 Delhi
Author: S K Kaul
Bench: S K Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The ingenuity of bureaucratic system can set at naught implementation of the best-intended legislations. Judicial proceedings, which resulted in the legislation of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ( hereinafter to be referred to as, 'the said Act' ) are sought to be negated by the ingenuous method of forming one committee after another to identify the posts for the benefit of the persons with disability. The mandate of the Act, which came into force on 07.02.1996, is, thus, violated with impunity on the ground that such posts have not been identified for now almost eight years! Persons like the petitioner are, thus, told that they must wait till these committees identify the posts or till deluge, whichever may be later.
2. It is no answer to the persons with disability to be told that the Government is still not equipped and ready with the identified posts. They have waited enough and as Gabrielle Mistral said, " Right now is the time, his bones are being formed, his blood is being made and his senses are being developed ... to him, we cannot answer 'tomorrow'. His name is 'today'."
3.In order to appreciate the contours of the disputes in the present case, it is necessary to go into the history of the legislation. An insight into this can be found even from the Statement of Objects and Reasons of the said Act. In December, 1992, a meeting to launch the Asian and Pacific Decade of Disabled Person 1993-2002 was convened by the Economic and Social Commission for Asian and Pacific Region in Beijing. This resulted in adoption of the Proclamation on the full participation and equality of people with disabilities in the Asia and Pacific Region. India was a signatory to the said Proclamation.
4.The issue of providing friendly environment to persons with disability soon found part of the judicial pronouncements by the Hon'ble Supreme Court in National Federation of Blind v. Union Public Service Commission & Ors., . The judgment gave the right to visually handicapped persons to compete on equal footing for job opportunities and the Government of India and Union Public Service Commission ( in short, 'UPSC' ) were directed to permit blind and partially blind eligible candidates to compete and write the civil services examination in Braille-script or with the help of scribe. The matter did not rest at this since further directions were issued to the Government of India to decide the question of providing preference / reservation to the visually handicapped persons in Group 'A' and 'B' posts in the Government and public sector undertakings expeditiously. The Supreme Court noted that the visually handicapped constitute the significant section of our society and as such it is necessary to encourage their participation in every walk of life. Some reservation had been provided by the Central Government for vacancies in Group 'C' and 'D' posts, but in order to consider the growing demand from the visually handicapped persons, the Ministry of Welfare, Government of India had directed Standing Committee for identification of jobs in various Ministries / Departments for such persons by an order dated 30.12.1985. The report was submitted by the Committee on October 31, 1986. The Committee prepared a comprehensive list of 416 categories in Group 'A' and 'B' posts. An office memorandum was issued on 25.11.1986 by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training ( in short, 'DOPT' ) providing for preference to be given to the handicapped persons for these posts. This memorandum, however, remained on paper and even when the matter in National Federation of Blind's case (supra) was argued, it was pointed out that this office memorandum for 7 years had remained unimplemented. It is of importance to mention that the Committee had specified that the visually handicapped ( blind and partially blind ) are suitable for appointment for certain categories of Group 'A' and 'B' posts, which are mentioned in para 6 of the judgment. Towards the conclusion of the judgment, there were certain meaningful directions issued by the Supreme Court and it is best to set out the same by reproducing the paragraphs :-
"12. The list of Category 'A' and 'B' posts, identified as suitable for the visually handicapped by the committee, includes number of posts which are filled as a result of the civil services examinations. When there are posts to which blind and partially blind can be appointed, we see no ground to deprive them of their right to compete for those posts along with other candidates belonging to general category.
13. Mr. V.K. Cherian, Under Secretary to Government of India, Ministry of Personnel in his affidavit dated March 10, 1992 filed before this Court has stated as under :-
" If there were Group 'A' and 'B' jobs, which could be filled up by the blind, the same should also be identified. Once the jobs were identified, they could be filled up from among the blind and also other handicapped persons such as deaf and orthopaedically handicapped ... Going by the report of the committee and the posts identified by it, the Union Public Service Commission made the observation that the posts identified as suitable to be held by the physically handicapped persons, particularly those identified for the blind are not such which are required to be filled on the basis of competitive examination conducted by the Commission."
