Showing posts with label Civil Services for disabled. Show all posts
Showing posts with label Civil Services for disabled. Show all posts

Thursday, March 5, 2015

Delhi HC directs UPSC to distribute vacancies equally [Judgement included)

Dear Colleages,

Please refer to my earlier post titled "Two High Courts direct Extra time, reasonable accommodation & reservation in CSE 2014" whererin writ petition was filed before the Delhi High Court as well as Bombay High Court challenging the constitutional validity of UPSC's Notification Civil Services Examination 2014 on the grounds that it was against the rights of persons with visual impairments granted by the Persons with Disabilities Act 1995. 

While my earlier post contained the judgement of the case filed in Mumbai High Court and an interim order in the case filed in Delhi High Court, this post contains the final order passed in the case before the Delhi High Court bearing  WP (C) No. 3919 of 2014 titled Sambhavana Vs. Union of India and others dated 04 March 2015.

Directions by the Court 

(a) the respondent no.2 UPSC shall find out from the respective Cadre Controlling Authorities the reason for allocating the vacancies in excess of 3% unequally between the three categories aforesaid.

(b) if the Cadre Controlling Authorities are unable to give any valid reason, the vacancies in excess of 3% shall also be equally distributed between the persons with disability of all three categories and the appointments in pursuance to the Employment Notice impugned in the petition shall be made accordingly.

(c) Relief claimed seeking issuance of a direction to the respondents to comply with the Office Order dated 26th February, 2013 supra is concerned, we had in our order dated 19 th August, 2014 held that the guidelines contained therein were issued as per the directions of the Chief Commissioner for Persons with Disabilities who is an Authority appointed under Section 57(1) of the Act and cannot be treated as mere executive instructions and the said guidelines having been issued for effective implementation of the provisions of the Disabilities Act, have statutory force and are bound to be implemented by all Departments and Authorities. No arguments whatsoever were addressed on the said aspect by the learned counsel for the respondents during the hearing of the writ petition and therefore, we hold with respect to the said prayer that the respondent no.2 - UPSC shall abide by the said guidelines for all times to come unless the same are varied in accordance with law.

Tuesday, December 10, 2013

Physically Challenged Versus Logically Challenged

Dear Colleagues,

There is an inherent bias in the executive when it comes to giving equal opportunities to those living with disabilities in employment despite the tall claims on paper by the Government and harshest judgements from the Courts criticizing the executive and the government. Now whether it is born out of age old mis-beliefs, myths and resultant negative attitudes towards the disabled or an utter lack of awareness about the possibilities and potential of those living with disabilities - the result is insurmountable barriers for disabled people on every step of their lives.

A committee of High Court Judges decides that those with vision impairments and those with hearing and speech impairment can not function as Judges (Blind/deaf can't be judges, say govt and HC; PIL questions it), the Babus decide what a person with disabilities is capable of, without even knowing a, b, c of disability! And these decisions are taken in solo without involving those with disabilities or their organisations. 

We recently saw certain candidates with disabilities who passed the UPSC's Civil Services Examination way back in 2007 -08 continue to await allocation of posts! The principles of natural justice particularly in a democratic set up as ours, demand that an opportunity of being heard be given to those affected by the proposed action. This is amazing way of functioning displayed by the Indian bureaucracy where the bureaucrats and not the law decides whom they want to allow in their gang!

Section 32 and the List of Identified Jobs

The List of Identified Jobs for persons with disabilities which had been prepared by the Babus with some experts from field also on the panel has done more harm than good for persons with disabilities of this country.  The list has been used to deserving people out by State governments from several key posts. The successive committees of babus have not allowed the stakeholders to even know what was added or removed in the successive list of jobs published through gazettes. Each time a list of published, the earlier was removed from the website, without even explaining what new post(s) have been added or deleted from the list and the basis for the same! And this business of identified jobs has been in business since 1989 even before the disabilities Act came in to force.

The list doesn't seem to have applicability in all the states and union territories since so many states (read babus) have published their own selective lists of posts (read... unimportant posts) jobs, keeping the posts to the minimum that could be held by  persons with disabilities. Certain states and Ministries have been on an exemption seeking spree under the proviso of Section 33 of the Disabilities Act. For instance the post of Judge has been identified in the Central List whereas states like West Bengal, Kerala, Tamil Nadu and Uttar Pradesh seems to have taken regressive steps by obtaining exemptions of judicial posts from the purview of section 33 (reservation in favour of persons with disabilities particularly against the candidates with visual and hearing and speech disabilities.)  

