Thursday, April 15, 2004

DHC | Ravi Kumar Arora vs Union Of India (UOI) And Anr. | Dated 15 April, 2004 [Judgement]


Delhi High Court
Ravi Kumar Arora vs Union Of India (UOI) And Anr. on 15 April, 2004
Equivalent citations: 111 (2004) DLT 126, 2004 (3) SLJ 486 Delhi
Author: S K Kaul
Bench: S K Kaul
JUDGMENT Sanjay Kishan Kaul, J.

1. The ingenuity of bureaucratic system can set at naught implementation of the best-intended legislations. Judicial proceedings, which resulted in the legislation of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ( hereinafter to be referred to as, 'the said Act' ) are sought to be negated by the ingenuous method of forming one committee after another to identify the posts for the benefit of the persons with disability. The mandate of the Act, which came into force on 07.02.1996, is, thus, violated with impunity on the ground that such posts have not been identified for now almost eight years! Persons like the petitioner are, thus, told that they must wait till these committees identify the posts or till deluge, whichever may be later.

2. It is no answer to the persons with disability to be told that the Government is still not equipped and ready with the identified posts. They have waited enough and as Gabrielle Mistral said, " Right now is the time, his bones are being formed, his blood is being made and his senses are being developed ... to him, we cannot answer 'tomorrow'. His name is 'today'."

3.In order to appreciate the contours of the disputes in the present case, it is necessary to go into the history of the legislation. An insight into this can be found even from the Statement of Objects and Reasons of the said Act. In December, 1992, a meeting to launch the Asian and Pacific Decade of Disabled Person 1993-2002 was convened by the Economic and Social Commission for Asian and Pacific Region in Beijing. This resulted in adoption of the Proclamation on the full participation and equality of people with disabilities in the Asia and Pacific Region. India was a signatory to the said Proclamation.

4.The issue of providing friendly environment to persons with disability soon found part of the judicial pronouncements by the Hon'ble Supreme Court in National Federation of Blind v. Union Public Service Commission & Ors., . The judgment gave the right to visually handicapped persons to compete on equal footing for job opportunities and the Government of India and Union Public Service Commission ( in short, 'UPSC' ) were directed to permit blind and partially blind eligible candidates to compete and write the civil services examination in Braille-script or with the help of scribe. The matter did not rest at this since further directions were issued to the Government of India to decide the question of providing preference / reservation to the visually handicapped persons in Group 'A' and 'B' posts in the Government and public sector undertakings expeditiously. The Supreme Court noted that the visually handicapped constitute the significant section of our society and as such it is necessary to encourage their participation in every walk of life. Some reservation had been provided by the Central Government for vacancies in Group 'C' and 'D' posts, but in order to consider the growing demand from the visually handicapped persons, the Ministry of Welfare, Government of India had directed Standing Committee for identification of jobs in various Ministries / Departments for such persons by an order dated 30.12.1985. The report was submitted by the Committee on October 31, 1986. The Committee prepared a comprehensive list of 416 categories in Group 'A' and 'B' posts. An office memorandum was issued on 25.11.1986 by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training ( in short, 'DOPT' ) providing for preference to be given to the handicapped persons for these posts. This memorandum, however, remained on paper and even when the matter in National Federation of Blind's case (supra) was argued, it was pointed out that this office memorandum for 7 years had remained unimplemented. It is of importance to mention that the Committee had specified that the visually handicapped ( blind and partially blind ) are suitable for appointment for certain categories of Group 'A' and 'B' posts, which are mentioned in para 6 of the judgment. Towards the conclusion of the judgment, there were certain meaningful directions issued by the Supreme Court and it is best to set out the same by reproducing the paragraphs :-
"12. The list of Category 'A' and 'B' posts, identified as suitable for the visually handicapped by the committee, includes number of posts which are filled as a result of the civil services examinations. When there are posts to which blind and partially blind can be appointed, we see no ground to deprive them of their right to compete for those posts along with other candidates belonging to general category.
13. Mr. V.K. Cherian, Under Secretary to Government of India, Ministry of Personnel in his affidavit dated March 10, 1992 filed before this Court has stated as under :-
" If there were Group 'A' and 'B' jobs, which could be filled up by the blind, the same should also be identified. Once the jobs were identified, they could be filled up from among the blind and also other handicapped persons such as deaf and orthopaedically handicapped ... Going by the report of the committee and the posts identified by it, the Union Public Service Commission made the observation that the posts identified as suitable to be held by the physically handicapped persons, particularly those identified for the blind are not such which are required to be filled on the basis of competitive examination conducted by the Commission."
The observations of the Union Public Service Commission as projected by Mr. V.K. Cherian in his above-quoted affidavit do not seem to be correct. After going through the list of the posts identified as suitable for visually handicapped (blind and partially blind) it is obvious that there are number of posts which are required to be filled through the civil services examination and other competitive examinations conducted by the Commission Group 'A' and 'B' posts in the category of Administrative Officers (Secretarial - Senior) and Administrative Officer (Secretarial - Junior) are necessarily to be filed as a result of civil services examination by the Union Public Service Commission. If some of the posts in the India Administrative Service and other Allied Services, as identified by the committee, can be filed from amongst the visually handicapped persons then we see no reason why they should not be permitted to sit and write the civil services examination. We make it clear that once recruited to the lowest level of the service the visually handicapped persons shall not be entitled to claim promotion to the higher posts in the service irrespective of the physical requirements of the jobs. If in the hierarchy of promotional posts it is found by the Government that a particular post is not suitable for the visually handicapped person he shall not have any right to claim the said post.
14. In the light of the above discussion we partly allow the writ petition and direct the Government of India and the Union Public Service Commission to permit the visually handicapped (blind and partially blind) eligible candidates to compete and write the civil services examination which is ordinarily held yearly by the Union Public Service Commission. We further direct that they shall be permitted to write the examination in Braille-script or with the help of a Scribe. There shall be no orders as to costs."
5. The aforesaid observations were a precursor for the enactment of the said Act in 1995, though foundation for the same was laid earlier in 1992 as stated aforesaid. The issue of identification of posts also arose in the year 1995 before the Act coming into force in Nandkumar Narayanrao Ghodmare v. State of Maharashtra & Ors., . The petitioner therein was successful in the examination and was selected to the post of Agricultural Officer Class - II, but was not appointed because of colour blindness. It was found that there were only five posts, which required perfect vision and the Government was directed to consider the case of the petitioner therein for appointment to any post other than the five posts.

