Petitioner challenged the Tribunal's order allowing a hearing impaired candidate's application for allocation to IAS against reserved backlog vacancies. Discussed prior precedents on reservation implementation and service allocation principles.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 08.02.2019
UNION OF INDIA ..... Petitioner
Through: Mr. Thakur Prasad Singh, Sr. Central Govt. Counsel for UOI.
versus
SH. RAVINDRA U GARKAL ..... Respondent
Through:
CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MR. JUSTICE A.K.CHAWLA
J U D G M E N T
VIPIN SANGHI, J. (ORAL)
CM APPL. 5914-5915/2019
Exemptions allowed, subject to all just exceptions.
W.P.(C) 1308/2019 & CM APPL. 5913/2019 (for stay)
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Application preferred by the respondent, and dismissed the Review Application preferred by the petitioner.
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“Insofar as IAS is concerned, 785 vacancies were filled from 1996 to 2006. Thus during this period eight number of vacancies were to be reserved for visually handicapped persons. As against eight, only one person belonging to this category was given appointment in the year 2005, leaving seven posts which could be filled in the year 2006. However, in that year only one post from this category has been filled.
The applicant was at serial number five and was a successful candidate. Thus when sufficient numbers of successful candidates were available against the said reserved posts, we fail to understand as to why the requisition for filling up only one post was sent by the DOP&T to the UPSC.”
The Court took note of DoP&T’s O.M. No. 36035/3/2004-Estt. (Res) dated 29.12.2005, as per which the identification of posts was done. This O.M., the Court observed stated in no uncertain terms that such reservation would start from the year 1996. The Division Bench observed in respect of the said O.M. :
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(emphasis supplied)
The relief granted by the Division Bench was the following :
“In view of the aforesaid, this writ petition is allowed. The order dated 07.04.2008 passed by the Central Administrative Tribunal is hereby set aside. Consequently, OA 1397/2007 preferred by the petitioner before the Tribunal stands allowed. Since clear vacancy is available to which the petitioner can be accommodated on the basis of his position in the merit list, Mandamus is issued to the respondent to offer him appointment to the said post by issuing appropriate appointment letter within six weeks from today.
In case the vacancies are filled up by diverting the same to the other categories, It will be for the respondents to carry out necessary exercise for restoring these vacancies in the category of visually handicapped persons and offer the petitioner appointment as such. The petitioner shall also be given his seniority along with his batch mates who took the examinations in the year 2006 and his pay shall be fixed notionally on that basis. However, the actual pay shall be given to him from the date he joins. The petitioner shall be entitled to costs of Rs.25000/- and respondent No.1 shall pay the costs to the petitioner.”
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“17. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.”
(emphasis supplied)
“10. To sum up on the basis of above discussion:
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(a) the Disabilities Act provides for reservation for physically handicapped to the extent of three per cent, one per cent each for visually handicapped, hearing impaired and persons with loco motor disability and cerebral palsy;
(b) the reservation would be applicable from the year 1996, regardless of identification under Section 32 of the Disabilities Act;
(c) the candidates selected on their own merit would not count among the reserved category and would be counted as unreserved category as per the DOP&T’s OM of 29.12.2005;
(d) vacancies not filled in a particular year would be carried forward and would lapse if not filled up for the next two years;
(e) reservation was not made under Section 33 of the Disabilities Act and, therefore, the question of carry forward and lapsing of posts does not arise;
(f) those selected on their own merit would not be counted among the reserved category candidates;
(g) the persons belonging to the non-disabled category who have secured lesser marks than the persons belonging to the disabled category cannot be recommended for appointment disregarding the claim of the candidates of disabled category on the basis of the posts available for them; and
(h) advantage of reservation has to be given to the physically handicapped candidates after working out the number of vacancies available on the basis of total number of posts recommended and the backlog vacancies.
