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.’

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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

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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%.

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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

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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

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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’

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(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

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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

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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

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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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