The observations of the Union Public Service Commission as projected by Mr. V.K. Cherian in his above-quoted affidavit do not seem to be correct. After going through the list of the posts identified as suitable for visually handicapped (blind and partially blind) it is obvious that there are number of posts which are required to be filled through the civil services examination and other competitive examinations conducted by the Commission Group 'A' and 'B' posts in the category of Administrative Officers (Secretarial - Senior) and Administrative Officer (Secretarial - Junior) are necessarily to be filed as a result of civil services examination by the Union Public Service Commission. If some of the posts in the India Administrative Service and other Allied Services, as identified by the committee, can be filed from amongst the visually handicapped persons then we see no reason why they should not be permitted to sit and write the civil services examination. We make it clear that once recruited to the lowest level of the service the visually handicapped persons shall not be entitled to claim promotion to the higher posts in the service irrespective of the physical requirements of the jobs. If in the hierarchy of promotional posts it is found by the Government that a particular post is not suitable for the visually handicapped person he shall not have any right to claim the said post.
14. In the light of the above discussion we partly allow the writ petition and direct the Government of India and the Union Public Service Commission to permit the visually handicapped (blind and partially blind) eligible candidates to compete and write the civil services examination which is ordinarily held yearly by the Union Public Service Commission. We further direct that they shall be permitted to write the examination in Braille-script or with the help of a Scribe. There shall be no orders as to costs."
5. The aforesaid observations were a precursor for the enactment of the said Act in 1995, though foundation for the same was laid earlier in 1992 as stated aforesaid. The issue of identification of posts also arose in the year 1995 before the Act coming into force in Nandkumar Narayanrao Ghodmare v. State of Maharashtra & Ors., . The petitioner therein was successful in the examination and was selected to the post of Agricultural Officer Class - II, but was not appointed because of colour blindness. It was found that there were only five posts, which required perfect vision and the Government was directed to consider the case of the petitioner therein for appointment to any post other than the five posts.
6. The Statement of Objects and Reasons of the said Act provide that a suitable legislation was necessary to provide for the following :-
"(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream."
7. So much for the background of the legislation. Now to the facts of the present case.
8.The petitioner has been working with the Ministry of Health, Government of India in Group 'B' (non-Gazetted) post since 1998. The petitioner was appointed to the post after having qualified under the General category and has been working without any impediment or any aid while performing the duties of the said post. Prior to the petitioner being appointed to the said post, the petitioner worked as an Income-tax Inspector, CBDT, Ministry of Finance after qualifying in the Staff Selection Exam with 13th rank under the General category. The petitioner had also qualified in the Uttar Pradesh State Civil Services Examination for the post of a Naib Tehsildar / Administrative Officer under the General category.
9. In the year 2000, the petitioner qualified in this written examination for the Central Civil Services (Mains) Examination, 2000 conducted by respondent No. 2 UPSC and even went through the interview, but was not successful. At the time of the interview, the petitioner also underwent a medical examination conducted by the Medical Board constituted by the UPSC, but was never informed that he suffered from any physical handicapped of low vision. The petitioner was, however, successful in the next year and in May, 2002 was declared as a successful / qualified candidate with a rank of 325 having obtained 1184 marks and on 28.05.2002 received intimation for joining the foundation course. The specific service / post was, however, not allotted to the petitioner, which was to be subsequently done on the basis of his rank in the merit list, eligibility, preference for service given by the petitioner. In order to improve his ranking, the petitioner had appeared in the Preliminary Examinations even for the year 2002 on 19.05.2002 in which he qualified subsequently.
10. The petitioner had to undergo a second medical examination conducted by the Medical Board for the CSE, 2001 and was informed on 12.07.2002 that he was disqualified on account of substandard vision. The petitioner immediately represented against the same on 31.07.2002 and thereafter requested that in view of the stand of the respondents, the petitioner be treated as a disabled person and be accordingly appointed against the suitable vacancy / post, which was required to be identified under the provisions of the said Act. The relevant extract of the said letter is as under :-
"In response to para 3 of your letter - I do agree with the findings of the medical board that my vision is not normal. I am myopic patient since birth. My vision in both eyes is 6/60. Only after receiving this communication from DOPT, I came to know that with this much of vision I fall in the category of disabled.
In this regard I would like to bring the fact in your notice that visually disabled persons are eligible to appear in civil services examination and they are getting some seats reserved for them. Since I am also a visually disabled person and otherwise I am eligible to get selected through disabled category, I request you to kindly consider my candidature against the available seats reserved for disabled., if I am otherwise eligible for selection in that quota.
I am enclosing the medical certificate in support of my claim against the disable quota. I hope your good-self will consider my request sympathetically and will oblige me."
The petitioner enclosed a certificate dated 26.07.2002 from the Office of the Medical Superintendent, Safdarjung Hospital to the following effect:-
"CERTIFICATE Certified that Shri Ravi Kumar Arora, 28 years Male, Eye O.P.D. No.12839/02, has High Myopia Both Eyes. His vision is 6/60 both Eyes. He has visually handicapped of 40% (FORTY PERCENT)."