11. The OAs numbers (mentioned in paragraph 3(i) and 3(ii) ) are allowed. The First Respondent is directed to carry out an exercise to work out the backlog vacancies in different services and the vacancies of the year 2008 to consider allocation of the Applicants to suitable services as per their choices . Since this would entail consultation with cadre controlling authorities, we are giving six months time to complete this exercise. The allocation of services to the
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Applicants would be from the date of allocation of services to the candidates of CSE 2008. The allocation would be on notional basis and the Applicants would not be entitled to back wages, but it would count towards seniority and calculation of increments . If no service is decided to be allocated to any one of the Applicants, detailed, cogent and logical reasons would be recorded in a speaking order, which the Applicants would be at liberty to challenge in a fresh proceeding before the appropriate forum. The Applicants in OAs numbers 2717 and 2369 of 2009 would be considered for allocation to IAS within eight weeks from the receipt of this order.
12. We cannot give any relief to the candidate in OA number 1545 of 2009, who appeared in the CSE 2005. The reasons for condoning delay that the Applicant came to know about the judgement of the High Court in Ravi Prakash Gupta (supra) only in April 2009, cannot be accepted. The limitation before the Tribunal is counted as per the provision of Section 21 of the Administrative Tribunals Act, 2005, which reads thus:……………………..”
(emphasis supplied)
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Application, along with three others was disposed of on 30.05.2012. The Tribunal directed the UPSC to undertake the exercise-in order to determine as to how many candidates, on the basis of their ranking, deserve to be selected on their own merits in CSE 2008 and other examinations. The Tribunal further directed that they should be adjusted against unreserved vacancies on their own merit on the basis of Office Memorandum dated 29.12.2005 and, thereafter, the rest of the candidates belonging to the visually impaired category must be adjusted against the reserved category vacancy. The said decision was assailed before this Court vide W.P.(C) 4902/2013, Union of India v. Pankaj Kumar Srivastava & Anr. The said writ petition was dismissed by the Division Bench on 11.10.2013. The issue raised by the Union of India in the said writ petition was that the principle of general merit evolved by judicial pronouncements and incorporated in the OM dated 29.12.2005, was incapable of application in respect of candidates belonging to the physically handicapped category, as candidates belonging to the physically handicapped category are not subjected to the same medical standards as are made applicable to candidates belonging to the General Category. It was the case of the Union of India that candidates with physical handicap are granted relaxation of time in the examination process and, thus, they could not be adjusted against the General Category vacancies on the basis of their merit. While dismissing the writ petition, this Court observed as follows:
“15. The short point for consideration which therefore arises in the present writ petition pertains to the entitlement of the applicants before the Tribunal, for being considered
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against the vacancies, which become available on application of the principle of general merit. There cannot be two opinions about the applicability of the said principle in the light of the Office Memorandum dated December 29, 2005 and April 26, 2006 issued by the petitioner itself . The same is the situation reflected in the mandate under Rule 17 of the CSE Rules 2008 noted above. Thus it is not possible for the petitioner to contend before us that there is an error in the order of the Tribunal in issuing directions to consider the entitlement of the applicants on the basis of said principle. We affirm the view taken by the Tribunal with regard to its observation that grant of the facility of scribe and extra time of 30 minutes in the examination to the visually impaired candidates does not amount to relaxation of standards in their favour .
16. The non-fulfilment of the medical standard prescribed for the general candidates by the physically handicapped candidates as per the CSE Rules has not been debated before the Tribunal and there is no finding in respect thereof. However, as pointed out by Sh.Naresh Kaushik, learned counsel for the UPSC, the petitioner i.e. the Union of India has not issued the consequential amendments contemplated by Rule 17 for reasons best known. (Shear lethargy of the executive). The omission on the part of the executive i.e. DOPT which is the Nodal Department to issue Office Memorandum/Executive Instructions on matters pertaining to the Central Service has created a situation wherein the benefit is sought to be given on the one hand through the issuance of Office Memorandum(s) dated December 29, 2005 and April 26, 2006, and stands taken away by the other hand as a result of the inaction to issue the consequential amendment contemplated by Rule 17 of the CSE Rules, 2008.