6. The Statement of Objects and Reasons of the said Act provide that a suitable legislation was necessary to provide for the following :-
"(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream."
7. So much for the background of the legislation. Now to the facts of the present case.

8.The petitioner has been working with the Ministry of Health, Government of India in Group 'B' (non-Gazetted) post since 1998. The petitioner was appointed to the post after having qualified under the General category and has been working without any impediment or any aid while performing the duties of the said post. Prior to the petitioner being appointed to the said post, the petitioner worked as an Income-tax Inspector, CBDT, Ministry of Finance after qualifying in the Staff Selection Exam with 13th rank under the General category. The petitioner had also qualified in the Uttar Pradesh State Civil Services Examination for the post of a Naib Tehsildar / Administrative Officer under the General category.

9. In the year 2000, the petitioner qualified in this written examination for the Central Civil Services (Mains) Examination, 2000 conducted by respondent No. 2 UPSC and even went through the interview, but was not successful. At the time of the interview, the petitioner also underwent a medical examination conducted by the Medical Board constituted by the UPSC, but was never informed that he suffered from any physical handicapped of low vision. The petitioner was, however, successful in the next year and in May, 2002 was declared as a successful / qualified candidate with a rank of 325 having obtained 1184 marks and on 28.05.2002 received intimation for joining the foundation course. The specific service / post was, however, not allotted to the petitioner, which was to be subsequently done on the basis of his rank in the merit list, eligibility, preference for service given by the petitioner. In order to improve his ranking, the petitioner had appeared in the Preliminary Examinations even for the year 2002 on 19.05.2002 in which he qualified subsequently.

