Supreme Court Judgement : Kunal Singh Vs. Union of India & Anr | 13 Feb 2003 | Section 47 of PWD Act 1995

Court: Supreme Court of India

Bench: Hon'ble Justice Shivaraj V. Patil, and Hon'ble Justice H.K. Sema

Case No.: Appeal (civil)  1789 of 2000

Caste Title:   Kunal Singh  Vs. Union of India & Anr.

Date of Judgement:  13 February 2003

Act/Law: Section 47 of The Persons with Disabilities Act 1995

JUDGMENT:

By Shivaraj V. Patil, J.

The appellant was recruited as a Constable in the Special Service Bureau (for short 'the SSB'). When he was on duty, he suffered an injury in his left leg. The medical aid given to him did not help. Ultimately, his left leg was amputated on account of gangrene which had developed from the injury. He was invalidated from service by the respondents on the basis of the report of the Medical Board, Kullu under which he was declared permanently incapacitated for further service as per order dated 20.11.1998 passed by the Commandant, Group Centre, SSB Shamshi (Kullu). He filed a writ petition in the High Court challenging the validity and correctness of the said order on the ground that it was arbitrary and that he could have been assigned with alternative duty which he could discharge keeping in view the extent of his disability and having due regard to 17 years of his unblemished service. The writ petition was dismissed by the High Court holding that he had been permanently invalidated on the basis of the medical opinion and as such there was no scope for him to continue any further in service of any kind in the SSB. Hence, this appeal is filed assailing the impugned order. It appears, before the High Court, no argument was advanced specifically in support of the writ petition on the basis of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Act'). However, a specific ground is raised in this appeal based on Section 47 of the Act. Since it is a pure question of law, we have heard learned counsel for the parties on the contentions including the one based on Section 47 of the Act.

2.    The learned counsel for the appellant, pointing to few relevant definitions contained in Section 2 and Section 47 of the Act, urged that on the facts and circumstances of the case, keeping in view the object and purpose of the Act, relief ought to have been granted as sought in the writ petition.

3.    In opposition, the learned Senior Counsel for the respondents made submissions in support and justification of the impugned order. He also drew our attention to Rule 38 of the Central Civil Services Pension Rules, 1972 under which the appellant is granted invalidity pension which he is drawing. According to him, in view of the relevant definitions contained in Section 2 of the Act, the appellant is not a person with disability as he is permanently incapacitated. He also drew our attention in support of his argument to Section 2(o) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 to make a distinction.

For proper appreciation of the rival submissions of the learned counsel for the parties, it is useful and necessary to notice few definitions as contained in Section 2 and Section 47 of the Act.

"2. Definitions In this Act, unless the context otherwise requires, -

(a) to (d)..............................

(e) "Cerebral palsy" means a group of non-progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, peri-natal or infant period of development;

(f) to (h).............................

(i) "disability" means-

(i) to (iv).......................

(v) locomotor disability;

(vi) to (vii).....................

(j) ..................................

(k) "establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;

(l) to (n).............................

(o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy."

(p) to (s)..............................

(t) "persons with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;

(u) to (v)..............................

(w) "rehabilitation" refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels;

 

"47. Non-discrimination in Government employments - (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service;

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits;

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

According to the learned counsel for the appellant, his disability falls under Section 2(i)(v), namely locomotor disability. What is meant by locomotor disability is stated in Section 2(o). There is no dispute that the Act applies to the establishment of the respondents and this establishment is not exempted under any notification issued under Section 47 of the Act. "Persons with disability" means a person suffering from not less than 40% of any disability as certified by a medical authority as per the definition given under Section 2(t).

Short question that arises for consideration in this appeal is whether the appellant is entitled for the benefit of Section 47 of the Act.

From the facts, which are not in dispute, it is clear that the disability suffered by the appellant is covered by Section 2(i)(v) read with Section 2(o) of the Act. It is also not in dispute that this disability was acquired by the appellant during his service. Under Section 2 "disability" and "person with disability" are separately defined and they are distinct. We may also notice some provisions in Chapter VI of the Act relating to employment. Section 32 deals with identification of posts which can be reserved for persons with disabilities. Section 33 speaks of reservation of such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from (i) blindness or low vision; (ii) hearing impairment and (iii) locomotor disability or cerebral palsy. Section 38 requires the appropriate Governments and local authorities to formulate schemes for ensuring employment of persons with disabilities. Section 47 is included in Chapter VIII of the Act. Chapter VI deals with employment relating to persons with disabilities including identification of posts and reservation of vacancies for such persons. Under this Chapter, reservation of vacancies for persons with disabilities is made for initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who acquires a disability during his service.

The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the 'Meet to Launch the Asian and Pacific Decades of Disabled Persons' was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure 'full participation and equality of people with disabilities in the Asian and Pacific Regions'. This Meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons. 

Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. 

An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. The argument of the learned counsel for the respondent on the basis of definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired 'disability' within the meaning of Section 2(i) of the Act and not a person with disability.

We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pensions Rules. The Act is a special Legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further Section 72 of the Act also supports the case of the appellant, which reads: - "72. Act to be in addition to and not in derogation of any other law. - The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities."

Merely because under Rule 38 of CCS Pension Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.

For the reasons stated and discussions made above, the appeal deserves to be accepted. Hence the impugned order affirming the order of termination of services of the appellant is set aside and the appeal is allowed. We direct the respondents to give relief in terms of Section 47 of the Act.

There shall be no order as to costs.

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Supme Court: Javed Abidi Vs. Union of India | WP(C) 326 of 1997 | Dated 17.12.1998

Court:  Supreme Court of India

Bench:  K. Venkataswami, Justice and G.B. Pattanaik, Justice

Case No.:  W.P. (C) No. 326 of 1997

Case Title:  Javed Abidi vs Union of India & Others

Date of Judgement:  17 December 1998

Acts/Rules/Orders:  

Persons with Disabilities (Equal Opportunities, Protection  of Rights and Full Participation) Act, 1995 - Sections 2, 3(2), 9, 13 and 57; Constitution of India - Articles 14 & 32

In the Supreme Court of India

W.P. (C) No. 326 of 1997

Decided On: 17.12.1998

Appellants: Javed Abidi

Vs.

Respondent: Union of India & Ors.

Hon'ble Judges: K. Venkataswami and G.B. Pattanaik, JJ.

Subject: Constitution

Order
Pattanaik, J.

1.         Shri Javed Abidi has filed the present Writ Petition under Article 32 of the Constitution seeking direction to the Union of India to implement the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, alleging inter alia that though the Act is intended to grant opportunities to the people with disabilities for their full participation and the Act has come into operation with effect from 7.2.1996 but no effective steps are being taken for implementation of the provisions of the Act. 

