AJAY KUMAR PANDEY & ORS. versus STATE OF U.P. & ORS. on 1 August 2022

1. The challenge in the present appeal is to an order passed by theDHigh Court of Judicature at Allahabad on 15.2.2019 whereby though theGovernment Order[1] dated 7.5.1999 was struck down, but selection tothe post of Safai-Karmis made in pursuance of the advertisement dated16.6.2008 was not interfered with.

2. The facts leading to the present appeal are that an advertisementEwas published on 16.6.2008 inviting applications for 1651 posts of safai-karmis in District Mau, out of which 346 posts were reserved forScheduled Caste, 34 for Scheduled Tribe and 445 for Other BackwardClass. It further stated that reservation would also be in respect of theadvertised posts to women, disabled candidates, freedom fighters andFex-servicemen as per government decisions, though the number of suchreserved posts has not been specified.

3. The appellants have mentioned in the writ petition filed, therecord of which was called from the High Court, that there were 50posts reserved for disabled candidates. However, such 50 posts wereGsaid to be on the basis of 3% of the total posts advertised and not as perthe reservation policy of appointment of the disabled candidates in theState.

4. In respect of disabled candidates, the State Government hadcirculated a G.O. dated 07.05.1999 identifying the posts which can be H1 For short, the ‘G.O.’

manned by such suitable disabled candidates under Persons withDisabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995[2]. For the present appeal, relevant clauses of theG.O. pertaining to Group D posts are reproduced hereunder:

“3. In this regard, the government has identified the posts of Group‘C’ and Group ‘D’ for the purpose of ensuring reservation in publicservices under Section 32 of the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act,1995 and in the context of the Uttar Pradesh Public Service(Reservation for Physically Handicapped, Dependents of FreedomFighters and ex-military officials) (Amendment) Act, 1997promulgated by the Department of Personnel. List of identifiedposts is enclosed herewith.

4. I am directed to state that appointment should be made to theidentified posts under the posts reserved for these classes. In theevent of non-filing of the vacancy due to non-availability of suitablecandidates, it shall be carried over to the next recruitment.

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2 For short, the ‘Act’

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840SUPREME COURT REPORTS

[2022] 6 S.C.R.

AAPPENDIX A

PHYSICAL REQUIREMENTS

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APPENDIX BDEF

5. A perusal of the above G.O. shows that the posts of SweeperGDry, Sweeper Wet, Sweeper Sewer, Sweeper Cleaner & RelatedWorkers could be filled up by the candidates who are deaf or partlydeaf. The posts of Daftry, Attendant, Peon, Office Boy, Dusting ManFarash, Process Server etc. were identified to be filled up by thecandidates with locomotor disability.

6. The appellants, being persons with locomotor disability,submitted their application forms with locomotor disability certificates tothe effect, that Mr. Ajay Kumar Pandey had 50% Loco Motor Disability.Chandra Bali Ram had Loco Motor Disability of PPRP left upper limb60%. Ram Bhawan Singh had Muscular Dystrophy of PPRP Right upperlimb 70%.

7. It is the case of the appellants that they participated in thecycle test and also appeared for interview but were not appointed, whichled them to file writ petition before the High Court in the year 2018. TheHigh Court held that under the Act, there are other forms of disabilitiesin addition to the hearing impairment. Thus, all categories of disabledpersons were found entitled to avail reservation up to 3 percent, of whichone percent each is available for disabled candidates suffering from (i)blindness or low vision, (ii) hearing impairment, and (iii) locomotordisability or cerebral palsy. Hence, the High Court found the G.O. to beultra-vires to the Constitution and held as under:

“Section 32 only allows the State Government to identify posts ineach establishment which can be reserved for persons withdisabilities. The post of Sweeper in the establishment of DistrictPanchayat Raj Officer is undoubtedly the post which has beenidentified for applying reservation in favour of disabled persons.The purpose of Section 32 stands fulfilled with the saididentification. Therefore, reservation as per law is applicable onthe said post of Sweeper to the disabled persons.

The disabled persons as per the definition of disability under Section2 (i) of the Disabilities Act, 1995 includes inter-alia other forms ofdisability in addition to hearing impairment. Thus, in view of Section33 of the Disabilities Act, 1995 read with Section 3 of the U.P.Reservation Act of 1993, all categories of disabled persons areentitle to avail reservation upto 3 percent of which 1 percent eachis available to persons suffering from (i) blindness or low vision;(ii) hearing impairment; and (iii) locomotor disability or cerebralpalsy.

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Thus, the respondents cannot even make any intelligibledistinction between the different categories of disabledpersons in the matter of providing reservation when the Acts A

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Aprovide for reservation in favour of all categories of disabledpersons.