17. We are constrained to observe that the petitioner has been remiss in this regard and has itself caused a situation, whereby the entitlements which ought to have been available
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to the differently abled persons as early as on February 07, 1996 (the date of the commencement of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) are being denied to them till today. The situation points out to a grim scenario which is the creation of the petitioner itself. It is pointed out at the cost of repetition that the realization of the rights in favour of the differently abled persons has to pass through similar obstacles which had to be removed by the Courts of law through the judgment in Ravi Prakash Gupta’s case (supra). Be that as it may, the benefit of omission on the part of the petitioner cannot be allowed to go in the favour of the petitioner for the purpose of assailing the impugned order of the Tribunal. Instead, the petitioner ought to have taken necessary steps to issue consequential amendments to fully operationalise the Rules by incorporating the principle of general merit for the purpose of making available the advantage to the differently abled persons resulting from their success in the exam on the basis of general merit. In the absence of an operational provision as contemplated by Rule 17, it is not feasible for the UPSC to make recommendations on the basis of the said principle, since the UPSC has to conduct the examination and make its recommendations on the basis of rules notified by the petitioner itself. However, the petitioner would be obliged to devise a mechanism to give effect to the law. We reiterate. The petitioner cannot raise any grievance which emanates as a result of inaction by the petitioner itself.
18. Under the circumstances, we do not find any error in the impugned order passed by the Tribunal, and we affirm the same. But, in the light of the fact that the consequential amendment in Rule 17 has not been issued by the petitioner we direct that the needful be done by the petitioner expeditiously and in any event not later than within four months from the date of this decision. We also direct the petitioner to apply its mind with regard to the fulfilment of
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the medical standards by the differently abled persons and issue appropriate guidelines in this regard, since Sh.S.K.Rungta, learned senior counsel appearing for the party impleaded had pointed out that the physical standards to be fulfilled by the differently abled persons have to be laid down separately and the medical standard for the general candidates cannot be made applicable to them.
19. Since the matter pertains to a very important issue concerning differently abled persons who have struggled to avail equal opportunities in the matter of employment, we are constrained to direct the Secretary DOPT to personally oversee the exercise with required seriousness and urgency to ensure that the persons of the differently abled category are not unduly deprived the benefits which have been made available to them under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
20. On the subject of whether the applicants before the Tribunal who were allowed a scribe and were provided 30 minutes extra time to write the paper were granted the benefit of a relaxed standard, we find that the CSE Rules provide as to what would constitute the relaxed standards and they are:- (i) Additional number of attempts allowed to certain reserved categories including persons suffering with disabilities in terms of Rule 4 of Civil Service Examination Rules; (ii) Relaxation in upper age limit in terms of Rule 6 of Civil Service Examination Rules; and (iii) Relaxation of minimum qualifying marks for persons with disabilities as prescribed in Rules 15 & 16 for persons with disabilities. Thus, the Rule itself envisages that allowing a scribe and providing extra time for writing the answers would not be amounting to availing a relaxed standard. This being so, the very foundation of the challenge has no peg to anchor itself on to.”
(emphasis supplied)
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“3.7.1 It is submitted that as per roster, since in the series of 100 vacancies, 1st vacancy is reserved for VI category, 34th vacancy is reserved for HI category and 67th vacancy is reserved for LDCP category . Accordingly, it was circulated that if there had been 3% reservation to PH candidates further divided as 1% reservation for the VI persons, 1% reservation for the HI persons and 1% reservation for the LDCP persons, from Civil services Examination 1996 to Civil services Examination 2009 (as in above para), the 12 candidates would have been recommended in VI, 12 in HI and 11 in LDCP category.”
