AJAY KUMAR PANDEY & ORS. VERSUS STATE OF U.P. & ORS

AJAY KUMAR PANDEY & ORS.  VERSUS STATE OF U.P. & ORS


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4811 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 18854 OF 2019)
AJAY KUMAR PANDEY & ORS. .....APPELLANT(S)
VERSUS
STATE OF U.P. & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order passed by the High
Court of Judicature at Allahabad on 15.2.2019 whereby though the
Government Order1
 dated 7.5.1999 was struck down, but selection to
the post of Safai-Karmis made in pursuance of the advertisement dated
16.6.2008 was not interfered with.
2. The facts leading to the present appeal are that an advertisement was
published on 16.6.2008 inviting applications for 1651 posts of safaikarmis in District Mau, out of which 346 posts were reserved for
Scheduled Caste, 34 for Scheduled Tribe and 445 for Other Backward
Class. It further stated that reservation would also be in respect of the
advertised posts to women, disabled candidates, freedom fighters and
1 For short, the ‘G.O.’
1
ex-servicemen as per government decisions, though the number of
such reserved posts has not been specified.
3. The appellants have mentioned in the writ petition filed, the record of
which was called from the High Court, that there were 50 posts
reserved for disabled candidates. However, such 50 posts were said to
be on the basis of 3% of the total posts advertised and not as per the
reservation policy of appointment of the disabled candidates in the
State.
4. In respect of disabled candidates, the State Government had circulated
a G.O. dated 07.05.1999 identifying the posts which can be manned by
such suitable disabled candidates under Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act,
19952
. For the present appeal, relevant clauses of the G.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 public services under Section 32 of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 and in the context of the Uttar Pradesh
Public Service (Reservation for Physically Handicapped,
Dependents of Freedom Fighters and ex-military officials)
(Amendment) Act, 1997 promulgated by the Department of
Personnel. List of identified posts is enclosed herewith.
4. I am directed to state that appointment should be made to the
identified posts under the posts reserved for these classes. In
the event of non-filing of the vacancy due to non-availability of
suitable candidates, it shall be carried over to the next
recruitment.
2 For short, the ‘Act’
2
xx xx xx
GROUND ‘D’ IDENTIFICATION OF JOBS FOR PHYSICALLY
HANDICAPPED
1. Daftry, Attendant S W S E OA OL PD
2. Peon, Office Boy S W S E OA OL PD
3. Dusting Man Farash S W S E OA OL D PD
PB
4. Process Server S W S E OA D PD
5. Unskilled Office worker S W S E PD OA OL
OA
6. Duplicating Machine Operator,
Cyclostyle Machine Operator
S W S E D PD OL OA
7. Sweeper Dry ST S W KC
SE F P PL
PD D
8. Sweeper Wet -do- -do9. Sweeper, Sewer -do- -do10. Sweeper Cleaner & Related
Workers, Ors.
-do- -do11. Water Carrier -do- -do12. Dhobi ST S KC SE
PP L F
PD D
13. Stencillar SE S F B OA BL OL
PD D
14. Stamper Hand SE S F B -doxx xx xx
APPENDIX A
PHYSICAL REQUIREMENTS
Code Function
F 1. Work performed by manipulating (with fingers)
PP 2. Work performed by pulling and pushing
L 3. Work performed by lifting
KC 4. Work performed by knelling and crouching
B 5. Work performed by bending
S 6. Work performed by siting (on bench or chair)
ST 7. Work performed by standing
W 8. Work performed by walking
SE 9. Work performed by seeing
H 10. Work performed by hearing/speaking
3
APPENDIX B
Code Function
BL (i) Both legs affected but not arms
BA (ii) Both arms affected
(a) impaired
(b) Weakness of grip
BLA (iii) Both legs and both arms affected
OL (iv) One leg affected (R &/or L)
(a) Impaired reach
(b) weakness of grip
(c) Ataxie
BH (vi) Stiff back and hips (cannot sit or stoop)
FT (vii) Limited exercise to tolerance – Early fatigue
MW (viii) Muscular weakness and limited physical.
IC (ix) General in coordination of movement
B (x) The blind
PB (xi) Partially blind
D (xii) The deaf
PD (xiii) Partially deaf
5. A perusal of the above G.O. shows that the posts of Sweeper Dry,
Sweeper Wet, Sweeper Sewer, Sweeper Cleaner & Related Workers
could be filled up by the candidates who are deaf or partly deaf. The
posts of Daftry, Attendant, Peon, Office Boy, Dusting Man Farash,
Process Server etc. were identified to be filled up by the candidates
with locomotor disability.
6. The appellants, being persons with locomotor disability, submitted
their application forms with locomotor disability certificates to the
effect, that Mr. Ajay Kumar Pandey had 50% Loco Motor Disability.
Chandra Bali Ram had Loco Motor Disability of PPRP left upper limb
60%. Ram Bhawan Singh had Muscular Dystrophy of PPRP Right upper
limb 70%.