10. The petitioner had to undergo a second medical examination conducted by the Medical Board for the CSE, 2001 and was informed on 12.07.2002 that he was disqualified on account of substandard vision. The petitioner immediately represented against the same on 31.07.2002 and thereafter requested that in view of the stand of the respondents, the petitioner be treated as a disabled person and be accordingly appointed against the suitable vacancy / post, which was required to be identified under the provisions of the said Act. The relevant extract of the said letter is as under :-
"In response to para 3 of your letter - I do agree with the findings of the medical board that my vision is not normal. I am myopic patient since birth. My vision in both eyes is 6/60. Only after receiving this communication from DOPT, I came to know that with this much of vision I fall in the category of disabled.
In this regard I would like to bring the fact in your notice that visually disabled persons are eligible to appear in civil services examination and they are getting some seats reserved for them. Since I am also a visually disabled person and otherwise I am eligible to get selected through disabled category, I request you to kindly consider my candidature against the available seats reserved for disabled., if I am otherwise eligible for selection in that quota.
I am enclosing the medical certificate in support of my claim against the disable quota. I hope your good-self will consider my request sympathetically and will oblige me."
The petitioner enclosed a certificate dated 26.07.2002 from the Office of the Medical Superintendent, Safdarjung Hospital to the following effect:-
"CERTIFICATE Certified that Shri Ravi Kumar Arora, 28 years Male, Eye O.P.D. No.12839/02, has High Myopia Both Eyes. His vision is 6/60 both Eyes. He has visually handicapped of 40% (FORTY PERCENT)."
11.Since the petitioner had cleared the Preliminary Examination and was entitled to appear for the Mains Examination of 2002, the petitioner requested respondent No. 2 UPSC in writing that he may be treated as a disabled person with visually handicapped and be permitted to write the Mains Examination as such. The contents of the said request are extracted as under :-
"I , Ravi Kumar Arora, appeared in Civil Services (Preliminary) Examination-2002 as a candidate belonging to non-disabled category. I have also finally qualified in CSE-2001 and ranked - 325 as non-disabled candidate. But in due course DOPT has informed me that you are medically unfit for all services due to sub standard vision. When I contacted DOPT, they said that you could be considered as visually handicapped candidate.
Sir, I am a myopic person since birth. My vision in both eyes is 6/60. Only after receiving the above communication from DOPT, I came to know that with this much of vision I fall in the category of visually challenged persons.
Sir, as I have already appeared in C.S.(P) Examination-2002 and done well in the exam. Hopefully I will get through. You are therefore requested to change my candidature from non-disabled to disabled category and if I qualify for mains 2002, kindly allow me to appear in main 02 as visually handicapped candidate. Since, I am leading normal life despite of my poor vision, I do not need the help of scribe for any mains examination."
12.The petitioner made a further request vide letter dated 09.08.2002 to the Ministry of Personnel in the following terms :-
"Subject : Civil Services Examination-2001-Change of Category from Non-disabled to disabled.
Sir, I, Ravi Kumar Arora, have finally qualified in CSE-2001 and ranked-325 as non-disabled. But in due course DOPT has informed me that I am medically unfit for all services due to Sub standard Vision.
Sir, I am a myopic person since birth. My vision in both eyes is 6/60. Only after receiving the above communication from DOPT, I came to know that with this much of vision I fall in the category of visually challenged persons.
In this regard I would like to bring the fact in your notice that visually disabled persons are eligible to appear in civil services examination and they are getting some seats reserved for them. Since I am also a visually disabled person and otherwise I am eligible to get selected through disabled category, I request you to kindly consider my candidature against the available seats reserved for disabled. I would like to bring in your kind notice that I have already represented my request to concerned Section in this regard (copy of the same is enclosed for your ready reference).
I hope your good-self will consider my request sympathetically and will oblige me."

13.The request of the petitioner for being accommodated in the handicapped category for the Examination of 2001, the result of which was declared in 2002, was, however, rejected in the following terms :-
"I am directed to refer to your letter dated the 9th August, 2002 on the above mentioned subject and to say that a candidate was required to indicate whether he is a physically handicapped candidate or not in column 23 of the application form for the Civil Services Examination, 2001. In the said column you have mentioned that you are not a physically handicapped candidate. It is further mentioned that para 6 of the Notice issued by the Union Public Service Commission clearly states that no correspondence will be entertained from candidates to change any of the entries made in the application from. In view of this, it is regretted that your request cannot be acceded to."
14.While on the one hand, the request of the petitioner for being treated as a handicapped person was rejected in respect of the Examination held in 2001, the request made by the petitioner vide letter dated 31.07.2002 for the Mains Examination to be held in 2002 was rejected by the letter dated 17.09.2002 on the ground that the concession admissible to blind candidates was not admissible to persons suffering from Myopia. The contents of the said letter are as under :-
"Subject: Civil Service (Main) Examination ,2002 Sir, With reference to your application for above captioned examination and your letter dated 31.07.2002 requesting the Commission to treat you as a visually handicapped candidate, I am to say that the medical Certificate submitted by you in support of your claim is not in the prescribed proforma. Your attention is also invited to Note (4) under Appendix - I, Section-II (B) of the Rules of this examination, a coy of which was supplied to you along with the Detailed Application Form, which reads:
NOTE (4): The concession admissible to blind candidate shall not be admissible to those suffering from Myopia". 
In the light of above you may like to reconsider your request and thereafter submit fresh visually handicapped certificate in the proper prescribed proforma. (Copy of format enclosed)."

15.The petitioner submitted a fresh visually handicapped certificate in the prescribed proforma duly certified by the Doctor from Safdarjung Hospital under the cover of the letter dated 25.09.2002. But this request was also rejected vide letter dated 04.10.2002 in the following terms :-
" With reference to your candidature for the above mentioned examination and your letter dated 25.09.2002 I am directed to say that according to the Note (4) of the rules of the examination sent to you along with the detailed Application Form, the concession admissible to blind candidate is not admissible to those suffering from Myopia. Therefore, handicapped candidate cannot be acceded to."