In view of the aforesaid facts and circumstances, we are of theopinion that the Government Order No. 4161/63-1-99-18(24)/97dated 07.05.1999 insofar as it provides reservation to persons withBdisabilities in the category of hearing impairment alone is illegaland ultra-vires to Article 14 and 16 of the Constitution of India aswell as Section 3 of the U.P. Reservation Act of 1993 and Sections32 and 33 of the Disabilities Act, 1995. The reservation would beapplicable to each category of disabled persons in accordancewith the provisions of U.P. Reservation Act of 1993 read withCDisabilities Act, 1995.” (Emphasis Supplied)

8. The learned counsel for the appellants contended that once theG.O. dated 7.5.1999 has been struck down, as a consequence thereof,the appellants were entitled to be appointed in the category of personssuffering from locomotor disability.D

9. On the other hand, Ms. Ruchira Goel, learned counsel for theState submitted that the G.O. itself has been wrongly struck down by theHigh Court. It was contended that the High Court has completely misreadthe G.O. dated 7.5.1999 as the posts have been reserved keeping inview the requirement of the posts to be filled up by the candidate seekingEappointment. It was pointed out that for the posts of Sweeper (Dry, Wet,Cleaner & Related Workers) etc., reservation has been provided to deafand partially deaf candidates, whereas for the persons with locomotordisability, reservation for the posts of Daftry, Attendant, Peon, OfficeBoy etc. has been provided. Therefore, striking down of the G.O. datedF7.5.1999 was not tenable. Ms. Goel relies upon the principles of OrderXLI Rule 33 of the Code of Civil Procedure, 1908[3] to contend that theultimate order of the High Court can be maintained on other groundsthan what weighed with the High Court while dismissing the writ petition.

10. It was also contended that vide G.O. dated 8.12.2010, it hasGbeen decided that in future, no recruitment to any Class-IV posts (exceptthe lowest cadre of technical post) would be made and the arrangementswould have to be made by way of outsourcing only. Therefore, the HighCourt was correct in law in not disturbing the selection process, as on H3 For short, the ‘Code’

the date of the order, there could not be any appointment to the Class-IVposts.

11. The G.O. in question dated 7.5.1999 has to be examined inview of Sections 32 and 33 of the Act. Such provisions read thus:

“32. Identification of posts which can be reserved forpersons with disabilities.—Appropriate Governments shall—

(a) identify posts, in the establishments, which can be reservedfor the persons with disability; (b) at periodical intervals not exceeding three years, review thelist of posts identified and up-date the list taking into considerationthe developments in technology.

33. Reservation of posts.—Every appropriate Government shallappoint in every establishment such percentage of vacancies notless than three per cent for persons or class of persons withdisability of which one per cent each shall be reserved for personssuffering 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 tothe type of work carried on in any department or establishment,by notification subject to such conditions, if any, as may be specifiedin such notification, exempt any establishment from the provisionsof this section.”

12. We have heard learned counsel for the parties and are of theopinion that the High Court has completely misread Sections 32 and 33of the Act.

13. Sections 32 and 33 came up for consideration before this Courtin a judgment reported as Government of India through Secretary &Anr. v. Ravi Prakash Gupta & Anr.[4] wherein it has been held as under:

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A“29. While it cannot be denied that unless posts are identifiedfor the purposes of Section 33 of the aforesaid Act, noappointments from the reserved categories contained thereincan be made, and that to such extent the provisions of Section33 are dependent on Section 32 of the Act, as submitted by thelearned ASG, but the extent of such dependence would be for theBpurpose of making appointments and not for the purpose of makingreservation. In other words, reservation under Section 33 of theAct is not dependent on identification, as urged on behalf of theUnion of India, though a duty has been cast upon the appropriateGovernment to make appointments in the number of posts reservedCfor the three categories mentioned in Section 33 of the Act inrespect of persons suffering from the disabilities spelt out therein.In fact, a situation has also been noticed where on account ofnon-availability of candidates some of the reserved posts couldremain vacant in a given year. For meeting such eventualities,provision was made to carry forward such vacancies for twoDyears after which they would lapse. Since in the instant case sucha situation did not arise and posts were not reserved under Section33 of the Disabilities Act, 1995, the question of carrying forwardof vacancies or lapse thereof, does not arise.”

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14. The said judgment was considered by this Court in Union ofIndia & Anr. v. National Federation of the Blind & Ors.[5] wherein itwas held as under:

“37. Admittedly, the Act is a social legislation enacted for theFbenefit of persons with disabilities and its provisions must beinterpreted in order to fulfil its objective. Besides, it is a settledrule of interpretation that if the language of a statutory provisionis unambiguous, it has to be interpreted according to the plainmeaning of the said statutory provision. In the present case, theplain and unambiguous meaning of Section 33 is that everyGappropriate Government has to appoint a minimum of 3%vacancies in an establishment out of which 1% each shall bereserved for persons suffering from blindness and low vision,persons suffering from hearing impairment and persons sufferingfrom locomotor disability or cerebral palsy.