The petitioner himself is an orthopaedically impaired person and has incurred the disability within the meaning of Section 2(i)(v) of the Act. He appeared in person in this Court and successfully presented his case indicating several infirmities as well as callousness of the different organisations of the State in implementing the provisions of the Act. In the Writ Petition the petitioner prayed for the following reliefs :-

"(a) Direct the Indian Airlines to immediately provide for aisle chairs in every aircraft;

(b) Direct the Indian Airlines to provide ambulift in all the airports of the country;

(c) Direct the Indian Airlines to provide 50% concession to all the disabled persons as defined in Section 2(I) of the Act because to provide this concession only to visually impaired persons is discriminatory and directly violative of the fundamental rights of the other disabled, as guaranteed under Article 14 of the Constitution of India;

(d) Direct the Central Government to appoint only disabled persons defined under Section 2(I) of the Act as per the provisions of Section 3(2)(I) and not to include any other person who is not a disabled person under the Act;

(e) Direct the Union of India to immediately appoint the Chief Commissioner and Commissioners as per Section 57 of the Act;

(f) Direct the Central Government to immediately constitute the Central Executive Committee as defined under Section 9 of the Act;

(g) Direct all the States of the country to form their own State Coordination Committee as defined under Section 13 of the Act;

(h) Direct all the State Governments to immediately constitute their respective State Executive Committee for the implementation of the Act;

(i)Direct the State Government to appoint a Commissioner for their States for proper implementation of the Act in the States of the Country"

As one of the grievances of the petitioner was that the Central Government has not constituted the Central Co-ordination Committee under Section 3 of the Act and States also have not constituted the State Co-ordination Committees as required under Section 13 of the Act, this Court issued notice to all the State Governments and the Union Territories by order dated 20th October, 1997, to get responses from them. Pursuant to the aforesaid notice the Union of India through its Secretary in the Ministry of Welfare Department filed an affidavit on 30th September, 1997, indicating the steps taken by the Union Government for implementation of the provisions of the Act including the Constitution of the Central Committee under Section 3 thereof. Different States also filed their respective affidavits indicating the constitution of the State Co-ordination Committees under Section 13. In view of the constitution of the Central Co-ordination Committee as well as the State Co-ordination Committees in most of the States. 

We do not think any further direction is necessary in that regard, but, we hope and trust that the respective Committees will discharge their obligation under the Act so as to achieve the objectives for which the Act has been enacted. It may be borne in mind that the Economic and Social Commission for Asian and Pacific Region held a meeting at Beijing on 1st to 5th December, 1992, and adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Region and India is a signatory to the said Proclamation. The Act in question was passed by the Parliament which intends to provide for the following as apparent from the Statements of Objects and Reasons:

"(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 strategies for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and

(vi) to make special provision for the integration of persons with disabilities into the social mainstream."

The Committees constituted by the Central Government as well as by the respective State Governments must, therefore, make earnest endeavour to achieve the objectives, as indicated above, in exercise of their powers conferred under the Act.

2.         The petitioner also made a specific grievance in the Writ Petition alleging the lack of facilities like providing aisle chair and ambulift by the Indian Airlines which according to the petitioner is a social obligation of the Airlines and the said Airlines must provide these minimum facilities to permit easy excess to the disabled persons particularly those who are orthopaedically impaired and suffer from locomotor disability. The Indian Airlines in course of the hearing of this Writ Petition indicated the steps taken by it in relation to providing of aisle chair in the aircraft and providing ambulift at different airports. Initially Indian Airlines had indicated that providing ambulift at major airports would be a costly affair but in its last affidavit filed in this Court it has been indicated that the major airports are going to be provided with ambulift and aisle chairs are now available in aircrafts to be used by disabled persons. Having considered the affidavits filed by the Indian Airlines we are satisfied that effective steps have been taken in that regard and it is not necessary for issuing any further direction on that aspect.

3.         One of the major grievances of the petitioner is that the Indian Airlines is not giving any concession to such disabled persons for their movement by air even though such concessions are being given to only blind persons, who are also disabled persons under the Act. According to Mr. Abidi, the petitioner in this case, orthopaedically handicapped persons with locomotor disability require the relief of concession for their travel by air more as it becomes an impossible task for them to travel from one corner to the other corner of the country by train and there is no justification for the airlines not to grant such concession to such people when the concession is made available to the blind people. Mr. Soli J. Sorabjee, the learned Attorney General appearing for the Indian Airlines on the other hand impressed upon the Court that the concession to the blind people was being given much prior to the commencement of the Act. 

According to Mr. Sorabjee, the learned Attorney General the economic condition of the Indian Airlines is such that it is not feasible to grant any further concession to any other category of disabled people and the Act itself postulates for providing facilities to the disabled persons within the limits of economic capacity. Detailed affidavits have been filed indicating the present economic position of the Indian Airlines. It has also been indicated in the said affidavits that the airlines is now reconsidering the question to withdraw such facilities to several group of citizens or to move the respective departments of the Government to get the re-imbursement.

    

4.        According to Mr. Sorabjee granting such concession to only disabled persons suffering from locomotor disability may be construed to be a discriminatory attitude towards them and, therefore, the Court should not issue such direction, but he does not dispute the fact that blindness is one of the disability under Section 2(i) of the Act and the Airlines is granting concession for travelling by air to those suffering from the disability of blindness. While we agree with Mr. Sorabjee, learned Attorney General that the economic capacity is a germane consideration while deciding the question as to whether all persons suffering from disability as defined under Section 2(i) of the Act should be granted concession like blind persons for travelling by air, at the same time we cannot ignore the true spirit and object with which the Act was enacted. To create barrier-free environment for persons with disability and to make special provision for the integration of persons with disabilities into the social mainstream apart from the protection of rights, provision of medical care, education, training, employment and rehabilitation are some of the prime objectives of the Act.

In this context the question that arises for consideration is whether at least persons suffering from locomotor disability to a particular extent can be granted the facility of concession while travelling by air which facility is already being given to those suffering from the disability of blindness. When we consider the different types of disabilities mentioned in Section 2(i) of the Act and examine the same in relation to the difficulties one may face by travelling by train to far off places, say from Delhi to Trivandrum, those who are suffering from locomotor disability would stand by a separate class itself because of their imobility and the restriction of the limbs. 

It may not be difficult for a person with low vision or a person with hearing impairment or mental retardation or a person suffering from leprosy to travel by train even to far off places whereas a person suffering from locomotor disability above certain percentage of the same will find enormous difficulty in travelling by train or bus. We are considering the question of such disabled persons in the context of granting them the facility of concession for travelling by air.