16.The result of the aforesaid communication was that the petitioner was neither being treated under the handicapped category as a disabled candidate nor as a normal candidate and the petitioner addressed a letter dated 09.10.2002 to the UPSC as under :-
"In reference to your above letter, I would like to request you to allow me to appear in the CS(M) Exam-2002, even if previously, since the main Exam-02 is not for away and I have little time to represent my case.
Sir, it is hocking and surprising for me that I am neither a normal candidate (as per DOPT) nor a disable candidate (as per UPSC).
However, again I am requesting you to permit me to appear in the CS(M) Exam-2002."

17.The petitioner faced with the aforesaid position filed the present writ petition claiming a dual relief to write the Examination of 2002 in the category of partially blind / low vision and in the alternative for quashing the letter dated 12.07.2002 declaring the petitioner as unfit for selection on the ground of low vision. The petitioner was permitted in terms of the interim orders dated 22.10.2002 to appear in the Examination to be held for the said year as the visually challenged person. At the time of passing the interim order, the Court took notice of the Gazette notification dated 15.12.2001 specifying the category of 40% visually disability as category I. It may be noticed that the petitioner suffers from the visually handicap of 40%. In the subsequent order dated 25.04.2003, it is noticed that though the petitioner had appeared in the category of disabled persons, he unfortunately could not qualify the Mains Examination and, thus, the petitioner claimed the right to be appointed to the post meant for disabled persons for the year 2001.

18.The Examination for which the petitioner appeared in 2002 in the category of a visually challenged person was actually illusionary as it transpired subsequently that the petitioner did not qualify on account of the fact that there were, in fact, no quota which had been carved out for the said category. The result was that while the petitioner was successful for the Examination of 2001 under the General category, he was denied appointment on the ground of visually impairment while, on the other hand, for the Examination held in 2002 for which he appeared as a visually challenged candidate, there were no basis identified or quota carved out.

19.In order to assist the Court, by subsequent orders, the Commissioner of Disabilities appointed under the provisions of the said Act was also issued a notice to effectively participate in the proceedings.

20.The pleadings filed in this petition have brought to light some shocking facts. In response to an unstarred question in Parliament answered on 05.08.2003 enquiring into the details of visually impaired candidates selected / recommended on the basis of the CSE during the last four years, the DOPT answered that no candidate applying as a visually impaired candidate had been recommended during the said period of last four years. On further information being sought by this Court, it has been admitted by learned counsel for the respondents that out of 26 services of Group 'A' and 'B', no post had been identified for a visually impaired candidate during this period of time. In fact for the year 2001, six posts had been identified under the said Act - two each for the Indian Information Services Group 'A'; Indian Post and Telegraph, Accounts and Finance Services Group 'A'; and Armed Forces Headquarters, Civil Services Group 'B', but even these were not for a visually impaired candidate.

21.Learned counsel for the Chief Commissioner for Persons with Disabilities brought to notice of this Court that proceedings had been initiated by one Mr. Umesh Puranik under the said Act, which was registered as Case No.1247 of 2001. The grievance of Mr. Puranik was that for the conduct of the CSE, 2001, neither advertisement nor the rules for the Examination had prescribed as to which post in the 26 services were suitable for physically disabled persons and required the same to be published. This case was disposed of on 18.08.2003 and some interesting facts, which emerged during the said proceedings, are relevant for the present controversy. The UPSC washed its hands off the issue saying that they only conduct the examination strictly in accordance with the rules framed and notified by the DOPT, Government of India as notified in the Gazette of India. The Narsimhan Committee in 1996 had given its report suggesting that all Government Ministries / Departments should identify the posts for persons with disabilities, but none of the Ministries / Departments had done so till the Examination for the year 2001. For the Examination of 2001, only three services had identified the six posts referred to above. The said Ministry also expressed his helplessness since the relevant Ministries / Departments are to place indents along with format and the concerned Cadre Controlling Authorities did not provide information. In this behalf, reference was made to the office memorandum of 10.07.2003 of the DOPT referring to the proceedings in the case of Mr. Umesh Puranik. The office memorandum requests the various Ministries to specify the post(s) / vacancy(ies), if any, reserved for the physically handicapped persons and a special mention has been made whether any post is reserved for person(s) suffering from blindness or low vision. Information was also sought that in case no reservation for physically handicapped persons for that particular year is there, whether some posts had been identified for such persons and if so, the category for which the post(s) had been identified along with their physical / functional requirements.

