Showing posts with label Civil Services for Visually Impaired. Show all posts
Showing posts with label Civil Services for Visually Impaired. Show all posts

Monday, August 22, 2022

Delhi HC orders appointment of a Person with Visual Disability to IAS with consequential seniority

Court: Delhi High Court

Bench: Justice Sanjeev Sachdeva and Justice Tushar Rao Gedela

Case No.: WP(C) 572 of 2020

Case Title: Vishv Mohan V. DoPT & Others

Date of Judgement: 22.08.2022

Brief

While ordering Mr. Vishv Mohan, a candidate with visual impairment  of 2015 batch, to be appointed to the Indian Administrative Service (IAS) and setting aside Appellate Medical Board Report as being inconclusive, the Delhi High Court observed that a welfare State is expected to create conditions which are conducive to citizens with disabilities by providing them avenues for public employment under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The  State is enjoined to create conditions and opportunities for the welfare and betterment of the citizens with disabilities and those who are differently abled.

"The Central Government had enacted the said Act to ensure that the citizens falling in this category are not deprived of their rightful means of livelihood in respect of public employment. It is with a view to give impetus to the beneficial provisions of the said Act, that the Central Government and the State Governments created various avenues for public employment of such differently abled citizens." said the Court.

The Court dealt with a plea filed by a candidate with visual  disability for recruitment of All India Service for the year 2015.  The petitioner had challenged the report of the Appellate Medical Board of Dr. Ram Manohar Lohia Hospital, conducted in compliance of High Court's order whereby the Medical Board consisting of three senior doctors had concluded that the Petitioner was having visual disability of 20% only. Whereas several other competent medical boards and one medical board of AIIMS Delhi had also ceritified him in the past with more than 60% visual disability. 

The Court expressed its astonishment as to how the AIIMS Delhi could assess them 20% disability and 60-75% disability in two different sittings.

While there was no dispute about the fact that the Petitioner suffered from visual impairment namely 'high myopia with Isometropic Amblyopia', the Court dealt with the issue as to whether the Petitioner was suffering from a visual impairment which would be greater than 40%. Having 40% visual impairment would entitle the petitioner to be treated as a visually disabled category candidate.

It was the Petitioner's case that he was a meritorious candidate who had secured a total of 828 marks in the examination of the Civil Services Examination 2014 with All India Rank of 1173 and 5th rank holder in the disabled category.

Perusing the consistent medical reports of past several years wherein his disability ws assessed higher than 60% by competent medical boards in the disability certificates issued to the petitioner, the Court was of the view that the Petitioner fell within the definition as contained in sec. 2(b)(ii) of the PWD Act.

The Court was of the opinion that the Petitioner was not only a person with visual impairment to the extent of 60% but also a "brilliant candidate" who had secured 5th rank in his own category and was also positioned at All India Rank No.1173.

"In such circumstances, depriving the Petitioner of public employment, that too, at the level of Indian Administrative Services, on such inconclusive medical report dated 17.12.2018, is not only unfair, unjust but also whimsical and arbitrary. We hold so," the Court observed.

Setting aside the impugned Appellate Medical Board Report, the Court directed the respondents to take the assessment of the percentage of disability of the Petitioner at 60% and also consider him qualified so far as the medical criteria is concerned.

"As a consequence, Respondent No.1/DoPT is directed to allot the cadre and appoint the Petitioner in Indian Administrative Service (2015 Batch) considering him eligible in so far as the Central Civil Examination, 2014 is concerned with all consequential benefits in respect of seniority and promotion on notional basis. Since the Petitioner  did not discharge any duties, we refrain from granting any back wages," the Court added while disposing of the petition in favour of the petitioner. 

Read the embedded order dated 22 Aug 2022 below:-


Monday, June 29, 2015

UPSC discriminates against disabled in Civil Services Exam - PIL

HC notice on PIL on quota for disabled in civil services exam
Last Updated: Saturday, June 20, 2015 - 00:58

New Delhi: The Delhi High Court today sought response of the Centre and UPSC on a plea by an organisation for disabled persons seeking quashing of the civil services exam notification alleging non-implementation of statutory three per cent quota for handicapped persons.