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The Petitioner stated in para 3.9 as follows:
“3.9 It is submitted that against the backlog of vacancy, the service allocation was made in accordance with the civil services examination Rules and principles mentioned in para 12.3 above. The details of the allocation in case of VI candidates’ (Table;-1), HI Candidates (Table-2) and LDCP candidates (Table-3) are under”:-
Table-2 is relevant for our purpose, and the same reads as follows:
Table-2:HI category
| S.NO. |
Rank |
Name |
Service allocated earlier CSE-2006 |
Proposed service |
Remark |
|---|---|---|---|---|---|
| 1. | 471 | NIRANJAN KUMAR |
IAS | IAS _No _ pro the has allo serv pref |
change is posed as candidate been cated ice of 1st erence |
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| along with the CSE candidates |
|||||
|---|---|---|---|---|---|
| 2. | 472 | POOJA SWAROOP |
IRS(IT) | IAS | If he get IAS(01), he would release one vacancy in IRS(IT) |
| 3. | 473 | SURESH CHAND MUKERIA |
IRS(C&CE) | IAS | If he get IAS(02), he would release one vacancy in IRS(C&CE) |
| 4. | 474 | ANUBHAV SINGH |
AFHQ | IAS | If he get IAS(03), he would release one vacancy in AFHQ |
| CSE-20 | 07 | ||||
| 1. | 628 | ANIL DHINGRA |
IAS | IAS | No change is proposed as the candidate had been allocated service of 1st preference along with the other CSE candidates |
| 2. | 629 | *ANUBHAV SINGH |
IRS(IT) | ------ | Already proposed to be allocated |
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| IAS on the basis of CSE-2006. He would release one vacancy in IRS(IT) |
|||||
|---|---|---|---|---|---|
| 3. | 630 | K. MANORANJAN NAYAK |
ICAS | IRS(IT) | Since he is fully deaf |
| 4. | 631 | BHOPAL SINGH |
IRS(IT) | IAS | If he get IAS (04), he would release one vacancy in IRS(IT) |
| 5. | 632 | RAHUL KAUSHIK |
IPoS | _IRS(C&CE) _ | Since he is fully deaf |
| 6. | 633 | N S SHASHIDHARA |
IRS(IT) | IAS | If he get IAS (05), he would release one vacancy in IRS(IT) |
| 7. | 634 | *SURESH CHAND MUKERIA |
No allocation |
No allocation |
Already proposed to be allocated IAS on the basis of CSE-2006 |
| 8. | 635 | SUNDER LAL | IRS(C&CE) | IAS | If he get IAS (06), he would release one vacancy in |
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| IRS(IT) | |||||
|---|---|---|---|---|---|
| 9. | 636 | RAVINDRA U GARKAL |
IRS(C&CE) | IAS | If he get IAS (07), he would release one vacancy in IRS(IT) |
| 10. | 637 | SUBIR KUMAR CHATTERJEE |
IRAS (4) |
IRS(IT) (1) |
If he get IRS (IT) released by rank-629 of CSE-2007, he would release one vacancy in IRAS. He preferred IAS at 6th Number |
| 11. | 638 | ANAND KUMAR ROY |
IRPS | IAS | If he get IAS (08), he would release one vacancy in IRS(IT). |
(emphasis supplied)
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vacancies worked out by the UPSC in its letter dated 30.08.2011, inter alia, for the candidates with hearing impediment, had been utilized/ filled, or not.
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hearing impairment, were worked out as 12, and the petitioner’s name figured at serial no.9 for the CSE-2007. Therefore, we find no justification for the petitioner denying allocation of IAS to the respondent.
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VIPIN SANGHI, J.
A.K. CHAWLA, J.
FEBRUARY 08, 2019 nn
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3 issues framed by the court
Whether the petitioner is justified in denying allocation of IAS service to the respondent, a hearing impaired candidate, despite the existence of backlog vacancies reserved for the physically handica
Whether the delay in approaching the Tribunal defeats the claim for allocation against reserved backlog vacancies for persons with disabilities.
Whether the principle of general merit applies to differently abled candidates in the context of service allocation against backlog vacancies.
Colour shows how this judgement treated each authority
Ravi Prakash Gupta vs. UPSC & Ors.Followed¶21
Ravi Prakash Gupta vs. UPSC & Ors., W.P.(C) 5429/2008
N. Sharavan Kumar & others. vs. Union Public Service Commission & othersReferred¶43
N. Sharavan Kumar & others. vs. Union Public Service Commission & others
Union of India v. Pankaj Kumar Srivastava & Anr.Followed¶65
Union of India v. Pankaj Kumar Srivastava & Anr., W.P.(C) 4902/2013
2 provisions across 1 enactments
UNION OF INDIA
SH. RAVINDRA U GARKAL
VIPIN SANGHI
A.K. CHAWLA
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