22.The Ministry of Social Justice and Empowerment vide a notification dated 31.05.2001 published in the Gazette of India No. 178 dated 30.06.2001 had identified the posts in Group 'A', 'B', 'C' and 'D' for persons with disabilities based on the recommendations of the Expert Committee constituted for the purpose. Almost all the administrative jobs in Group 'A' and 'B' had been identified as suitable for persons with disabilities in the said notification, though the services as such had not been mentioned. The Chief Commissioner, thus, noted that it could either be the concerned Cadre Controlling Authority or an independent Expert Committee, which could decide whether a particular service is suitable for persons with disabilities or not. Thus, it noted that since majority of the posts are to be held by officers of different services basically having administrative nature of work, most of them would be suitable for such persons with disabilities. A direction was issued for all the Cadre Controlling Authorities to take a view and intimate the vacancy position to UPSC for Civil Service Examination. In case the Cadre Controlling Authority considers the service with which it is concerned is not suitable for persons with any kind of disability, exemption would have to be obtained under Section 33 of the said Act and the DOPT was directed to monitor and ensure that the concerned Cadre Controlling Authorities complete the identification before November, 2003 and reservation of vacancies are made in the notification for CSE of 2004.

23.The aforesaid direction, however, resulted in another order being passed on 27.08.2003 by the Ministry of Social Justice and Empowerment for identifying the Group 'A' and 'B' Services where posts can be reserved. It was stated in the said office order that no post in Group 'A' and 'B' Services of the Government of India had yet been reserved for persons with disability and the Ministry being the 'Appropriate Government' as per the meaning assigned to clause under Section 2(i) of the said Act, it was deemed expedient to conduct a review with all administrative departments to identify the services in which reservation for persons with disabilities can be given.

24.In order to appreciate the disability, which the petitioner is stated to be suffering, it would be useful to refer to some of the provisions of the said Act. Section 2(i) defines 'disability' to mean blindness, low vision, etc. Thus, low vision is specifically stipulated as a disability. A person with low vision is defined under Section 2(u) as under :-
"2(u) - "person with low vision" means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable o using vision for the planning or execution of a task with appropriate assistive device."
A person with disability is defined under Section 2(t) of the said Act as under :-
"2(t) - " person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority."
The effect of reading of the aforesaid provisions is that the petitioner, who suffers from low vision of 40%, would qualify as a person with disability of low vision.

25.Section 32 of the said Act provides for identification of posts and Section 33 of the said Act provides for reservation of the posts. Section 36 thereof provides that in case a vacancy is not filled up due to non-availability of a suitable person with disability, the vacancy has to be carried forward in the succeeding recruitment year. The relevant provisions are as under :-
" 32. Identification of posts which can be reserved for persons with disabilities. - Appropriate Governments shall -
(a) identify posts, in the establishments, which can be reserved for the persons with disability;
(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the development in technology."
" 33. Reservation of posts. - Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from -
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
" 36. Vacancies not filled up to be carried forward. - Where in any recruitment year any vacancy under section 33 cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it ay first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government."

26.It is also apparent from reading of the aforesaid provisions that if any particular service or establishment is to be exempted from the provisions of the said Act, the appropriate Government can do so by notification. It is not disputed that no such notification has been issued. Surprisingly, it is stated that the Indian Administrative Services ( in short, 'IAS' ) sought exemption from application of the said Act, but no notification has been issued for the said purpose.

27.It is difficult to fathom how administrative jobs including the IAS can be exempted from granting reservation under the said Act. It is possible the reflection of the attitude of a 'BURRA SAHEB' from the period of the British Raj.