4
7. It is the case of the appellants that they participated in the cycle test
and also appeared for interview but were not appointed, which led
them to file writ petition before the High Court in the year 2018. The
High Court held that under the Act, there are other forms of disabilities
in addition to the hearing impairment. Thus, all categories of disabled
persons were found entitled to avail reservation up to 3 percent, of
which one percent each is available for disabled candidates suffering
from (i) blindness or low vision, (ii) hearing impairment, and (iii) locomotor disability or cerebral palsy. Hence, the High Court found the G.O.
to be ultra-vires to the Constitution and held as under:
“Section 32 only allows the State Government to identify posts in
each establishment which can be reserved for persons with
disabilities. The post of Sweeper in the establishment of District
Panchayat Raj Officer is undoubtedly the post which has been
identified for applying reservation in favour of disabled persons.
The purpose of Section 32 stands fulfilled with the said
identification. Therefore, reservation as per law is applicable on
the said post of Sweeper to the disabled persons.
The disabled persons as per the definition of disability under
Section 2 (i) of the Disabilities Act, 1995 includes inter-alia other
forms of disability in addition to hearing impairment. Thus, in
view of Section 33 of the Disabilities Act, 1995 read with Section
3 of the U.P. Reservation Act of 1993, all categories of disabled
persons are entitle to avail reservation upto 3 percent of which 1
percent each is available to persons suffering from (i) blindness
or low vision; (ii) hearing impairment; and (iii) locomotor
disability or cerebral palsy.
xx xx xx
Thus, the respondents cannot even make any intelligible
distinction between the different categories of disabled persons
5
in the matter of providing reservation when the Acts provide for
reservation in favour of all categories of disabled persons.
In view of the aforesaid facts and circumstances, we are of the
opinion that the Government Order No. 4161/63-1-99-18(24)/97
dated 07.05.1999 insofar as it provides reservation to persons
with disabilities in the category of hearing impairment alone is
illegal and ultra-vires to Article 14 and 16 of the Constitution of
India as well as Section 3 of the U.P. Reservation Act of 1993 and
Sections 32 and 33 of the Disabilities Act, 1995. The reservation
would be applicable to each category of disabled persons in
accordance with the provisions of U.P. Reservation Act of 1993
read with Disabilities Act, 1995.” (Emphasis Supplied)
8. The learned counsel for the appellants contended that once the G.O.
dated 7.5.1999 has been struck down, as a consequence thereof, the
appellants were entitled to be appointed in the category of persons
suffering from locomotor disability.
9. On the other hand, Ms. Ruchira Goel, learned counsel for the State
submitted that the G.O. itself has been wrongly struck down by the
High Court. It was contended that the High Court has completely
misread the G.O. dated 7.5.1999 as the posts have been reserved
keeping in view the requirement of the posts to be filled up by the
candidate seeking appointment. It was pointed out that for the posts of
Sweeper (Dry, Wet, Cleaner & Related Workers) etc., reservation has
been provided to deaf and partially deaf candidates, whereas for the
persons with locomotor disability, reservation for the posts of Daftry,
Attendant, Peon, Office Boy etc. has been provided. Therefore, striking
down of the G.O. dated 7.5.1999 was not tenable. Ms. Goel relies upon
6
the principles of Order XLI Rule 33 of the Code of Civil Procedure, 19083
to contend that the ultimate order of the High Court can be maintained
on other grounds than 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 has been
decided that in future, no recruitment to any Class-IV posts (except the
lowest cadre of technical post) would be made and the arrangements
would have to be made by way of outsourcing only. Therefore, the High
Court was correct in law in not disturbing the selection process, as on
the date of the order, there could not be any appointment to the ClassIV posts.
11. The G.O. in question dated 7.5.1999 has to be examined in view of
Sections 32 and 33 of the Act. Such provisions read thus:
“32. Identification of posts which can be reserved for
persons with disabilities.—Appropriate Governments shall—
(a) identify posts, in the establishments, which can be reserved
for the persons with disability;
(b) at periodical intervals not exceeding three years, review the
list of posts identified and up-date the list taking into
consideration the developments in technology.
33. Reservation of posts.—Every appropriate Government
shall appoint in every establishment such percentage of
vacancies not less than three per cent for persons or class of
persons with disability of which one per cent each shall be
reserved for persons suffering from—
(i) blindness or low vision;
(ii) hearing impairment;
3 For short, the ‘Code’
7
(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.”
12. We have heard learned counsel for the parties and are of the opinion
that the High Court has completely misread Sections 32 and 33 of the
Act.
13. Sections 32 and 33 came up for consideration before this Court in a
judgment reported as Government of India through Secretary &
Anr. v. Ravi Prakash Gupta & Anr.
4
 wherein it has been held as
under:
“29. 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
4 (2010) 7 SCC 626
8
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)
14. The said judgment was considered by this Court in Union of India &
Anr. v. National Federation of the Blind & Ors.