11.Since the petitioner had cleared the Preliminary Examination and was entitled to appear for the Mains Examination of 2002, the petitioner requested respondent No. 2 UPSC in writing that he may be treated as a disabled person with visually handicapped and be permitted to write the Mains Examination as such. The contents of the said request are extracted as under :-
"I , Ravi Kumar Arora, appeared in Civil Services (Preliminary) Examination-2002 as a candidate belonging to non-disabled category. I have also finally qualified in CSE-2001 and ranked - 325 as non-disabled candidate. But in due course DOPT has informed me that you are medically unfit for all services due to sub standard vision. When I contacted DOPT, they said that you could be considered as visually handicapped candidate.
Sir, I am a myopic person since birth. My vision in both eyes is 6/60. Only after receiving the above communication from DOPT, I came to know that with this much of vision I fall in the category of visually challenged persons.
Sir, as I have already appeared in C.S.(P) Examination-2002 and done well in the exam. Hopefully I will get through. You are therefore requested to change my candidature from non-disabled to disabled category and if I qualify for mains 2002, kindly allow me to appear in main 02 as visually handicapped candidate. Since, I am leading normal life despite of my poor vision, I do not need the help of scribe for any mains examination."
12.The petitioner made a further request vide letter dated 09.08.2002 to the Ministry of Personnel in the following terms :-
"Subject : Civil Services Examination-2001-Change of Category from Non-disabled to disabled.
Sir, I, Ravi Kumar Arora, have finally qualified in CSE-2001 and ranked-325 as non-disabled. But in due course DOPT has informed me that I am medically unfit for all services due to Sub standard Vision.
Sir, I am a myopic person since birth. My vision in both eyes is 6/60. Only after receiving the above communication from DOPT, I came to know that with this much of vision I fall in the category of visually challenged persons.
In this regard I would like to bring the fact in your notice that visually disabled persons are eligible to appear in civil services examination and they are getting some seats reserved for them. Since I am also a visually disabled person and otherwise I am eligible to get selected through disabled category, I request you to kindly consider my candidature against the available seats reserved for disabled. I would like to bring in your kind notice that I have already represented my request to concerned Section in this regard (copy of the same is enclosed for your ready reference).
I hope your good-self will consider my request sympathetically and will oblige me."
13.The request of the petitioner for being accommodated in the handicapped category for the Examination of 2001, the result of which was declared in 2002, was, however, rejected in the following terms :-
"I am directed to refer to your letter dated the 9th August, 2002 on the above mentioned subject and to say that a candidate was required to indicate whether he is a physically handicapped candidate or not in column 23 of the application form for the Civil Services Examination, 2001. In the said column you have mentioned that you are not a physically handicapped candidate. It is further mentioned that para 6 of the Notice issued by the Union Public Service Commission clearly states that no correspondence will be entertained from candidates to change any of the entries made in the application from. In view of this, it is regretted that your request cannot be acceded to."
14.While on the one hand, the request of the petitioner for being treated as a handicapped person was rejected in respect of the Examination held in 2001, the request made by the petitioner vide letter dated 31.07.2002 for the Mains Examination to be held in 2002 was rejected by the letter dated 17.09.2002 on the ground that the concession admissible to blind candidates was not admissible to persons suffering from Myopia. The contents of the said letter are as under :-
"Subject: Civil Service (Main) Examination ,2002 Sir, With reference to your application for above captioned examination and your letter dated 31.07.2002 requesting the Commission to treat you as a visually handicapped candidate, I am to say that the medical Certificate submitted by you in support of your claim is not in the prescribed proforma. Your attention is also invited to Note (4) under Appendix - I, Section-II (B) of the Rules of this examination, a coy of which was supplied to you along with the Detailed Application Form, which reads:
NOTE (4): The concession admissible to blind candidate shall not be admissible to those suffering from Myopia".
In the light of above you may like to reconsider your request and thereafter submit fresh visually handicapped certificate in the proper prescribed proforma. (Copy of format enclosed)."
15.The petitioner submitted a fresh visually handicapped certificate in the prescribed proforma duly certified by the Doctor from Safdarjung Hospital under the cover of the letter dated 25.09.2002. But this request was also rejected vide letter dated 04.10.2002 in the following terms :-
" With reference to your candidature for the above mentioned examination and your letter dated 25.09.2002 I am directed to say that according to the Note (4) of the rules of the examination sent to you along with the detailed Application Form, the concession admissible to blind candidate is not admissible to those suffering from Myopia. Therefore, handicapped candidate cannot be acceded to."