Having considered the affidavits filed by different parties and having considered the submissions made by Mr. Sorabjee appearing for Indian Airlines as well as Mr. Abidi, petitioner in person and bearing in mind the discomfort and harassment a person suffering from locomotor disability would face while travelling by train particularly to far off places we are inclined to issue direction to the Indian Airlines to grant them the same concession which the Airlines is giving to those suffering from blindness. But each and every person suffering from such disability would not be entitled to get the concession in question as it would depend upon the degree of disability.

We think it appropriate to direct that those suffering from the aforesaid locomotor disability to the extent of 80% and above would be entitled to the concession from the Indian Airlines for travelling by air within the country at the same rate as has been given to those suffering from blindness on their furnishing the necessary certificate from the Chief District Medical Officer to the effect that the person concerned is suffering the disability to the extent of 80%. Such District Medical Officer wherein the disabled ordinarily reside will constitute a Board with Specialist in Orthopaedic and one other Specialist whom he thinks suitable for the purpose and examine the person and would grant necessary certificate for that purpose.

We are quite conscious of the financial position of the Indian Airlines but yet we are issuing the aforesaid direction keeping in view the broad objectives of the Act, as already narrated, and keeping in view the fact that concession is already being granted by the Airlines to the persons suffering from blindness. With these directions and observations the Writ Petition is disposed of.

5.        Before we conclude the matter we cannot but thank the petitioner who appeared in person and brought this matter to the notice of the Court which resulted in acceleration of the implementation of different provisions of the Act not only by the Union Government but also by the State Governments.

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Supreme Court: Anil Kumar Gupta etc Vs. State of Uttar Pradesh and Ors. dated 28 Jul 1995

Court: Supreme Court of India

Bench:  B.P. Jeevan Reddy (J) and S.C. Sen (J)

Case Title: Anil Kumar Gupta, Etc Vs.  State Of Uttar Pradesh And Ors

Equivalent citations: 1995 SCC (5) 173, JT 1995 (5) 505,    1995 SCALE  (4)573

Author: B Jeevan Reddy

Date of Judgement:  28 July, 1995

J U D G M E N T 

B.P. JEEVAN REDDY, Justice

These writ petitions highlight the faulty manner in which reservations have been provided and implemented by the Government of Uttar Pradesh and its authorities in the matter of admission to medical courses for the year 1994-95. Though the dispute pertains to the academic year 1994-95, we are told that the admissions have been made only in June- July, 1995 and are yet to be finalised in respect of certain courses.

The story begins with the announcement of policy of reservation in the matter of admission to medical courses issued by the Government on May 17, 1994. According to this notification, sixty five percent of seats were reserved in favour of various classes/categories leaving only thirty five percent for open competition (O.C.) category. The reservations provided were to the following effect:

1. Backward Class      27%

2. Hill Region              3%

3. Uttarakhand Region      3%

4. Scheduled Caste      21%

5. Scheduled Tribe      2%

6. Real dependents of freedom fighters 5%

7. Son/daughter of soldier died in war/handicapped solders 2%

8. For Handicapped Candidates    2%

---------------------

    65%

---------------------

A further reservation in favour of women was also provided to the extent of thirty percent in each of the above categories. The reservations so provided were challenged by way of a writ petition in this Court under Article 32 of the Constitution-Civil Writ Petition No.777 of 1994 (Swati Gupta v. State of Uttar Pradesh & Ors.). The contention of the petitioner was that reservation of sixty five percent of seats was contrary to the decision of this Court in Indra Sawhney and Ors. v. Union of India and Ors. (1992 Suppl. (3) S.C.C. 217) and, therefore, void. Pending the said writ petition, the Government issued a notification on December 17, 1994 modifying the reservation policy contained in the notification of May 17, 1994. It would be appropriate to set out the notification dated December 17, 1994 in its entirety:

No. 6550/Sec-14/V-111/93 From: Ravindra Kumar Sharma, Sachiv, Uttar Pradesh Shasan 

To: Director General, Medical Education, Training, U.P. Lucknow Medical Section-14 Lucknow dated 17.12.94 

Sub: Reservation in seats of M.B.B.S./B.D.S./B.H.M.S. /B.A.M.S./B.U.M.S. Courses to be filled through C.P.M.T. in State Allopathic Medical Colleges/K.G. Medical College, Lucknow/All State Homeopathic/Ayurvedic/Unani Medical Colleges.

.........

Sir, In continuation of G.O.No. 2697/Sec-14/V- 94/111/93 dated 17.5.94, on the above subject, I am directed to say clarifying the Govt. policy that horizontal reservation be granted in all medical colleges on total seats of all the courses to be filled through combined Pre-Medical Test (CPMT) 1994 as given below:

1. Real dependents of freedom fighters 5%

2. Sons/daughters of deceased/disabled soldiers 2%

3. Physically handicapped candidates 2%

4. Candidates belonging to hill areas 3%

5. Candidates belong to Uttaranchal areas 3%

2. The above reservation would be horizontal and the candidates of the above categories, selected on the basis of merit, would be kept under the categories of Scheduled Castes/Scheduled Tribes/Other Backward Classes/ General to which they belong. For example, if a candidate dependent on a Freedom Fighter selected on the basis of reservation belongs to reserved for scheduled caste, (he will be adjusted against the seat reserved for S.C.?) Similarly, if a physically handicapped candidate selected on the basis of reservation belongs to other backward class or general category, he would be adjusted against the seats reserved for other backward classes or general category.

3. I am also directed to say that vertical reservation shall be granted in all medical colleges on total seats of all courses to be filled through C.P.M.T. 1994 as given below:

a) Scheduled Caste Candidates-21%} 30 seats

b) Scheduled Tribe Candidates-21%} in each

c) Other Backward Class } category candidates -27%} reserved } for ladies

4. 'Other Backward Classes' mean the classes mentioned in Annexure-1 of Notification No. 488/XVII-V-1-1(Ka) 8-1994 dated 23.3.94 notified by Vidhiyaka Anubhag, Uttar Pradesh Adhiniyam No.4/1994. The candidates of backward classes mentioned in Annexure-II of the aforesaid Adhiniyam would not be entitled for the reservation.

5. I am also directed to clarify that if a candidate of reserved category, mentioned in para 3 above, is selected alongwith general category candidates on the basis of merit, he shall not be adjusted against reserved seats, as G.O. in this regard has already been issued. So, 50% seats of general category shall be filled on the basis of merit prior to filling of reserve seats mentioned in para 3 above.

Please ensure strict compliance of these orders.

Yours faithfully, sd/-

Ravindra Kumar Sharma Sachiv"

This revised notification was brought to the notice of this Court at the hearing of the aforesaid writ petition. After noticing both the aforesaid notifications this Court (the Bench comprising R.M.Sahai, J. and one of us, Suhas C.Sen, J.) observed as follows:

"2. Reservation of 65% resulting in reducing the general category of 35% was undoubtedly violative of Article 16. Further by reserving 30% of the general seats for ladies the general category shrank to 5%. But these glaring infirmities have been rectified by the amended circular. Reservation of 30% for ladies has now been confined to para 3 of the amended circular. Dr. Dhavan, learned Senior Counsel appearing for the State clarified that he has instructions to make a statement on the amended circular that now there is no reservation for ladies in the general category.