5
 wherein it was
held as under:
“37. Admittedly, the Act is a social legislation enacted for the
benefit of persons with disabilities and its provisions must be
interpreted in order to fulfil its objective. Besides, it is a settled
rule of interpretation that if the language of a statutory provision
is unambiguous, it has to be interpreted according to the plain
meaning of the said statutory provision. In the present case, the
plain and unambiguous meaning of Section 33 is that every
appropriate Government has to appoint a minimum of 3%
vacancies in an establishment out of which 1% each shall be
reserved for persons suffering from blindness and low vision,
persons suffering from hearing impairment and persons suffering
from locomotor disability or cerebral palsy.
38. To illustrate, if there are 100 vacancies of 100 posts in an
establishment, the establishment concerned will have to reserve
a minimum of 3% for persons with disabilities out of which at
least 1% has to be reserved separately for each of the following
disabilities : persons suffering from blindness or low vision,
persons suffering from hearing impairment and the persons
suffering from locomotor disability or cerebral palsy.
Appointment of 1 blind person against 1 vacancy reserved for
him/her will be made against a vacancy in an identified post for
instance, the post of peon, which is identified for him in Group D.
Similarly, one hearing impaired will be appointed against one
reserved vacancy for that category in the post of Store
Attendant in Group D post. Likewise, one person suffering from
locomotor disability or cerebral palsy will be appointed against
the post of “Farash”, Group D post identified for that category of
disability. It was argued on behalf of the Union of India with
reference to the post of driver that since the said post is not
suitable to be manned by a person suffering from blindness, the
5 (2013) 10 SCC 772
9
above interpretation of the section would be against the
administrative exigencies. Such an argument is wholly
misconceived. A given post may not be identified as suitable for
one category of disability, the same could be identified as
suitable for another category or categories of disability entitled
to the benefit of reservation. In fact, the second part of the
section has clarified this situation by providing that the number
of vacancies equivalent to 1% for each of the aforementioned
three categories will be filled up by the respective category by
using vacancies in identified posts for each of them for the
purposes of appointment.” (Emphasis Supplied)
15. A reading of the impugned judgment of the High Court shows that 3%
posts in each cadre dehors the identification of the posts are to be
reserved for persons with disability, with blindness or low vision,
hearing impairment and locomotor disability. We find that such view of
the High Court is not the correct enunciation of law. The 3% reservation
is to be in an establishment and not in all cadres of an establishment
irrespective of the nature of job.
16. A reading of the G.O. dated 7.5.1999 shows that posts have been
identified to be filled up from physically handicapped category in
category C and D posts. Such identification of the posts in an
establishment is in terms of Section 32(a) of the Act. Although, such
list is to be reviewed every three years taking into consideration the
development in technology, however the said exercise appears to have
not been undertaken. But the identification of posts in terms of
Section 32 of the Act has been carried out in the G.O. dated 7.5.1999.
After such identification, the question of appointment in each
10
establishment arises where the vacancies not less than 3% are to be
reserved for the candidates with blindness or low vision, hearing
impairment and locomotor disability. Such reservation of posts under
Section 33 of the Act is not for all categories of posts irrespective of
nature of work to be carried out. The 3% reservation has to be
provided in an establishment and not in every cadre. The State
Government has taken a conscious decision to reserve certain posts for
hearing impaired candidates and not for the candidates with locomotor
disability.
17. We find that the G.O. dated 07.05.1999 could not be set aside in
exercise of the power of judicial review on the basis of cursory glance
of the G.O. dated 07.05.1999. The identification of the posts which can
be filled up by candidates suffering from disabilities is the
responsibility of the appropriate Government under Section 32 of the
Act, which is the State Government in the present case. Once such
exercise has been carried out, the appropriate Government in terms of
Section 33 of the Act shall reserve 1% each for the visual disability,
hearing impairment and locomotor disability. The identification of the
posts and the category of the disabled candidates who could be
appointed against the posts reserved is the power conferred on the
appropriate Government. Such exercise and the reservation of posts
could not have been interfered with without holding such reservation
to be totally arbitrary, irrational or against the objectives sought to be
11
achieved and on judicially recognised principles.
18. We find that the order of the High Court striking the G.O. as a whole is
on the basis of surmises and conjectures, thus the said order cannot be
sustained in law. Since the posts of Safai-Karmis are not identified to be
filled up from amongst the candidates having locomotor disability, the
appellant could not be appointed against such category of post, even
though they have appeared for cycling test or for interview. The
appellants were not eligible for the appointment against such posts in
terms of the advertisement. The G.O. dated 07.05.1999 is part of the
advertisement and therefore, the appellants cannot claim appointment
against the post reserved for disabled candidates only for the reason
that they are locomotor disabled candidates when such post was not
reserved for the Safai-Karmis.
19. Consequently, the order of the High Court striking aside the G.O. dated
7.5.1999 is set aside. Thus, we do not find any merit in the present
appeal. The appeal is disposed of accordingly.
.............................................J.
(HEMANT GUPTA)
.............................................J.
(VIKRAM NATH)
NEW DELHI;
AUGUST 01, 2022.
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