28.The issue of 3% reservation in Group 'A' Services also forms part of the Annual Report for 2000-2001 of the Office of the Chief Commissioner for Persons with Disabilities. The problem was specified in para 8 of the report as under :-
" 8. 3% RESERVATION IN GROUP 'A' CIVIL SERVICES In employment notice no. 04/2000 dated 25.12.99, Union Public Service Commission advertised for Group 'A' posts belonging to 25 all India services. There was a clear reference to the provision of reservation for SC, ST and other backward classes. However, the statutory 3% reservation in jobs was not created for. Department of Personnel & Training (DOPT) is a nodal department through which the establishments in Government of India route their requisitions for filling up vacancies. Subsequently, the UPSC conducts recruitment. The recruitment rules for various services are framed taking due consideration of the Constitutional, legal and administrative provisions. There were two main issues involved in the present case:-
Whether as per Section 33 of the Disabilities Act, the provision of 3% reservation would be applicable on all the 25 services and the posts on which the recruitment exercise by UPSC was being initiated.
Whether as per Section 32 of the Persons with Disabilities Act, 1995, the posts which were identified as suitable to be held by one or the other category of persons with disabilities by the appropriate government since the reservation as per Section 33 has to be effected on the identified posts for disabled persons in accordance with the provisions of Section 32.
The respondent (DOPT) in its written reply dated 11.12.2000 stated that " reservation for persons with disabilities in Group A & B posts among the services recruitment to which is made through Civil Services Examinations is applicable only in respect of posts which have been identified as such by the respective cadre controlling authorities. As none of the post among the services included in the scheme of the civil services examinations as intimated by the concerned cadre controlling authorities, has been identified as suitable for being manned by a handicapped person, hence it has not been possible to extend the reservation for handicapped persons to the civil services examination 2000 notice for which has been issued on 25.12.1999"
The stand taken by respondent was examined and found that as per Section 32. it is the appropriate Government who is obliged to update and identify suitable posts for persons with disabilities. Inter departmental committee for this purpose has been constituted under the Chairmanship of Additional Secretary, Ministry of Social Justice and Empowerment. This committee in its report mentioned clearly that " the establishments covered under the Persons with Disabilities Act 1995 will have the discretion to identify post in addition to the posts already identified by the appropriate Government. However, no establishment on its own discretion can exclude any post out of the purview of identified post for effecting reservation under Section 33 of the Act. In case any establishment feels that it required exemption from filling up a vacancy against an identified post by the appropriate Government the establishment under 33 of PWD Act, 1995 can approach inter departmental committee constituted for the purpose to look into the matter regarding exemption from Section 33 of the PWD Act. Other than this no authority has the jurisdiction to accord exemption from filling up a vacancy against an identified post for persons with disabilities.
Similarly, the Expert Committee of 1986 explicitly mentioned that the posts identified by them are illustrative and not exhaustive. It is pertinent to recognize that the respondent itself was instrumental in revalidating those Group A and B posts which were identified by the Government for persons with disabilities in 1986. In the office memorandum no. 36035/14/98-Estt.(Res.) dated 28.8.1988, the respondent stated that " the existing identification done in the year 1986 shall remain valid, till the same is modified by the Government on the recommendation of the Expert Committee."
The perusal of the revalidated list of identified posts reveal that a number of posts belonging to various all India services were already found suitable for some or the other category of disabled. A table showing posts and the suitability of the disabled is given below :-
Recruiting Ministry / Department Name of the service(s) Name of post at entry point Post identified / category of disabled Department of Telecommunication Indian P&T Accounts & Finance Service Assistant Chief Accounts Officers Assistant Chief Accounts Officer - D, PD, BL, OA, OL, BH Ministry of defense (Finance Division) Indian defense Accounts Service Assistant Chief Accounts Officers Assistant Chief Accounts Officer - D, PD, BL, OA, OL, BH Railway Board Indian Railway Account Service Assistant Chief Accounts Officers Assistant Chief Accounts Officer - D, PD, BL, OA, OL, BH Department of Expenditure Indian Civil Accounts Service Assistant Chief Accounts Officers Assistant Chief Accounts Officer - D, PD, BL, OA, OL, BH D.O.P.T.
Central Secretariat Service Section Officer Administrative Officer Assistant Administrative Officer and others - OL, BLA, OA, PD, PB, B Ministry of Information and Broadcasting Indian Information Service Information Officer, News Editor Information Officer - PB, BO, A, OL and Assistant Information Officer - PB, BO, A, OL News Editor - PD, BLA, OL, OA, PB Ministry of Railways Indian Railway Personnel Service Personnel Officer Personnel Officers - OL, BL, OA, B, PB In view of the fact that as per Section 32 a number of posts are to be filled through Civil Services Examination for Government of India establishments were already featuring on the revalidated list of suitable jobs for persons with disabilities, applicability of the provision of 3% reservation for the disabled as per Section 33 got established. It become abundantly clear that it is the appropriate government as notified by the DOPT in the shape of inter departmental expert committee is the one who undertake the job of identification of posts in Government of India though the establishments on their own initiative can identify posts in addition to the posts already identified and included in the list of identified jobs. Therefore, the role of cadre controlling authorities in determining the suitability of posts already identified and notified by the Government for effecting reservation on 3% vacancies for the disabled could not be over-emphasized beyond the statutory provisions. In the light of the over circumstances and facts the Chief Commissioner, Disabilities recommended Secretary, DOPT to advise all cadre controlling authorities, requisitioning Ministries, Departments, who participate in the Civil Services Examination to :-
(a) Cadre 3% reservation as per Section 33 of Disabilities Act 1995; and
(b) Have the backlog calculated w.e.f. 1.2.1995 with a view to get it cleared in the recruitment exercise."

29.The violation of the mandate as contained under Section 33 of the said Act for making reservation has been emphasized by the petitioner in the additional affidavit dated 10.08.2003. It has been stated therein that the petitioner had obtained 940 marks for the Examination held in the year 2002 while the cut-off for the General category was 979. However, for the said year, as noted above, no reservation was made for a person with blind / low vision in violation of the mandate of Section 33 of the said Act. It was, thus, not a case where somebody, who was senior in merit to the petitioner, was appointed. In fact from 1998 onwards, for which there is date available, not a single person has been appointed from the blind / low vision category.