16.The result of the aforesaid communication was that the petitioner was neither being treated under the handicapped category as a disabled candidate nor as a normal candidate and the petitioner addressed a letter dated 09.10.2002 to the UPSC as under :-
"In reference to your above letter, I would like to request you to allow me to appear in the CS(M) Exam-2002, even if previously, since the main Exam-02 is not for away and I have little time to represent my case.
Sir, it is hocking and surprising for me that I am neither a normal candidate (as per DOPT) nor a disable candidate (as per UPSC).
However, again I am requesting you to permit me to appear in the CS(M) Exam-2002."
17.The petitioner faced with the aforesaid position filed the present writ petition claiming a dual relief to write the Examination of 2002 in the category of partially blind / low vision and in the alternative for quashing the letter dated 12.07.2002 declaring the petitioner as unfit for selection on the ground of low vision. The petitioner was permitted in terms of the interim orders dated 22.10.2002 to appear in the Examination to be held for the said year as the visually challenged person. At the time of passing the interim order, the Court took notice of the Gazette notification dated 15.12.2001 specifying the category of 40% visually disability as category I. It may be noticed that the petitioner suffers from the visually handicap of 40%. In the subsequent order dated 25.04.2003, it is noticed that though the petitioner had appeared in the category of disabled persons, he unfortunately could not qualify the Mains Examination and, thus, the petitioner claimed the right to be appointed to the post meant for disabled persons for the year 2001.
18.The Examination for which the petitioner appeared in 2002 in the category of a visually challenged person was actually illusionary as it transpired subsequently that the petitioner did not qualify on account of the fact that there were, in fact, no quota which had been carved out for the said category. The result was that while the petitioner was successful for the Examination of 2001 under the General category, he was denied appointment on the ground of visually impairment while, on the other hand, for the Examination held in 2002 for which he appeared as a visually challenged candidate, there were no basis identified or quota carved out.
19.In order to assist the Court, by subsequent orders, the Commissioner of Disabilities appointed under the provisions of the said Act was also issued a notice to effectively participate in the proceedings.
20.The pleadings filed in this petition have brought to light some shocking facts. In response to an unstarred question in Parliament answered on 05.08.2003 enquiring into the details of visually impaired candidates selected / recommended on the basis of the CSE during the last four years, the DOPT answered that no candidate applying as a visually impaired candidate had been recommended during the said period of last four years. On further information being sought by this Court, it has been admitted by learned counsel for the respondents that out of 26 services of Group 'A' and 'B', no post had been identified for a visually impaired candidate during this period of time. In fact for the year 2001, six posts had been identified under the said Act - two each for the Indian Information Services Group 'A'; Indian Post and Telegraph, Accounts and Finance Services Group 'A'; and Armed Forces Headquarters, Civil Services Group 'B', but even these were not for a visually impaired candidate.
21.Learned counsel for the Chief Commissioner for Persons with Disabilities brought to notice of this Court that proceedings had been initiated by one Mr. Umesh Puranik under the said Act, which was registered as Case No.1247 of 2001. The grievance of Mr. Puranik was that for the conduct of the CSE, 2001, neither advertisement nor the rules for the Examination had prescribed as to which post in the 26 services were suitable for physically disabled persons and required the same to be published. This case was disposed of on 18.08.2003 and some interesting facts, which emerged during the said proceedings, are relevant for the present controversy. The UPSC washed its hands off the issue saying that they only conduct the examination strictly in accordance with the rules framed and notified by the DOPT, Government of India as notified in the Gazette of India. The Narsimhan Committee in 1996 had given its report suggesting that all Government Ministries / Departments should identify the posts for persons with disabilities, but none of the Ministries / Departments had done so till the Examination for the year 2001. For the Examination of 2001, only three services had identified the six posts referred to above. The said Ministry also expressed his helplessness since the relevant Ministries / Departments are to place indents along with format and the concerned Cadre Controlling Authorities did not provide information. In this behalf, reference was made to the office memorandum of 10.07.2003 of the DOPT referring to the proceedings in the case of Mr. Umesh Puranik. The office memorandum requests the various Ministries to specify the post(s) / vacancy(ies), if any, reserved for the physically handicapped persons and a special mention has been made whether any post is reserved for person(s) suffering from blindness or low vision. Information was also sought that in case no reservation for physically handicapped persons for that particular year is there, whether some posts had been identified for such persons and if so, the category for which the post(s) had been identified along with their physical / functional requirements.