3. Similarly, the other defect in the circular reserving 35% seats for general category has been removed. The vertical reservation is now 50% for general category and 50% for Scheduled Castes, Scheduled Tribes and Backward Classes.

Reservation of 15% for various categories mentioned in the earlier circular which reduced the general category to 35% due to vertical reservation has now been made horizontal in the amended circular extending it to all seats. The reservation is no more in general category. The amended circular divides all the seats in CPMT into two categories - one, general and other reserved. Both have been allocated 50%. Para 2 of the circular explains that candidates who are selected on merit and happen to be of the category mentioned in para 1 would be liable to be adjusted in general or reserved category depending on to which category they belong, such reservation is not contrary to what was said by this Court in Indra Sawhney. Whether the reservation for such persons should have been made or not was not challenged, therefore, this Court is not required to examine it.

4. In the result this petition is disposed of by directing that in view of the circular issued by the Government on 17-12-1994 clarified by para 2 the grievance of the petitioner cannot be said to have been survived. The interim order passed by this Court staying the declaration of results is discharged." 

This decision was rendered on February 2, 1995. On February 14, 1995 the Government issued a clarification stating:

"I have been directed to say that partly modifying the G.O.No.6550-Sec.14- V/111/93 dt.17.12.94 on the above subject, clause para 3 of the said G.O. shall be read as under:

3. I am also directed to say that vertical reservations shall be granted in all Medical Colleges on total seats of all Courses to be filled through C.P.M.T. 1994.

i) Scheduled Caste Candidates 21%

ii) Scheduled Tribes Candidates 2%

iii) Other Backward Class Candidates 27%"

 The effect of this clarification is that reservation in favour of women has been removed from all the reserved categories.

The Lucknow University had issued a notification calling for applications for admissions to medical courses in the State in accordance with the notification of May 17, 1994. After the decision of this Court in Swati Gupta and in the light of the revised notification by the Government, as also the clarification issued on February 14, 1995, the University issued a corrigendum stating that the reservation in favour of five categories, viz., (1) actual dependents of freedom fighters - 5%, (2) sons/daughters of soldiers/deceased/disabled in war - 2%, (3) physically handicapped - 2%, (4) candidates of hill area - 3%, and (5) candidates of Uttarakhand area - 3% (hereinafter referred to as in this judgment as "Special Categories") shall be horizontal reservations and not vertical reservations. The corrigendum stated:

".....following Horizontal reservation has been provided on the total seats of all the courses of every Medical College to be filled on the basis of Combined Pre-Medical Test, 1994:

1) Actual dependents of freedom fighters 5%

2)Sons/daughters of Soldiers/deceased/disabled inwar 2%

3) Physically handicapped 2%

4) Candidates of Hill Area 3%

5) Candidates of Uttarakhand Area 3%

2. The above reservation will be horizontal and the candidates of above categories, selected on the basis of merit, would be kept under the categories of Schedule Caste/Schedule Tribe/Other Backward Class/General to which they belong.

3. It is also informed that on total number of seats of every course in every Medical College through C.P.M.T. 1994. The following vertical reservations have been provided:

     (1) Scheduled Caste Candidates      : 21%

     (2) Scheduled Tribe Candidates      : 2%

     (3) Other Backward  Class  Candidates  : 27%

4. It is also clarified that if any candidate belonging to Schedule Caste/Schedule Tribe/Other Backward Class categories is selected in open competition on the basis of merit, then he will not be adjusted in the seats reserved for concerned categories. Therefore after filling the seats on the basis of horizontal reservation, the unreaserved seats will be filled on the basis of merits and thereafter reserved seats for Schedule Caste/schedule tribe/Other Backward Class will be filled.

5. As per above mentioned provisions the provisions for reservations in application form and important guidlines for C.P.M.T.1994 issued earlier will deemed to be modified accordingly.

6. Therefore, it is desired from the candidates falling under horizontal reservations that if they belong to Scheduled Caste, Scheduled Tribe or Other Backward Class Category, then they should send Caste Certificate on the following proforma giving his Roll number and examination details to the Registrar, Lucknow University by 28.2.95. If Caste Certificate is not receivedwithin the prescribed period, then it will be deemed that concerned candidates belongs to the General Category. Once a Caste Certificate is furnished same cannot be changed subsequently. The prescribed proforma of Caste Certificate is being sent to the concerned candidates falling under Horizontal reservation through UPC for necessary action as aforesaid. In case proforma of Caste Certificate is not received by post, then same can be obtained by contacting Registrar, Lucknow University."

In accordance with the procedure aforesaid, admissions have been made which are questioned in the present two writ petitions.

At the outset, we may mention a glaring illegality which has unfortunately not been raised in these writ petitions but is self-evident from the decisions of this Court. Under the revised notification dated December 17, 1994, three percent of the seats have been reserved for candidates belonging to hill areas and another three percent in favour of candidates belonging to Uttaranchal areas. These two reservations along with the reservations in favour of physically handicapped, children of deceased/ disabled soldiers and dependents of freedom fighters are treated as horizontal reservations. In other words, the reservations in favour of hill areas and Uttaranchal areas are understood and treated as reservations relatable to Article 15(1) of the Constitution and not as reservations in favour of "socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes" within the meaning of Article 15(4) of the Constitution. It has been held by this Court in State of Uttar Pradesh v. Pradeep Tandon (1975 (1) S.C.C.267) that the reservation of seats in favour of candidates belonging to hill areas and Uttarakhand areas are reservations within the meaning of Article 15(4) of the Constitution, i.e., they are reservations in favour of socially and educationally backward classes of citizens. This Court found that "the State has established that the people in hill and Uttarakhand areas are socially and educationally backward classes of citizens". It, therefore, follows that a separate horizontal reservation of six percent of the seats in favour of candidates from hill areas and Uttaranchal apart from and in addition to twenty seven percent reservation in favour of other backward class candidates is clearly illegal. Though this contention has not been specifically raised in these writ petitions we must yet take notice of this circumstance while making the appropriate directions in these matters. It isindeed surprising that the State of Uttar Pradesh which is a party to the above decision has failed to bear it in mind. The said decision has also been referred to approvingly in Indra Sawhney. The State of Uttar Pradesh shall keep this in mind for future selections as also in respect of those which may be now under way and make necessary corrections.

We may now turn to the contentions raised in the writ petition.