3% reservation in promotion under Section 33 

Similarly, by twisting the interpretation of section 33, the Babus have for long denied the 3% reservation in promotional posts to employees with disabilities particularly in group A and B posts citing various untenable reasons.  

Now the Bombay High Court has dealt with the issue in a PIL filed by an NGO - National Confederation for Development of Disabled. The petition pointed out that the ratio of percentage of direct IAS to IAS by promotion or election was 67% : 33% in Maharashtra state at present. Thus effectively, out of 100 new posts, 67 were being filled by people who have been directly recruited in the IAS category and 33 posts were filled by state civil service officers.  Thus the reservation in 33% promotional posts was being denied to the disabled officers from State Civil Services (for the impugned executive orders provide for no reservation in promotion in Group A and B posts!).

In a remarkable judgement the Division Bench of Chief Justice Mohit Shah and Justice M S Sanklecha has on 04 December 2013, directed that the rule be applied to the promotion of officers, who were recruited through the disabled quota i.e.  now reservation would be applicable on all the 100 posts.   
The court held that it is clear  that  reservation has  to  be computed with  reference to  total  number of vacancies in the cadre strength and, therefore, no distinction can be made between the posts to be filled in by direct recruitment and by promotion.  Total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination and vacancies to be filled in by promotion. 


Download the above Bombay High Court judgement in PIL No. 106 of 2010  titled National Confederation for Development of Disabled and another versus Union of India and ors.  (PDF 132 KB) or read below:

Manner of computation of reservation under Section 33

The manner of arriving at or computing 3% reservation in various posts has not been spelled out in the Act. and thus in exercise of the powers conferred by sub-sections (1) and (2) of Section 73 of the Act, the government (read babus) used their discretion to spell it out through executive orders (read DoPT Memos) thereby restricting the reservation benefits to the minimum particularly in Gp A and B posts.  

For Eg. Office Memorandum (OM) dated 29.12.2005, issued by the Department of Personnel & Training, inter alia provides a system for ensuring proper implementation of the provisions of the Act for the persons with disabilities, wherein the 3% reservation for the disabled persons was being computed by taking into account the total number of vacancies arising in Group C and D posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. Similarly, all vacancies in promotion quota shall be taken into account while computing reservation in promotion in Group C and Group D posts. 

However, interestingly, when it came to Gp A and B posts, it was specifically restricted to be computed on the basis of vacancies occurring in direct recruitment quota in all the identified Group A posts in the establishment.

Justification to such a restriction given was that since the reservation for Group C and D posts is being calculated on the basis of the vacancies in identified as well as unidentified posts prior to the Act came into existence and in view of the provisions of Section 72 of the Act (Act to be in addition to and not in derogation of any other law), continued in the same way, however, reservation for Group A and B posts is  to be calculated on the basis of the vacancies for identified posts as per the provisions of the Act.

The court thus decided that the modus of computation of reservation on the basis of total number of vacancies (both inclusive of identified and unidentified) in the cadre strength will uniformly apply to Group A, B, C and D and not just Gp C and D). Supreme Court Judgement dated 08 October 2013 in Union of India  Versus National Federation of Blind (Civil Appeal 9096 of 2013) (click on link for judgement).

Accordingly, the DoPT  issued a revision on 03rd December 2013 to its Memo dated 29.12.2005 (click link for a copy)

The way ahead

The tendency of the Government (read Babus) is to find ways to block the entry of the disabled into the mainstream of employment. This undeclared blockade has no direct link with abilities of persons with disabilities and indicates a greater malady that exists in our system. This can only be tackled by a sincere attempt to raise awareness of all government employees from the top order to the lowest about the capabilities of the disabled and also supporting employees with disabilities with reasonable accommodation and equal opportunities to work and prove their worth. At the same time, the executive has to be interpret the benevolent provisions of the Act so as to give effect to the will of the legislature and the mandate of international convention called UN CRPD. 

One out of box idea is to scrap the Identification List  and  the present system of effecting reservation on identified posts. Let all posts be open for persons with disabilities with only condition that each person showcases how he/she will perform the functions of that post. Those competing on merit be not adjusted against reserved vacancies (policy exists but seldom implemented thereby defeating the intent of legislature of minimum 3% reservation). The government on their part must provide reasonable accommodation and an enabling environment to the employees with disabilities. I am sure this will work out and we must give it a try.