30.The appointment of a fresh Committee in the year 2003 also appears to be a ruse since an earlier order dated 02.07.1999 of the Ministry of Social Justice and Empowerment had constituted an Expert Committee to identify / review posts in Category 'A', 'B', 'C' and 'D' similarly. The Committee had made its recommendations including identification of posts for visually handicapped. This material has been placed on record by the petitioner. There is no answer as to why the recommendation of this Committee has not been implemented and now another Committee has been formed in the year 2003. In my considered view, the object is clear - to see that the said Act remains only a paper enactment.

31.The material placed on record shows that there were 417 posts in the year 2001 and as per the mandate of Section 33 of the said Act, at least 4 posts would qualify for reservation under the category of blinds / low vision. However, only 5 posts were filled up from the loco motor category while no post was filled up from the category of blinds / low vision and hearing impairment.

32.The aforesaid attitude of discrimination against persons with disabilities forms part of (2004) 14 'INTERIGHTS' Bulletin, i.e., an International Human Rights Law Centre, which focuses on protection of human rights through legal remedies. It has been observed in the Bulletin that one-tenth of the world population lives with some kind of disability and such persons suffer denial of their basic human rights in one form or the other. It is also observed "in addition to being disabled by institutions, social policies and attitudes, often the very laws intended to protect and uphold our human dignity, undermine the enjoyment of disabled people's rights".

33.The discussion builds up on the violation of human rights angle of such persons and the factum of enactments by certain countries since the adoption ten years ago by the United Nations General Assembly of the Standard Rules for the Equalisation of Opportunities for Persons with Disabilities. These Standard Rules 22 in nos. are divided into three sections dealing with (i) pre-conditions for participation; (ii) target areas for equal participation; and (iii) implementation measures. The forth section describes the monitoring mechanism. Such persons with disabilities are not to be treated as a recipient of some charity, but have a right to be treated on equal footing with other persons. Equal opportunities of employment are an integral part of the Standard Rules adopted by the United Nations.

34.One of the papers in the Bulletin deals with the experience of India and legal protections for person with disabilities authored by Ms. Anuradha Mohit and Mr. Santosh K. Rungta. The concept of equality under Article 14 of the Constitution of India ( in short, 'the Constitution' ) and the mandate against discrimination under Articles 15 and 16 of the Constitution lays the foundation for the equal treatment of persons with disabilities. Article 16 of the Constitution encourages the State to frame laws for reservation of appointments and in this behalf, a reference has been made to judgment in Indra Sawhney & Ors. v. Union of India, (1992) Supp (3) SCC 217, which considered the legality of reservation inter alia in favor of the disabled persons, which was not explicitly covered under Article 16 of the Constitution. The object of Article 16 of the Constitution being to put persons on equal plain, the Act is in furtherance of this object in so far as the persons with disabilities are concerned.

35.In so far as application of the widely accepted principles to the present facts of the case are concerned, the petitioner has stated on affidavit that out of 417 posts for the Examination of 2001 about 405 posts are filled up and further 3 candidates wrote the Examination again for the year 2002 and switched over to a different service in the year 2002. As noted above, no candidate with any visual disability was appointed as even post had not been identified.

36.In so far as the Examination for the year 2002 is concerned, the petitioner was permitted to appear in the category of visually challenged persons. The petitioner was unsuccessful because there was no post reserved in the said category. Learned counsels sought to explain away the letter of the respondents dated 04.10.2002, which stated that the concession admissible to a blind candidate is not admissible to the petitioner, who is suffering from Myopia and, thus, the petitioner cannot be treated as a visually handicapped candidate. The explanation given was that this was in reference to the requirement of providing a scribe. This explanation cannot be accepted. The petitioner in his letter dated 31.07.2002 had clearly stated therein " I do not need the help of scribe for my Mains Examination". The communication dated 17.09.2002 of the respondent was in response to the said letter of 31.07.2002 stating that the concession admissible to a blind candidate was not admissible to those suffering from Myopia and requesting the petitioner to apply in a particular format. The petitioner vide letter dated 25.09.2002 sent the relevant format in response whereto the communication dated 04.10.2002 was addressed to the petitioner. Thus, the respondents clearly took the stand that the petitioner having Myopia could not be treated in the reserved category.

37.The aforesaid explanation is being given by the respondent in view of the undisputed position and the admission of learned counsel for the respondent that the petitioner with a 40% disability would be a candidate, who would be covered under the provisions of the said Act.

38.The lack of success of the petitioner in the 2002 Examination was on account of the absence of any post. However, in my considered view, the same is not of a great significance in view of the fact that the petitioner was admittedly successful in the Examination for the year 2001 in the General category. It was only this disability of vision, which ultimately prevented the petitioner from being appointed to the post.