In the initial notification calling for applications, the fifteen percent special reservations were treated as vertical reservations along with reservations in favour of Other Backward Classes, Scheduled Castes and Scheduled Tribes. Applications were accordingly received. But with the issuance of the revised notification of December 17, 1994, the decision of this Court in Swati Gupta and the clarification contained in the letter dated February 14, 1995, these special reservations became horizontal reservations. Accordingly, a corrigendum was issued by the Lucknow University calling upon the candidates belonging to these special categories to specify to which social reservation category they belong. In other words, the candidates who had applied under any of the said special reservations were asked to specify whether they belong to Scheduled Tribes, Scheduled Castes, Other Backward Classes or to open competition category, as the case may be. It is stated that the candidates did indicate the same. According to the counter-affidavit now filed on behalf of the respondents, it appears that out of 2130 candidates who had applied against the five special reservation categories only nine stated that they belong to Other Backward Classes. None stated that they belong to Scheduled Tribes or Scheduled Castes which meant that but for nine candidates, all the rest applying under the aforesaid special categories were from the general/non-reserved category. As we shall indicate presently, 110 out of 112 special reservation candidates have been accommodated only in O.C. category and none in the O.B.C., S.C. or S.T. category.

Now, coming to the manner in which the said two-way reservations, viz., social reservations (vertical reservations) and special reservations (horizontal reservations) have been implemented, a few facts may be noticed. In the Counter-affidavit filed by the respondent (sworn-to by Sri G.K.Bajpai) it is stated that the total number of seats available in M.B.B.S, course in the government colleges in Uttar Pradesh is 746. Fifteen percent of the said number comes to 112 seats. In Para 16, it is stated:

"16. That in C.P.M.T. 1994 out of this 112 seats 101 students were selected and all of them belong to the General Category. The replying respondent filled up unreserved seats first and while doing so, 101 students selected on the basis of horizontal reservation since they belong to General Category, hence they have to be adjusted against unreserved seats. 9 belonging to Other Backward ClassesCategory has secured equivalent marks as General Candidates and thus were selected on merits. These candidates have been adjusted against unreserved category. The Roll number, names and total marks out of 1200 of these candidates are as follows:

1. 33936 Vinay Kumar Gupta S/o J.P.Gupta 974/1200

2. 16678 Sharad Chandra s/o B.S. Yadava 971/1200

3. 28415 Ram Yash Singh Yadava S/o S.C.S. Yadava 957/1200

4. 10506 Neeraj Kumar S/o O.P.Yadava 950/1200

5. 60497 Zafar Neyas 947/1200

6. 47946 Vishal Singh S/o Y. Singh 947/1200

7. 47684 Rohit Yadava S/o V.S. Yadava 1003/1200

8. 15633 Monica Yadava S/o S.K. Yadava 954/1200

9. 57620 Mohd. Muddasir 944/1200 The remaining 263 seats were filled through General Candidates and last candidate selected has secured 891 marks out of 1200 marks. 201 candidates of Other Backward Classes were selected against reserved seats 157 against seats reserved for Scheduled Castes and 15 against seats reserved for Schedule Tribe. Similarly same procedure was applied in all the categories. Therefore, the contention of the petitioner that only 36% seats are filled with General Candidates is wrong. A photostat copy of tabulated result is being filed herewith and marked as Annexure R-IV to to this affidavit."

A reading of Para 16 makes it clear that the authorities in-charge of making admissions first took up the special category reservations and filled them up. Of the 112 candidates, 101 were from what may be called for the sake of convenience, `unreserved category' while nine candidates belonged to Other Backward Class category. But it appears that inasmuch as the said nine candidates belonging to Other Backward Classes had secured equal marks with the general candidates and were accordingly selected on merit in the O.C. quota, they were treated as Open competition candidates. The result was that out of 112 seats reserved for special categories, 110 seats were taken away from the Open competition (O.C.) category, thus leaving only 263 seats for the general candidates, i.e., O.C. candidates not belonging to any of the special reservations. It is the above method of filling of seats that has been challenged in these writ petitions.

The contention of the learned counsel for the petitioners is two fold: (i) by virtue of the revised notification of December 17, 1994, the decision of this Court in Swati Gupta and the corrigendum notification issued by the Lucknow University, it is clear that the special reservation seats are to be distributed and allocated proportionately among the social, i.e., vertical reservation categories. Had it been so done, only fifty six candidates belonging to special reservation categories could be accommodated in the O.C. category. But, the respondents have accommodated 110 special reservation candidates in the O.C. category, an excess of fifty four seats. These fifty four seats must be taken away from the special reservation categories and allotted to O.C. candidates not belonging to any special reservation category. (ii) The procedure prescribed in the aforesaid revised notification for filling up the vacancies is equally illegal which has also resulted in the dimunition of seats available for O.C. category. The admissions should be re-done thoroughly to rectify the said error.

On the other hand, the learned counsel for the respondents justify the procedure prescribed in the revised notification for making the admissions. With respect to the first contention of the learned counsel for the petitioners, the submission of the learned counsel for the Lucknow University and the State of Uttar Pradesh is that the fifteen percent reservation in favour of special categories (special reservation) is an overall reservation and not a compartmentalised reservation. They submit that these special reservations are not divided proportionately among the vertical (social) reservation categories and, therefore, these special reservation candidates have to be provided fifteen percent of the total seats (i.e., 112 seats) overall, whether by adjusting them against any of the social/vertical reservations or otherwise.

The question is which of the above interpretations is the correct one having regard to the language employed in the concerned notifications?

On a careful consideration of the revised notification of December 17, 1994 and the aforementioned corrigendum issued by the Lucknow University, we are of the opinion that in view of the ambiguous language employed therein, it is not possible to give a definite answer to the question whether the horizontal reservations are overall reservations or compartmentalised reservations. We may explain these two expressions. Where the seats reserved for horizontal reservations are proportionately divided among the vertical (social) reservations and are not inter-transferable, it would be a case of compartmentalised reservations. We may illustrate what we say: Take this very case; out of the total 746 seats, 112 seats (representing fifteen percent) should be filled by special reservation candidates; at the same time, the social reservation in favour of Other Backward Classes is 27% which means 201 seats for O.B.Cs.; if the 112 special reservation seats are also divided proportionately as between O.C.,O.B.C.,S.C. and S.T., 30 seats would be allocated to the O.B.C. category; in other words, thirty special category students can be accommodated in the O.B.C. category; but say only ten special reservation candidates belonging to O.B.C. are available, then these ten candidates will, of course, be allocated among O.B.C. quota but the remaining twenty seats cannot be transferred to O.C. category (they will be available for O.B.C. candidates only) or for that matter, to any other category; this would be so whether requisite number of special reservation candidates (56 out of 373) are available in O.C. category or not; the special reservation would be a water tight compartment in each of the vertical reservation classes (O.C.,O.B.C.,S.C. and S.T.). As against this, what happens in the over-all reservation is that while allocating the special reservation students to their respective social reservation category, the over-all reservation in favour of special reservation categories has yet to be honoured. This means that in the above illustration, the twenty remaining seats would be transferred to O.C. category which means that the number of special reservation candidates in O.C. category would be 56+20=76. Further, if no special reservation candidate belonging to S.C. and S.T. is available then the proportionate number of seats meant for special reservation candidates in S.C. and S.T. also get transferred to O.C. category. The result would be that 102 special reservation candidates have to be accommodated in the O.C. category to complete their quota of 112. The converse may also happen, which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter se quota between O.C., O.B.C., S.C. and S.T. will not be altered.