Here are some stories on such undeclared blockade and court intervention that recently made headlines in Indian Express and Times of India.

Civils: Centre, state told to implement quota rules for disabled 

Aamir Khan, Indian Express, Mumbai, Thu Dec 05 2013, 11:58 hrs

The Bombay High Court on Wednesday directed the state and Union governments to implement the rules of reservation for differently-abled candidates in civil services. The court also said the rules would apply during promotions.

The court was hearing a PIL filed by the National Confederation for Development of Disabled, stating that the People With Disabilities (PWD) Act was being violated. It sought the implementation of the rule, which provides 3 per cent reservation to disabled people in civil services recruitment. Directing the state and the Union government to implement the rule, the division bench of Chief Justice Mohit Shah and Justice M S Sanklecha directed that the rule be applied to the promotion of officers, who were recruited through the disabled quota.

The petition said the ratio of percentage of direct IAS to IAS by promotion or election was 67%:33% in the state at present. "Therefore, out of 100 new posts, 67 are filled by people who have been directly recruited in the IAS category and 33 posts are filled by state civil service officers. As per the PWD Act, three per cent of the posts in the IAS are reserved for such class of people. Thus, reservation should be applicable to all the 100 posts," the petition stated. It also contended that the quota for PWD had not been filled for 15 years. According to the Constitution, the authorities are under obligation to apply the provisions of the PWD Act. Granting relief to the petitioners, the HC disposed of the petition.

Source: Indian Express

Disabled people clear UPSC, but wait for service allocation

Rema Nagarajan, TNN | Dec 2, 2013, 04.55 AM IST

MUMBAI: Several persons with disabilities (PWDs) who crack one of the toughest exams in the country and get selected for the civil services are routinely rejected with the government claiming there is no suitable service for them. 

Source: Times of India, 02nd Dec 2013
They are good enough to overcome their disability and get selected for the civil services after clearing two levels of exams and the interview, but the Department of Personnel and Training, the allocating authority, rejects them and cancels their candidature.
In the last two years alone, out of 67 such candidates who got selected, 11 are still waiting to be allocated services. Many selected PWDs are allocated lower services  than their ranking merits, on the plea that the nature of their disability prevents them doing the job in most services.

So how do babus sitting in offices decide what candidates with varying levels and kinds of disabilities are capable of? The answer lies in a totally arbitrary list called "list of services identified suitable for physically disabled category along with physical requirements and functional classification" published in the gazette. It lays down what service a successful candidate with disability can get. For instance, under the category of locomotor disability, if the disability affects both hands or arms, you can get into the most sought-after Indian Administrative Service (IAS) but you would not be eligible for any of the other 23 services.

Again, the Delhi Andaman and Nicobar Islands Police Service (DANIPS) is open to those with one leg affected or whose hearing is impaired. However, there is no place for people with these or any other disability in either the Pondicherry Police Service or the Indian Police Service (IPS). How different can the job be in different police services? In an age of economic crime and cybercrime, will the police service be limited to physical fitness or brawn and not brains?

All accounts services, the Indian P&T Accounts & Finance Service, Gr.A, Indian Civil Accounts Service, Gr. A and Indian Railway Accounts Service are open someone with one arm (OA) or one leg (OL) affected or with one arm and one leg affected (OAL) and to those with both legs affected (BL). However the Indian Audit & Accounts Service Gr. A alone is not open to persons with both legs affected. Why is only this accounts service not open to people with both legs affected? Nobody seems to know.

"My disability says both legs affected. But I use crutches and can do all jobs. However, most services are closed to me because some officials who have never met me decided that if both legs are affected, I must be immobile or unable to do most jobs. It is totally unfair. This identification of service has to be done away with. Let them select us, meet us, see what we can do and allocate us services accordingly and by our ranks," says a candidate who cleared the exam earlier but will be appearing again for the civil service exam on Monday, hopeful of getting in again through the 3% quota in all services for PWDs mandated by the Disability Act 1995.

The identification of service ought to be abolished as it is discriminatory under the Disability Act and under international conventions signed by India on ensuring equal rights to the disabled, pointed out yet another PWD. 