38. To illustrate, if there are 100 vacancies of 100 posts in anestablishment, the establishment concerned will have to reserve aminimum of 3% for persons with disabilities out of which at least1% has to be reserved separately for each of the followingdisabilities : persons suffering from blindness or low vision, personssuffering from hearing impairment and the persons suffering fromlocomotor disability or cerebral palsy. Appointment of 1 blindperson against 1 vacancy reserved for him/her will be madeagainst a vacancy in an identified post for instance, the postof peon, which is identified for him in Group D. Similarly,one hearing impaired will be appointed against one reservedvacancy for that category in the post of Store Attendant inGroup D post. Likewise, one person suffering from locomotordisability or cerebral palsy will be appointed against the postof “Farash”, Group D post identified for that category ofdisability. It was argued on behalf of the Union of India withreference to the post of driver that since the said post is not suitableto be manned by a person suffering from blindness, the aboveinterpretation of the section would be against the administrativeexigencies. Such an argument is wholly misconceived. A givenpost may not be identified as suitable for one category of disability,the same could be identified as suitable for another category orcategories of disability entitled to the benefit of reservation. Infact, the second part of the section has clarified this situation byproviding that the number of vacancies equivalent to 1% for eachof the aforementioned three categories will be filled up by therespective category by using vacancies in identified posts for eachof them for the purposes of appointment.” (Emphasis Supplied)

15. A reading of the impugned judgment of the High Court showsthat 3% posts in each cadre dehors the identification of the posts are tobe reserved for persons with disability, with blindness or low vision, hearingimpairment and locomotor disability. We find that such view of the HighCourt is not the correct enunciation of law. The 3% reservation is to bein an establishment and not in all cadres of an establishment irrespectiveof the nature of job.

16. A reading of the G.O. dated 7.5.1999 shows that posts havebeen identified to be filled up from physically handicapped category incategory C and D posts. Such identification of the posts in an establishment AB

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Ais in terms of Section 32(a) of the Act. Although, such list is to be reviewedevery three years taking into consideration the development in technology,however the said exercise appears to have not been undertaken. Butthe identification of posts in terms of Section 32 of the Act has beencarried out in the G.O. dated 7.5.1999. After such identification, thequestion of appointment in each establishment arises where the vacanciesBnot less than 3% are to be reserved for the candidates with blindness orlow vision, hearing impairment and locomotor disability. Such reservationof posts under Section 33 of the Act is not for all categories of postsirrespective of nature of work to be carried out. The 3% reservation hasto be provided in an establishment and not in every cadre. The StateCGovernment has taken a conscious decision to reserve certain posts forhearing impaired candidates and not for the candidates with locomotordisability.

17. We find that the G.O. dated 07.05.1999 could not be set asidein exercise of the power of judicial review on the basis of cursory glanceDof the G.O. dated 07.05.1999. The identification of the posts which canbe filled up by candidates suffering from disabilities is the responsibilityof the appropriate Government under Section 32 of the Act, which is theState Government in the present case. Once such exercise has beencarried out, the appropriate Government in terms of Section 33 of theAct shall reserve 1% each for the visual disability, hearing impairmentEand locomotor disability. The identification of the posts and the categoryof the disabled candidates who could be appointed against the postsreserved is the power conferred on the appropriate Government. Suchexercise and the reservation of posts could not have been interferedwith without holding such reservation to be totally arbitrary, irrational or Fagainst the objectives sought to be achieved and on judicially recognisedprinciples.

18. We find that the order of the High Court striking the G.O. as awhole is on the basis of surmises and conjectures, thus the said ordercannot be sustained in law. Since the posts of Safai-Karmis are notGidentified to be filled up from amongst the candidates having locomotordisability, the appellant could not be appointed against such category ofpost, even though they have appeared for cycling test or for interview.The appellants were not eligible for the appointment against such postsin terms of the advertisement. The G.O. dated 07.05.1999 is part of theadvertisement and therefore, the appellants cannot claim appointmentH

against the post reserved for disabled candidates only for the reasonthat they are locomotor disabled candidates when such post was notreserved for the Safai-Karmis.

19. Consequently, the order of the High Court striking aside theG.O. dated 7.5.1999 is set aside. Thus, we do not find any merit in thepresent appeal. The appeal is disposed of accordingly.

Bibhuti Bhushan Bose

Appeal disposed of.

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