Now coming to the revised notification of December 17, 1994, it says that "horizontal reservation be granted in all medical colleges on total seats of all the courses....". These words are being interpreted in two different ways by the parties; one says it is over-all reservation while other says it is compartmentalised. Paragraph 2 says that the candidates selected under the aforesaid special categories "would be kept under the categories of Scheduled Castes/Scheduled Tribes/Other Backward Classes/General to which they belong. For example, if a candidate dependent on a freedom fighter selected on the basis of reservation belongs to Scheduled Castes, he will be adjusted against the seat reserved for Scheduled Castes". This is sought to be read by the petitioners as affirming that it is a case of compartmentalised reservation. May be or may not be. It appears that while issuing the said notification, the Government was not conscious of the distinction between overall horizontal reservation and compartmentalised horizontal reservation. At any rate, it may not have had in its contemplation the situation like the one which has arisen now. This is probably the reason that this aspect has not been stated in clear terms.

It would have been better - and the respondents may note this for their future guidance - that while providing horizontal reservations, they should specify whether the horizontal reservation is a compartmental one or an overall one. As a matter of fact, it may not be totally correct to presume that the Uttar Pradesh Government was not aware of this distinction between "overall horizontal reservation", since it appears from the judgment in Swati Gupta that in the first notification issued by the Government of Uttar Pradesh on May 17, 1994, the thirty percent reservation for ladies was split up into each of the other reservations. For example, it was stated against backward classes that the percentage of reservation in their favour was twenty seven percent but at the same time it was stated that thirty percent of those seats were reserved for ladies. Against every vertical reservation, a similar provision was made, which meant that the said horizontal reservation in favour of ladies was to be a "compartmentalised horizontal reservation". We are of the opinion that in the interest of avoiding any complications and intractable problems, it would be better that in future the horizontal reservations are comparmentalised in the sense explained above. In other words, the notification inviting applications should itself state not only the percentage of horizontal reservation(s) but should also specify the number of seats reserved for them in each of the social reservation categories, viz., S.T., S.C., O.B.C. and O.C. If this is not done there is always a possibility of one or the other vertical reservation category suffering prejudice as has happened in this case. As pointed out hereinabove, 110 seats out of 112 seats meant for special reservations have been taken away from the O.C. category alone - and none from the O.B.C. or for that matter, from S.C. or S.T. It can well happen the other way also in a given year.

Now, coming to the correctness of the procedure prescribed by the revised notification for filling up the seats, it was wrong to direct the fifteen percent special reservation seats to be filled up first and then take up the O.C. (merit) quota (followed by filling of O.B.C., S.C. and S.T. quotas). The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an over-all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special rreservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) Because the revised notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the O.C. quota.

In this connection, we must reiterate what this Court has said in Indra Sawhney. While holding that what may be called "horizontal reservation" can be provided under clause (1) of Article 16, the majority judgment administered the following caution in para 744: "(B)ut at the same time, one thing is clear. It is in very exceptional situation - and not for all and sundry reasons - that any further reservations of whatever kind, should be provided under clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress the specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simply. If reservations are made both under clause (4) as well as under (1), the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do". Though the said observations were made with reference to clauses (1) and (4) of Article 16, the same apply with equal force to clauses (1) and (4) of Article 15 as well. In this case, the reservation of fifteen percent of seats for special categories was on very high side. As pointed out above, two categories out of them representing six percent out of fifteen percent are really reservations under Article 15(4), wrongly treated as reservations under Article 15(1). Even otherwise, the special reservation would be nine percent. The respondents would be well advised to keep in mind the admonition administered by this Court and ensure that the special reservations (horizontal reservations) are kept at the minimum.

Having pointed out the errors in the rule of reservation and its implementation, the question arises what should be done now? Should we interfere with the admissions already finalised? We think it inadvisable to do so. It may be remembered that the admissions now finalised (in June- July, 1995) are really the admissions which ought to have been finalised one year back. The delay has occured on account of the first faulty notification (issued on May 17, 1994). When a writ petition was filed in this court - probably some writ petitions in the High Court also - the Government realised its mistake and issued the revised notification on December 17, 1994. It dropped the reservation in favour of women in stages. The University had then to issue a corrigendum asking the special category candidates to indicate their social status. This was a delayed exercise which ought to have been undertaken at the beginning itself. Even the manner in which the seats have been filled up, as indicated above, is faulty. What we have laid down herein is more for the purpose of future guidance for the respondents. At the same time, we have to rectify the injustice done to the open competition candidates in the admissions in question, to the extend feasible. Accordingly, we direct that in the matter of admissions made pursuant to C.P.M.T.1994, while the admissions already finalised shall not be disturbed, the Uttar Pradesh Government shall create thirty four additional seats in the M.B.B.S. couse and admit thirty four students from the O.C. category against those seats. If any seats are vacant as on today, they shall also be filled from the O.C. category alone. (It is made clear that O.C. category means the merit list and no distinction shall be made among the candidates in the O.C. list on the basis of their social status because it is well settled that even a S.T./S.C./O.B.C. candidate is entitled to obtain a seat in the O.C. category on the basis of his merit.) The counsel for the petitioners complain that fifty four students belonging to O.C. category have been deprived on account of respondents' faulty actions and that it should be directed to be made up. We cannot agree. The factual basis of this submission is debatable in view of the ambiguity mentioned hereinbefore. We have directed creation of thirty four seats (making a total of 780 seats this year) having regard to all the facts and circumstances of the case. This creation of additional seats is restricted to current admissions only and shall not be a permanent feature. The Uttar Pradesh Government/concerned authorities shall allocate the said thirty four additional seats appropriately among the government medical colleges and make admissions thereto as early as possible.

We hope and trust that the respondents will ensure that a similar situation does not arise for the ensuing admissions.

The writ petitions are disposed of with the above terms. No costs.

A copy of this judgment shall be communicated to the Chief Secretary, Government of Uttar Pradesh and the Secretary, Medical Education and Training, Government of Uttar Pradesh eo nomine (i.e., by their designation) for their attention and implementation.