22.The Ministry of Social Justice and Empowerment vide a notification dated 31.05.2001 published in the Gazette of India No. 178 dated 30.06.2001 had identified the posts in Group 'A', 'B', 'C' and 'D' for persons with disabilities based on the recommendations of the Expert Committee constituted for the purpose. Almost all the administrative jobs in Group 'A' and 'B' had been identified as suitable for persons with disabilities in the said notification, though the services as such had not been mentioned. The Chief Commissioner, thus, noted that it could either be the concerned Cadre Controlling Authority or an independent Expert Committee, which could decide whether a particular service is suitable for persons with disabilities or not. Thus, it noted that since majority of the posts are to be held by officers of different services basically having administrative nature of work, most of them would be suitable for such persons with disabilities. A direction was issued for all the Cadre Controlling Authorities to take a view and intimate the vacancy position to UPSC for Civil Service Examination. In case the Cadre Controlling Authority considers the service with which it is concerned is not suitable for persons with any kind of disability, exemption would have to be obtained under Section 33 of the said Act and the DOPT was directed to monitor and ensure that the concerned Cadre Controlling Authorities complete the identification before November, 2003 and reservation of vacancies are made in the notification for CSE of 2004.
23.The aforesaid direction, however, resulted in another order being passed on 27.08.2003 by the Ministry of Social Justice and Empowerment for identifying the Group 'A' and 'B' Services where posts can be reserved. It was stated in the said office order that no post in Group 'A' and 'B' Services of the Government of India had yet been reserved for persons with disability and the Ministry being the 'Appropriate Government' as per the meaning assigned to clause under Section 2(i) of the said Act, it was deemed expedient to conduct a review with all administrative departments to identify the services in which reservation for persons with disabilities can be given.
24.In order to appreciate the disability, which the petitioner is stated to be suffering, it would be useful to refer to some of the provisions of the said Act. Section 2(i) defines 'disability' to mean blindness, low vision, etc. Thus, low vision is specifically stipulated as a disability. A person with low vision is defined under Section 2(u) as under :-
"2(u) - "person with low vision" means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable o using vision for the planning or execution of a task with appropriate assistive device."
A person with disability is defined under Section 2(t) of the said Act as under :-
"2(t) - " person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority."
The effect of reading of the aforesaid provisions is that the petitioner, who suffers from low vision of 40%, would qualify as a person with disability of low vision.
25.Section 32 of the said Act provides for identification of posts and Section 33 of the said Act provides for reservation of the posts. Section 36 thereof provides that in case a vacancy is not filled up due to non-availability of a suitable person with disability, the vacancy has to be carried forward in the succeeding recruitment year. The relevant provisions are as under :-
" 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 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 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."
" 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 ay 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 a 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."
26.It is also apparent from reading of the aforesaid provisions that if any particular service or establishment is to be exempted from the provisions of the said Act, the appropriate Government can do so by notification. It is not disputed that no such notification has been issued. Surprisingly, it is stated that the Indian Administrative Services ( in short, 'IAS' ) sought exemption from application of the said Act, but no notification has been issued for the said purpose.
27.It is difficult to fathom how administrative jobs including the IAS can be exempted from granting reservation under the said Act. It is possible the reflection of the attitude of a 'BURRA SAHEB' from the period of the British Raj.
28.The issue of 3% reservation in Group 'A' Services also forms part of the Annual Report for 2000-2001 of the Office of the Chief Commissioner for Persons with Disabilities. The problem was specified in para 8 of the report as under :-
" 8. 3% RESERVATION IN GROUP 'A' CIVIL SERVICES In employment notice no. 04/2000 dated 25.12.99, Union Public Service Commission advertised for Group 'A' posts belonging to 25 all India services. There was a clear reference to the provision of reservation for SC, ST and other backward classes. However, the statutory 3% reservation in jobs was not created for. Department of Personnel & Training (DOPT) is a nodal department through which the establishments in Government of India route their requisitions for filling up vacancies. Subsequently, the UPSC conducts recruitment. The recruitment rules for various services are framed taking due consideration of the Constitutional, legal and administrative provisions. There were two main issues involved in the present case:-
Whether as per Section 33 of the Disabilities Act, the provision of 3% reservation would be applicable on all the 25 services and the posts on which the recruitment exercise by UPSC was being initiated.
Whether as per Section 32 of the Persons with Disabilities Act, 1995, the posts which were identified as suitable to be held by one or the other category of persons with disabilities by the appropriate government since the reservation as per Section 33 has to be effected on the identified posts for disabled persons in accordance with the provisions of Section 32.