Officials in the DoPT did not comment despite several attempts to get their version."Frankly, I am appalled that nine years after this issue was first brought to light, it remains unresolved, that too, against the express orders and directions of the Prime Minister. If the country, the government and the prime minister's office in particular wish to demonstrate their true commitment towards protecting the rights of India's disabled citizens, they ought to resolve this issue once and for all," said Javed Abidi of the National Centre for Promotion of Employment for Disabled People (NCPEDP). He added that in protest against such apathy, NCPEDP will not take part in the "charade" of celebrating World Disability Day on December 3 when "speeches would be delivered, advertisements issued, and some more false promises made".

News Source: Times of India

Wednesday, July 7, 2010

Surpreme Court of India | Govt. of India & Anr. Vs. Ravi Prakash Gupta | SLP (C) 14889 of 2009 | 07 July 2010

 Court: Supreme Court of India

Case No. & Title: SLP (C) 14889 of 2009, titled Govt of India  vs Ravi Prakash Gupta & Anr 

Bench: Altamas Kabir, Cyriac Joseph 

Date of Judgement:  07 July, 2010





Govt. of India (through Secretary & Anr.)                           .. Petitioners


Ravi Prakash Gupta & Anr.                                                    .. Respondents

 J U D G M E N T


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 tthat 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 7 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.

5. On behalf of the Government of India, which is the Petitioner herein, learned Additional Solicitor General, Ms. Indira Jaising, submitted that the submissions advanced on behalf of the Respondent No.1 which had been accepted by the High Court, were not tenable and that the Government of India had been actively involved in complying with the provisions of the Disabilities Act, 1995, after it came into force. The learned ASG contended that the Government of India had been making reservation for physically handicapped persons in Group `C' and `D' posts from 1977 and in order to consider the growing demand from the visually handicapped persons, a meeting for identification of jobs in various Ministries/Departments was scheduled in 1985 and 416 such posts were identified in Group `A' and `B' posts. In 1986, an Office Memorandum was issued by the Department of Personnel & Training (DoPT) providing for preference to be given to handicapped person for these posts. In 1988, another Office Memorandum was issued by the Government of India indicating that the identification done in the year 1986 would remain valid till the same was modified. After the Act came into force in 1996, a further Office Memorandum was issued, whereby reservation of physically handicapped persons in identified Group `A' and Group `B' posts/services was extended to posts which were to be filled up through direct recruitment. Learned ASG submitted that in 1999 the Ministry of Social Justice & Empowerment constituted an Expert Committee to identify/review posts in categories `A, `B', `C' and `D', in which recommendations were made for identification of posts for the visually handicapped persons. The report of the Expert Committee was accepted by the Ministry in 2001 and posts were duly identified for persons with disabilities. Learned ASG, however, made it clear that the 416 posts, which had been identified in 1985, did not include All India Services and that for the first time in 2005, the posts of the Indian Administrative Service were identified in compliance with the provisions of Section 33 of the Disabilities Act, 1995 and pursuant to such identification, the posts were reserved and filled up. Ms. Jaising also submitted that reservation upto 3% of vacancies in the reserved posts were, accordingly, identified with effect from 2006 and the claim of the Respondent No.1 for appointment on the basis of the argument that the reservation should have taken effect from 1996 when the Act came into force, was liable to be rejected.

6. Appearing in-person, Mr. Ravi Prakash Gupta, the Respondent No.1 herein, strongly defended the impugned judgment of the High Court and urged that the Special Leave Petition filed by the Government of India was liable to be dismissed. Mr. Gupta submitted that the fact that he was completely blind was known to the Petitioners and their respective authorities from the very beginning, since he had annexed his blindness certificate with his original application in the proforma provided by the Union Public Service Commission (U.P.S.C.), which showed the percentage of his blindness as 100%. However, the main thrust of Mr. Gupta's submissions was that when the Disabilities Act, 1995, came into force in 1996, it was the duty of the concerned authorities to reserve 3% of the total vacancies available immediately thereafter. The plea of non-identification of posts prior to the year 2006 was only an attempt to justify the failure of the Petitioners to act in terms of the Disabilities Act, 1995. Mr. Gupta submitted that the High Court had negated such contention made on behalf of the Petitioners and rightly directed the Petitioners to calculate the number of vacancies in terms of Section 33 of the above Act from 1996 when the said Act came into force.