Supreme Court of India | National Federation Of Blind Vs. Union Public Service Commission | Dated 23 Mar 1993

Context of the Judgement

The visually impaired persons constitute a significant section of our  society. As  it is  necessary  to  encourage   their participation  in every walk of life, the Central  Ministry of Welfare has been undertaking various measures to  utilise their potentialities.  The Governments have launched schemes to  educate, train and provide them with useful employment. The Central Government has provided 3% reservation in  Group C and D posts for PH candidates (including blind and partially blind, while demand is growing for reservations in Group A and B posts.

The Standing Committee of the Ministry of Welfare undertook identification of jobs in these categories and submitted its report on October 31, 1986.  Para 8 thereof related to the blind. It took note of reading and writing deficiency and suggested  the provision of allowance.  And found  that the specified 416 posts in Group A and B are suitable for  blind and  partially blind.  So, the Ministry of Personnel  issued office memorandum dated November 25, 1986 a  accepting the report and took policy decision regarding identification  of jobs for the physically handicapped persons in Group A and B posts filled to be by direct recruitment in Central  Government Services and Public Sector Undertakings.

This  court  examined  the memorandum  and  found  that the Government had taken cognizance of the identified jobs; that the Government had decided about the recruitment of  handicapped persons  to these posts; that the departments would supplement the list further;  that the Ministries/ Departments would inform the UPSC about preferential treatment to handicapped candidates; that  the UPSC had agreed in principle to  give preference; and  that the Department of Personnel and Training would  be issuing general instructions for the purpose.

However, the decisions were not implemented for seven years. Therefore, the petitioner approached Hon'ble Supreme Court seeking a  writ  in the nature of mandamus directing the Union of India and the UPSC to permit the blind candidates to compete for the I.A.S. and Allied Services and to provide them facility of  writing the  civil services examination either in Braille Script  or with the help of a scribe.

On hearing the counsel for the petitioner, himself  visually handicapped, the Hon'ble Court, held as below :-

The performance of the counsel for the  petitioner before us  has amply proved the point that  the  visually handicapped  persons can perform the jobs entrusted to them with  equal  efficiency.  However the question  of  giving preference  to the handicapped in the matter of recruitment to  the identified posts is a matter for the  Government  of India  to decide.  The Government of India is  commended  to decide the question of providing preference/reservation  to the handicapped in Group A and B Posts.

The Hon'ble Supreme Court further held that there are number of post  which are  required  to  be  filled  through the  civil  services examinations and other competitive examinations conducted by the  Commission,  so the observations of the UPSC  that the posts  identified as suitable to be held by  the  physically handicapped  persons, particularly those identified for the blind  were  not  required  to be filled  on  the  basis  of competitive   examination  conducted  by   the Commission, appeared to be incorrect.  Group  A  and  B posts in  the category  of  Administrative Officers  are necessarily to be filled as a result of  civil services  examination  held  by the UPSC.  If  some  of the identified  posts in the Indian Administrative Service and other  Allied  Services can  be  filled  from amongst the visually  handicapped persons, there was no reason why they should not be permitted to sit and write the civil  services examination.

Judgement:

Equivalent citations: 1993 AIR 1916, 1993 SCR (2) 556

PETITIONER: NATIONAL FEDERATION OF BLIND
Vs.
RESPONDENT: UNION PUBLIC SERVICE COMMISSION AND OTHERS

DATE OF JUDGMENT 23/03/1993

BENCH:
KULDIP SINGH (J)
KASLIWAL, N.M. (J)

 CITATION:
 1993 AIR 1916          1993 SCR  (2) 556
 1993 SCC  (2) 411     JT 1993 (2) 541
 1993 SCALE  (2)181

ORIGINAL JURISDICTION

Writ Petition (C) No. 655 of 1991. 

(Under Article 32 of the Constitution of India). 

Santosh Kumar Rungta and R.P. Gupta for the Petitioner.
V.C. Mahajan, Ms. Niranjana Singh and Ms. A. Subhashini for the Respondents.

Judgment Authored by KULDIP SINGH, J.

National Federation of Blind a representative body of visually handicapped persons in India has filed this petition under Article 32 of the Constitution of India seeking a writ in the nature of mandamus directing the Union of India and the Union Public Service Commission to permit the blind candidates to compete for the Indian Administrative Service and the Allied Services and further to provide them the facility of writing and civil services examination either in Braille-script or with the help of a Scribe. Braille is a system of writing for the blind in which the characters consist of raised dots to be read by the fingers. Further relief sought in the petition is that Group A and B posts in Government and public sector undertakings which have already been identified for the visually handicapped persons be offered to them on preferential basis.

The visually handicapped constitute a significant section of our society and as such it is necessary to encourage their participation in every walk of life. The Ministry of Welfare, Government of India has been undertaking various measures to utilise the potentialities of the visually handicapped persons. The Central as well as the State Governments have launched several schemes to educate, train and provide useful employment to the handicapped. The Central Government has provided reservations to the extent of 3% vacancies in Group C and D posts for the physically handicapped including blind and partially blind. There has been a growing demand from the visually handicapped persons to provide reservations for them in Group A and B posts under the Central Government. The Ministry of Welfare, Government of India has a standing Committee or identification of jobs in various Ministries/Departments and public sector undertakings for the physically handicapped. By an order dated December 30, 1985 the Government of India directed the Standing Committee to undertake the identification of jobs for the handicapped in Group A and B Services under the Government and public sector undertakings.

The Committee submitted its report which was published on October 31, 1986. Copy of the report has been placed on the record of this petition. In the introduction to the report given by Mr. M.C. Narsimhan, Joint Secretary to Government of India and Chairman, Stating committee on identification of jobs for handicapped, it has been stated as under:-

"A Sub Committee, which was set up to assist the Standing Committee visited a large number of Public Sector Undertakings and observed people actually working in a variety of jobs and the working conditions in which these jobs are performed. The Sub Committee had detailed discussions with the Chiefs and Senior Officers of the Public Sector Undertakings as also with officers of the Central Government Departments. A fist of the public sector undertakings and the list of the officers of the Undertakings with whom the Sub Committee had discussions is annexed to the report. The Committee after detailed discussions and on- the-spot study has prepared a comprehensive list of 416 categories in Group A and B posts in Government Offices and Public Sector Undertakings, with their jobs descriptions, the physical requirement of each group of job and matched them with various categories of disabilities."

The Committee devoted special attention to the visually handicapped. Para 8 of the report which relates to the blind is as under:-

"However, in the case of the blind the position is somewhat different. Seeing, reading, writing and movement are essential ingredients of most Government jobs. Therefore, a similar approach in respect of blind persons may be difficult. It would not be possible to generalise that blind person can do most jobs as we have found for those with locomotor and hearing disabilities. The Committee found that in higher posts is Government the help of a personal assistant or a stenographer is generally available. But this facility is. not available even in higher posts in public sector undertakings. Wherever this facility is available a blind person may not find it difficult, in certain groups of posts, to handle the job. It is also possible, in relation to other posts where stenographic assistance is not available that some other facilities can be provided to a blind employee. To compensate 'reading deficiency, readers' allowance can be provided to blind employees to enable them to engage a reader.