39.It can by no stretch of imagination be said that, on the one hand, the petitioner is not entitled to any reservation and, on the other hand, he is not eligible to be appointed even as a General candidate. The petitioner has been performing functions during his course of employment with the Government, though not for a Category 'A' post. There is no problem in the petitioner performing the functions in the Ministry of Health where he is employed at present in a Group 'B' post. Prior to that, the petitioner worked as Income-tax Inspector, CBDT.

40.The question of the petitioner applying under the category could have arisen if on any previous occasion, the same would have been treated as an impediment. This was not so for the year 2000 even when the medical test was done. Be that as it may, once it was detected that the petitioner suffered from visual impairment, the case of the petitioner could have been considered under the 1% reserved category.

41.It is no answer to be given by the respondent that the petitioner did not apply under the category of visually impaired person. There was no specific column for the said purpose except a general column for handicapped persons. There was further no post identified or reservation made for such visually impaired persons. The result in the case of the petitioner would have been same, even if the petitioner had applied in the said category as was in the case of 2002 when also no post had been reserved.

42.The petitioner without any aid appeared in the written examination and was successful. The petitioner even appeared before the Experts in the Interview Board and no infirmity was found and he was found meritorious by the said panel. To deny the benefit of appointment to the post would be a travesty of justice. The unfortunate part is that the Committee appointed in terms of order dated 02.07.1999 to identify the posts had identified various posts for even visually impaired persons of Group 'A' and 'B', but even that was not given effect to and the new Committee has been set in the year 2003 only to some how evade the effect of the said Act. It is, however, not necessary for this Court to go into in depth of the larger issue since in the present proceedings one is concerned with the relief to be granted to the petitioner as it is not a public interest litigation. It has been stated at the Bar by learned counsel for the parties that as per the rank of the petitioner, the petitioner would have been entitled to the India Postal Services or possibly a superior Services. I see no reason why the petitioner should not be directed to be appointed to the post as per merit of the petitioner since the respondent has failed to carry out the mandate of the reservation for visually impaired persons of 1% and there is no other candidate over the seniority of the petitioner in the said category. In terms of the total strength, four seats were liable to be reserved for the category to which the petitioner belongs. The process of once again the respondents trying to identify posts, which they failed to do despite eight years having elapsed from the said Act coming into force, cannot be awaited for the petitioner to be appointed to the post. The petitioner has already suffered enough.

43.I am, thus, of the considered view that the petitioner is entitled to be appointed to a post in the category 'A' Services as per his merit and seniority based on the rank obtained by the petitioner for the Examination of 2001 and the petitioner be so appointed to the Indian Postal Services or an equivalent Service. The petitioner is also liable to be treated as having joined in service along with his batch-mates for purposes of determination of his seniority, monetary emoluments and promotions. However, in so far the back wages and other monetary benefits for the past are concerned, since the petitioner has been working in a Group 'B' post, the petitioner would be entitled to all these monetary benefits for the past also less the amount received by the petitioner in the course of his employment. The arbitrariness or the conduct of the respondents is such that it cannot be said that the petitioner should not be entitled to these monetary benefits not having worked on the post. If the petitioner has not so worked, it is the direct result of the failure of the respondents to carry out the mandate of the Parliament as envisaged under the said Act and the petitioner cannot be denied the benefit of the same.

44. A writ of mandamus is issued directing the petitioner to be appointed to the post in pursuance to the Examination of Civil Services, 2001 with all the consequential benefits of merit, seniority, promotion and monetary emoluments for the past and future as mentioned aforesaid and the needful be done by the respondents within a maximum period of one month from the date of this order.

45.The petitioner shall also be entitled to costs of the present proceedings quantified at Rs.20,000/- to be borne by respondent No. 1.

CITATIONS in above order

The Displaced Persons (Claims) Supplementary Act, 1954
Article 16 in The Constitution Of India 1949
Article 14 in The Constitution Of India 1949
Indra Sawhney & Ors vs Union Of India & Ors on 8 August, 1991
National Federation Of Blind vs Union Public Service Commission ... on 23 March, 1993
Union Of India & Ors. vs Sh.Ashok Kumar Arora on 26 April, 2011
Ms. Ira Singhal vs Department Of Personnel And ... on 25 February, 2014
Nishant. S. Diwan vs High Court Of Delhi Through ... on 25 March, 2014
Ashwani Gupta vs Government Of India And Ors. on 7 January, 2005
Ms. Anubha Bhargava vs Union Of India (Uoi) And Ors. on 4 December, 2007

Thursday, February 13, 2003

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.

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


Thursday, December 17, 1998

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.

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

Friday, July 28, 1995

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%
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    65%
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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.