The respondent (DOPT) in its written reply dated 11.12.2000 stated that " reservation for persons with disabilities in Group A & B posts among the services recruitment to which is made through Civil Services Examinations is applicable only in respect of posts which have been identified as such by the respective cadre controlling authorities. As none of the post among the services included in the scheme of the civil services examinations as intimated by the concerned cadre controlling authorities, has been identified as suitable for being manned by a handicapped person, hence it has not been possible to extend the reservation for handicapped persons to the civil services examination 2000 notice for which has been issued on 25.12.1999"
The stand taken by respondent was examined and found that as per Section 32. it is the appropriate Government who is obliged to update and identify suitable posts for persons with disabilities. Inter departmental committee for this purpose has been constituted under the Chairmanship of Additional Secretary, Ministry of Social Justice and Empowerment. This committee in its report mentioned clearly that " the establishments covered under the Persons with Disabilities Act 1995 will have the discretion to identify post in addition to the posts already identified by the appropriate Government. However, no establishment on its own discretion can exclude any post out of the purview of identified post for effecting reservation under Section 33 of the Act. In case any establishment feels that it required exemption from filling up a vacancy against an identified post by the appropriate Government the establishment under 33 of PWD Act, 1995 can approach inter departmental committee constituted for the purpose to look into the matter regarding exemption from Section 33 of the PWD Act. Other than this no authority has the jurisdiction to accord exemption from filling up a vacancy against an identified post for persons with disabilities.
Similarly, the Expert Committee of 1986 explicitly mentioned that the posts identified by them are illustrative and not exhaustive. It is pertinent to recognize that the respondent itself was instrumental in revalidating those Group A and B posts which were identified by the Government for persons with disabilities in 1986. In the office memorandum no. 36035/14/98-Estt.(Res.) dated 28.8.1988, the respondent stated that " the existing identification done in the year 1986 shall remain valid, till the same is modified by the Government on the recommendation of the Expert Committee."
The perusal of the revalidated list of identified posts reveal that a number of posts belonging to various all India services were already found suitable for some or the other category of disabled. A table showing posts and the suitability of the disabled is given below :-
Recruiting Ministry / Department Name of the service(s) Name of post at entry point Post identified / category of disabled Department of Telecommunication Indian P&T Accounts & Finance Service Assistant Chief Accounts Officers Assistant Chief Accounts Officer - D, PD, BL, OA, OL, BH Ministry of defense (Finance Division) Indian defense Accounts Service Assistant Chief Accounts Officers Assistant Chief Accounts Officer - D, PD, BL, OA, OL, BH Railway Board Indian Railway Account Service Assistant Chief Accounts Officers Assistant Chief Accounts Officer - D, PD, BL, OA, OL, BH Department of Expenditure Indian Civil Accounts Service Assistant Chief Accounts Officers Assistant Chief Accounts Officer - D, PD, BL, OA, OL, BH D.O.P.T.
Central Secretariat Service Section Officer Administrative Officer Assistant Administrative Officer and others - OL, BLA, OA, PD, PB, B Ministry of Information and Broadcasting Indian Information Service Information Officer, News Editor Information Officer - PB, BO, A, OL and Assistant Information Officer - PB, BO, A, OL News Editor - PD, BLA, OL, OA, PB Ministry of Railways Indian Railway Personnel Service Personnel Officer Personnel Officers - OL, BL, OA, B, PB In view of the fact that as per Section 32 a number of posts are to be filled through Civil Services Examination for Government of India establishments were already featuring on the revalidated list of suitable jobs for persons with disabilities, applicability of the provision of 3% reservation for the disabled as per Section 33 got established. It become abundantly clear that it is the appropriate government as notified by the DOPT in the shape of inter departmental expert committee is the one who undertake the job of identification of posts in Government of India though the establishments on their own initiative can identify posts in addition to the posts already identified and included in the list of identified jobs. Therefore, the role of cadre controlling authorities in determining the suitability of posts already identified and notified by the Government for effecting reservation on 3% vacancies for the disabled could not be over-emphasized beyond the statutory provisions. In the light of the over circumstances and facts the Chief Commissioner, Disabilities recommended Secretary, DOPT to advise all cadre controlling authorities, requisitioning Ministries, Departments, who participate in the Civil Services Examination to :-
(a) Cadre 3% reservation as per Section 33 of Disabilities Act 1995; and
(b) Have the backlog calculated w.e.f. 1.2.1995 with a view to get it cleared in the recruitment exercise."
29.The violation of the mandate as contained under Section 33 of the said Act for making reservation has been emphasized by the petitioner in the additional affidavit dated 10.08.2003. It has been stated therein that the petitioner had obtained 940 marks for the Examination held in the year 2002 while the cut-off for the General category was 979. However, for the said year, as noted above, no reservation was made for a person with blind / low vision in violation of the mandate of Section 33 of the said Act. It was, thus, not a case where somebody, who was senior in merit to the petitioner, was appointed. In fact from 1998 onwards, for which there is date available, not a single person has been appointed from the blind / low vision category.