7. Mr. Gupta then submitted that in terms of the Department's OM No.3635/3/2004 dated 29th December, 2005, reservations have been earmarked and should have been made available from 1996 itself and in the event the vacancies could not be filled up owing to lack of candidates, the same could have been carried forward for two years after which the same could have been treated as lapsed. Mr. Gupta submitted that although the Petitioners were fully aware of the said Office Memorandum, they chose not to act on the basis thereof and as admitted on behalf of the Government of India, the IAS cadre was identified in 2006 for the purposes of Section 33 of the Disabilities Act, 1995. In fact, the Act remained on paper as far as visually challenged candidates were concerned and only after the judgments of the Delhi High Court in the case of Ravi Kumar Arora and in the case of T.D. Dinakar were delivered, that the identification process was started. Mr. Gupta submitted that it would be pertinent to mention that the two above-mentioned candidates were appointed in the Civil Services without waiting for identification of their respective services on the orders of the High Court.

8. Mr. Gupta submitted that the plea of non- identification of posts in the IAS till the year 2006 could not absolve the petitioners of their statutory obligation to provide for reservation in terms of Section 33 of the aforesaid Act.

9. During the course of hearing, leave had been granted to one A.V. Prema Nath and one Mr. Rajesh Singh to intervene in the proceedings. The submissions made by the Respondent No.1 have been repeated and reiterated on behalf of the Intervenor No.1, Shri A.V. Prema Nath by A. Sumathi, learned Advocate. His written submissions are embellished with references to various decisions of this Court, including the decision in Francis Coralie Mullin vs. Administrator, Union Territory of Delhi & Ors. [(1981) 1 SCC 608], regarding the right to life under Article 21 of the Constitution. The main thrust of the submissions is with regard to the denial of rights to persons with disabilities under Section 33 of the Disabilities Act, 1995, which prevent them from enjoying their fundamental rights to equality and the right to live, by the State.

10. More detailed submissions were made by Mr. S.K. Rungta, learned Advocate, appearing on behalf of the Intervenor No.2, Mr. Rajesh Singh, and it was also sought to be pointed out that the said intervenor was himself a candidate from amongst the visually impaired candidates and had, in fact, been placed at serial no.3 in rank in the merit list for visually impaired candidates in the Central Services Examinations, 2006, whereas the Respondent No.1 had been placed at serial no.5. In other words, what was sought to be projected was that Shri Rajesh Singh had a better claim for appointment from amongst the visually impaired candidates over the Respondent No.1 and that if the vacancies in the reserved category were to be calculated from 1996 and even from 2001, when identification of posts in respect of Civil Services forming part of the IAS Cadre was sought to be effected and a notification to that effect was issued, the Respondent No.1 could not have been appointed.

11. It was further submitted that in the decision of this Court in The National Federation of Blind vs. Union Public Service Commission & Ors. [(1993) 2 SCC 411], the demand by blind candidates for being permitted to write the examination in Braille script, or with the help of a Scribe, for posts in the IAS was duly accepted for recruitment to the lowest posts in the service reserved for such persons. It was also held that blind and partially blind persons were eligible for appointment in Government posts. It was submitted that the submissions made on behalf of the Petitioners that the notification in respect of the services in respect of the Group `A' and `B' services in the IAS in 2005 was not a fresh exercise, but only an attempt to consolidate and strengthen the identification already available and that such an exercise could at best be said to be enabling and supplementary action for the smooth implementation of the statutory provisions containing the scheme of reservation for persons with disabilities, could not be taken as an excuse to postpone the benefit which had already accrued to candidates falling within 3% of the vacancies indicated in Section 33 of the Disabilities Act, 1995. It was also urged that after the issuance of OM dated 29th December, 2005 and OM dated 26th April, 2006, there was hardly any room for the Government of India to deny the benefit of reservation to persons with disabilities, including the blind, in Civil Services encompassing the IAS from the year 1996 itself. Furthermore, since the Act itself did not make any distinction between Group `A' and Group `B' services and Group `C' and Group `D' services, it was not available to the Government of India to contend that since identification had been done only for Group `C' and Group `D' services, prior to the year 2005, reservation in respect of Group `A' and `B' services, which include the IAS, for which identification was commenced in 2005, would only be available thereafter.

12. On behalf of the Intervenor No.2, it was submitted that the Special Leave Petition was liable to be dismissed with exemplary costs.

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.

20. The petitioners shall pay the cost of these proceedings to the respondent No.1 assessed at Rs.20,000/-, within four weeks from date.





New Delhi Dated:7th July, 2010.