Similarly, to compensate for "writing deficiency", the blind employee should be required to know typing. Adequate knowledge of typing should be prescribed as an essential qualification for blind employees for public employment. Where mobility may also be one of the main ingredients of a job it is difficult to compensate blind employees for this "deficiency. The Committee would also emphasise that the blind employee should be fully responsible for the duties assigned to them, despite the provision of reader's allowance and typing skill. The Committee would also suggest that the maximum reader's allowance should be limited to Rs.200 p.m. to blind employees recruited to Group A and B post.' The Committee has identified about 416 categories of Group A and B posts which are suitable for the handicapped. The Committee has further specified that the visually handicapped (blind and partially blind) are suitable for appointment to the following categories of Group A and B post:-

No. in the List       Category of       Group
Annexed to the Post
Report
------------------------------------------------------------
178 to 187      Hindi officers                    A & B
191 to 192      Job Analyst                    A & B
193 to 199      Labour Welfare Officers     A & B    
200 to 209      Law Officers                    A & B
237 to 242      Personal Assistants            B
243 to 256      Personnel Officers            A & B
279 to 291      Public Relations Officers    A & B
295 to 317      Research Officers            A & B
354 to 363      Training Officers            A & B
364 to 376 Administrative Officer
        (Non Secretarial)    A
377 to 384      Administrative Officers
       (Secretarial-Sr.)    A
385 to 401 Administrative Officers
        (Secretarial-Junior)            A & B
409          Asstt. Admin. Officer
------------------------------------------------------------

We have only quoted the list of categories from the report to illustrate the point that the Committee appointed by the Government has in its report identified certain categories of posts to which the blind and the partially-blind can be appointed.

Government of India Through Ministry of Personnel issued office memorandum dated November 25, 1986 wherein it accepted the report of the Committee and took a policy decision that in respect of the posts identified by the Committee the handicapped persons shall be given preference in the matter of recruitment to those posts. The office memorandum is re-produced hereunder:

"No.F.36034/4/86-Estt.(SCT) 

Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training .............. 

New Delhi, the 25th November, 1986 

OFFICE MEMORANDUM 

Subject:- Identification of jobs for the physically handicapped persons in Groups 'A' and 'B' posts filled by direct recruitment in the Central Government services and Public Sector Undertakings. 

The undersigned is directed to say that with a view to effecting optimum utilisation of potentialities of physically handicapped which constitutes a significant section of the population in the country, the Ministry of Welfare constituted a Standing Committee for identification of jobs for the physically handicapped in the Central Government services and Public Sector Undertakings. 

The Standing Committee on identification of jobs set up a sub-Committee for on-the-spot identification of jobs for the physically handicapped persons in Group 'A and 'B' posts after making an in depth study of Undertakings as well as in consultation with the concerned authorities. 

This sub Committee in its Report (submitted to the parent Committee) identified 420 jobs in Group 'A' and Group posts/services alongwith the physical requirements and functional classifications of disabilities indicating what jobs can be held by each category of disabled people and with what disability. It has been decided that in respect of identified posts which can be held by physically handicapped persons preferences to physically handicapped persons will be ,given in the matter of recruitment to those posts. A copy of the report of the Committee referred to in para-1 is enclosed for information guidance and necessary action. The list of jobs identified by the Committee on suitable for being held by physically handicapped persons is not exhaustive. 

The Ministries/Departments can further supplement the list based on their knowledge for jobs requirements, essential qualifications etc. The Ministries/Departments after identifying all the posts which can be held by physically handicapped persons may inform the UPSC at the time of sending their requisitions for filling vacancies in respect of those posts, that preference is to be given to physically handicapped persons in the matter of recruitment. 

The UPSC have agreed in principle to give preference to physically handicapped persons in filling the identified posts. The Department of Personnel and Training will be issuing general instructions to enable preference being given to the physically handicapped persons in such cases. 

The Ministry of Finance etc. are requested to bring these instructions to the notice of all concerned.
Sd/-
(BATA K, DEY)
DIRECTOR (JCA)' 

From the office memorandum quoted above it is obvious that the Government of India has taken the following policy decisions to implement the Committee report:-

1. The Government of India has taken cognizance of the fact that the Standing Committee on identification of jobs through its Sub-Committee has identified 420 jobs in Group A and Group B posts/services along with the physical requirements and functional Classifications of disabilities indicating what jobs can be held by each category of disabled people and with what disability.
2. The decision has been taken that in respect of identified posts which can be held by physically handicapped persons preference to physically handicapped persons will be given in the matter of recruitment to those posts.
3. The list of jobs identified by the Committee is not exhaustive, the Ministries/Departments can further supplement the list based on their knowledge of job requirements, essential qualifications etc.
4. The Ministries/Departments after identifying all the posts which can be held by physically handicapped persons may inform the Union Public Service Commission at the time of sending their requisitions for filling vacancies in respect of those posts, that preference is to be given to physically handicapped persons in the matter of recruitment.
5. The Union Public Service Commission has agreed in principle to give preference to physically handicapped persons in filling identified posts.
6. The Department of Personnel and Training will be issuing general instructions to enable preference being given to the physically handicapped persons in such cases. 

Mr. S.K Rungta, learned counsel for the petitioner has contended that the memorandum dated November 25, 1986 was issued more than seven years back but so far the decisions taken therein have not been implemented. Mr. Rungta (himself visually handicapped) has argued his case with utmost clarity.  Mr. Rungta was fully conversant with all the relevant annexures to the petition. He referred to the relevant pages in the bulky paper book with perfect ease. We did not feel even for a moment that the case was being argued by a visually handicapped lawyer. Mr. Rungta's performance before us amply proves the point that the visually handicapped persons can perform the jobs entrusted to them with equal efficiency.

The question of giving preference to the handicapped in the matter of recruitment to the identified posts is a matter for the Government of India to decide. The matter is pending for decision with the Government of India for the last several years. While appreciating various measures undertaken by the Government to provide useful employment to the handicapped persons we commend the Government of India to decide the question of providing preference/reservation to the handicapped in Group A and B posts as expeditiously as possible.

So far as the claim of visually handicapped for writing the civil services examinations, in Braille-script or with the help of Scribe, is concerned, we are of the view that their demand is legally justified.

The fist 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. 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 filled as a result of civil services examination by the Union Public Service Commission. If some of the posts in the Indian Administrative Service and other Allied Services, as identified by the Committee, can be filled 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.

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.

Petition allowed partly.

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