30.The appointment of a fresh Committee in the year 2003 also appears to be a ruse since an earlier order dated 02.07.1999 of the Ministry of Social Justice and Empowerment had constituted an Expert Committee to identify / review posts in Category 'A', 'B', 'C' and 'D' similarly. The Committee had made its recommendations including identification of posts for visually handicapped. This material has been placed on record by the petitioner. There is no answer as to why the recommendation of this Committee has not been implemented and now another Committee has been formed in the year 2003. In my considered view, the object is clear - to see that the said Act remains only a paper enactment.
31.The material placed on record shows that there were 417 posts in the year 2001 and as per the mandate of Section 33 of the said Act, at least 4 posts would qualify for reservation under the category of blinds / low vision. However, only 5 posts were filled up from the loco motor category while no post was filled up from the category of blinds / low vision and hearing impairment.
32.The aforesaid attitude of discrimination against persons with disabilities forms part of (2004) 14 'INTERIGHTS' Bulletin, i.e., an International Human Rights Law Centre, which focuses on protection of human rights through legal remedies. It has been observed in the Bulletin that one-tenth of the world population lives with some kind of disability and such persons suffer denial of their basic human rights in one form or the other. It is also observed "in addition to being disabled by institutions, social policies and attitudes, often the very laws intended to protect and uphold our human dignity, undermine the enjoyment of disabled people's rights".
33.The discussion builds up on the violation of human rights angle of such persons and the factum of enactments by certain countries since the adoption ten years ago by the United Nations General Assembly of the Standard Rules for the Equalisation of Opportunities for Persons with Disabilities. These Standard Rules 22 in nos. are divided into three sections dealing with (i) pre-conditions for participation; (ii) target areas for equal participation; and (iii) implementation measures. The forth section describes the monitoring mechanism. Such persons with disabilities are not to be treated as a recipient of some charity, but have a right to be treated on equal footing with other persons. Equal opportunities of employment are an integral part of the Standard Rules adopted by the United Nations.
34.One of the papers in the Bulletin deals with the experience of India and legal protections for person with disabilities authored by Ms. Anuradha Mohit and Mr. Santosh K. Rungta. The concept of equality under Article 14 of the Constitution of India ( in short, 'the Constitution' ) and the mandate against discrimination under Articles 15 and 16 of the Constitution lays the foundation for the equal treatment of persons with disabilities. Article 16 of the Constitution encourages the State to frame laws for reservation of appointments and in this behalf, a reference has been made to judgment in Indra Sawhney & Ors. v. Union of India, (1992) Supp (3) SCC 217, which considered the legality of reservation inter alia in favor of the disabled persons, which was not explicitly covered under Article 16 of the Constitution. The object of Article 16 of the Constitution being to put persons on equal plain, the Act is in furtherance of this object in so far as the persons with disabilities are concerned.
35.In so far as application of the widely accepted principles to the present facts of the case are concerned, the petitioner has stated on affidavit that out of 417 posts for the Examination of 2001 about 405 posts are filled up and further 3 candidates wrote the Examination again for the year 2002 and switched over to a different service in the year 2002. As noted above, no candidate with any visual disability was appointed as even post had not been identified.
36.In so far as the Examination for the year 2002 is concerned, the petitioner was permitted to appear in the category of visually challenged persons. The petitioner was unsuccessful because there was no post reserved in the said category. Learned counsels sought to explain away the letter of the respondents dated 04.10.2002, which stated that the concession admissible to a blind candidate is not admissible to the petitioner, who is suffering from Myopia and, thus, the petitioner cannot be treated as a visually handicapped candidate. The explanation given was that this was in reference to the requirement of providing a scribe. This explanation cannot be accepted. The petitioner in his letter dated 31.07.2002 had clearly stated therein " I do not need the help of scribe for my Mains Examination". The communication dated 17.09.2002 of the respondent was in response to the said letter of 31.07.2002 stating that the concession admissible to a blind candidate was not admissible to those suffering from Myopia and requesting the petitioner to apply in a particular format. The petitioner vide letter dated 25.09.2002 sent the relevant format in response whereto the communication dated 04.10.2002 was addressed to the petitioner. Thus, the respondents clearly took the stand that the petitioner having Myopia could not be treated in the reserved category.
37.The aforesaid explanation is being given by the respondent in view of the undisputed position and the admission of learned counsel for the respondent that the petitioner with a 40% disability would be a candidate, who would be covered under the provisions of the said Act.
38.The lack of success of the petitioner in the 2002 Examination was on account of the absence of any post. However, in my considered view, the same is not of a great significance in view of the fact that the petitioner was admittedly successful in the Examination for the year 2001 in the General category. It was only this disability of vision, which ultimately prevented the petitioner from being appointed to the post.
39.It can by no stretch of imagination be said that, on the one hand, the petitioner is not entitled to any reservation and, on the other hand, he is not eligible to be appointed even as a General candidate. The petitioner has been performing functions during his course of employment with the Government, though not for a Category 'A' post. There is no problem in the petitioner performing the functions in the Ministry of Health where he is employed at present in a Group 'B' post. Prior to that, the petitioner worked as Income-tax Inspector, CBDT.
40.The question of the petitioner applying under the category could have arisen if on any previous occasion, the same would have been treated as an impediment. This was not so for the year 2000 even when the medical test was done. Be that as it may, once it was detected that the petitioner suffered from visual impairment, the case of the petitioner could have been considered under the 1% reserved category.
41.It is no answer to be given by the respondent that the petitioner did not apply under the category of visually impaired person. There was no specific column for the said purpose except a general column for handicapped persons. There was further no post identified or reservation made for such visually impaired persons. The result in the case of the petitioner would have been same, even if the petitioner had applied in the said category as was in the case of 2002 when also no post had been reserved.
42.The petitioner without any aid appeared in the written examination and was successful. The petitioner even appeared before the Experts in the Interview Board and no infirmity was found and he was found meritorious by the said panel. To deny the benefit of appointment to the post would be a travesty of justice. The unfortunate part is that the Committee appointed in terms of order dated 02.07.1999 to identify the posts had identified various posts for even visually impaired persons of Group 'A' and 'B', but even that was not given effect to and the new Committee has been set in the year 2003 only to some how evade the effect of the said Act. It is, however, not necessary for this Court to go into in depth of the larger issue since in the present proceedings one is concerned with the relief to be granted to the petitioner as it is not a public interest litigation. It has been stated at the Bar by learned counsel for the parties that as per the rank of the petitioner, the petitioner would have been entitled to the India Postal Services or possibly a superior Services. I see no reason why the petitioner should not be directed to be appointed to the post as per merit of the petitioner since the respondent has failed to carry out the mandate of the reservation for visually impaired persons of 1% and there is no other candidate over the seniority of the petitioner in the said category. In terms of the total strength, four seats were liable to be reserved for the category to which the petitioner belongs. The process of once again the respondents trying to identify posts, which they failed to do despite eight years having elapsed from the said Act coming into force, cannot be awaited for the petitioner to be appointed to the post. The petitioner has already suffered enough.
43.I am, thus, of the considered view that the petitioner is entitled to be appointed to a post in the category 'A' Services as per his merit and seniority based on the rank obtained by the petitioner for the Examination of 2001 and the petitioner be so appointed to the Indian Postal Services or an equivalent Service. The petitioner is also liable to be treated as having joined in service along with his batch-mates for purposes of determination of his seniority, monetary emoluments and promotions. However, in so far the back wages and other monetary benefits for the past are concerned, since the petitioner has been working in a Group 'B' post, the petitioner would be entitled to all these monetary benefits for the past also less the amount received by the petitioner in the course of his employment. The arbitrariness or the conduct of the respondents is such that it cannot be said that the petitioner should not be entitled to these monetary benefits not having worked on the post. If the petitioner has not so worked, it is the direct result of the failure of the respondents to carry out the mandate of the Parliament as envisaged under the said Act and the petitioner cannot be denied the benefit of the same.
44. A writ of mandamus is issued directing the petitioner to be appointed to the post in pursuance to the Examination of Civil Services, 2001 with all the consequential benefits of merit, seniority, promotion and monetary emoluments for the past and future as mentioned aforesaid and the needful be done by the respondents within a maximum period of one month from the date of this order.
45.The petitioner shall also be entitled to costs of the present proceedings quantified at Rs.20,000/- to be borne by respondent No. 1.
CITATIONS in above order
The Displaced Persons (Claims) Supplementary Act, 1954
Article 16 in The Constitution Of India 1949
Article 14 in The Constitution Of India 1949
Indra Sawhney & Ors vs Union Of India & Ors on 8 August, 1991
National Federation Of Blind vs Union Public Service Commission ... on 23 March, 1993
Union Of India & Ors. vs Sh.Ashok Kumar Arora on 26 April, 2011
Ms. Ira Singhal vs Department Of Personnel And ... on 25 February, 2014
Nishant. S. Diwan vs High Court Of Delhi Through ... on 25 March, 2014
Ashwani Gupta vs Government Of India And Ors. on 7 January, 2005
Ms. Anubha Bhargava vs Union Of India (Uoi) And Ors. on 4 December, 2007