A bench of justices Mukta Gupta and P S Teji issued notice to the Ministry of Personnel, Public Grievances and Pensions and Union Public Service Commission (UPSC) and sought their reply by July 15 on the plea by Sambhavana which has alleged non-compliance of high court's orders.

Sambhavana has claimed that as per the examination notice, approximately 1129 vacancies are expected to be filled, out of which only five vacancies have been reserved for candidates with visual impairment, whereas the Supreme Court in 2013 had held that three per cent reservation on total number of vacancies in the cadre strength have to be reserved against candidates with disabilities.

In its PIL filed through advocates Pankaj Sinha and Nupur Grover, Sambhavana has alleged "blatant disregard" on the part of the central government and UPSC for neither following high court's orders nor complying with provisions of the Persons With Disabilities (PWD) Act.

"The examination is also being conducted in contravention of the guidelines for conducting written examination for Persons with Disabilities notified by the Ministry of Social Justice and Empowerment which have also been held to be mandatorily followed in various judgements passed by this court," the petition has said.

Besides not implementing the quota, it has said UPSC also did not adopt the exam writing policy for disabled on the basis of guidelines of the Chief Commissioner for Persons with Disabilities (CCPD).

It has claimed that due to non-implementation of the high court's directions, disabled aspirants are unable to give exams in an accessible environment.

The organisation has said that as per the PWD Act, it is the statutory obligation of the government to "appoint not less than three per cent vacancies for the persons or class of persons with disabilities".

"This implies that the minimum level of representation of persons with disabilities deals with the distribution of this three per cent among the three categories of disabilities namely, blind and low vision, hearing impairment, locomotor disabled or cerebral palsy and hence, one per cent of seats should be reserved for each of the said categories," it has said.

"It is pertinent to note that in the impugned examination notice, the three per cent reservation has not been adequately meted out by Respondent No. 2 (UPSC) and hence, discrimination on the basis of blindness has been clearly shown," the plea has said.

The petition has sought equal bifurcation of the vacancies amongst the three categories as well as directions to the government and UPSC to implement the executive order of Department of Disability Affairs, Ministry of Social Justice and Empowerment, with respect to "uniform guidelines for scribes for persons with disabilities."

It has also sought "filling up of all backlog vacancies of persons with disabilities arising since 1996 till date".  

PTI/ Zee News



Thursday, March 5, 2015

Delhi HC directs UPSC to distribute vacancies equally [Judgement included)

Dear Colleages,

Please refer to my earlier post titled "Two High Courts direct Extra time, reasonable accommodation & reservation in CSE 2014" whererin writ petition was filed before the Delhi High Court as well as Bombay High Court challenging the constitutional validity of UPSC's Notification Civil Services Examination 2014 on the grounds that it was against the rights of persons with visual impairments granted by the Persons with Disabilities Act 1995. 

While my earlier post contained the judgement of the case filed in Mumbai High Court and an interim order in the case filed in Delhi High Court, this post contains the final order passed in the case before the Delhi High Court bearing  WP (C) No. 3919 of 2014 titled Sambhavana Vs. Union of India and others dated 04 March 2015.

Directions by the Court 

(a) the respondent no.2 UPSC shall find out from the respective Cadre Controlling Authorities the reason for allocating the vacancies in excess of 3% unequally between the three categories aforesaid.

(b) if the Cadre Controlling Authorities are unable to give any valid reason, the vacancies in excess of 3% shall also be equally distributed between the persons with disability of all three categories and the appointments in pursuance to the Employment Notice impugned in the petition shall be made accordingly.

(c) Relief claimed seeking issuance of a direction to the respondents to comply with the Office Order dated 26th February, 2013 supra is concerned, we had in our order dated 19 th August, 2014 held that the guidelines contained therein were issued as per the directions of the Chief Commissioner for Persons with Disabilities who is an Authority appointed under Section 57(1) of the Act and cannot be treated as mere executive instructions and the said guidelines having been issued for effective implementation of the provisions of the Disabilities Act, have statutory force and are bound to be implemented by all Departments and Authorities. No arguments whatsoever were addressed on the said aspect by the learned counsel for the respondents during the hearing of the writ petition and therefore, we hold with respect to the said prayer that the respondent no.2 - UPSC shall abide by the said guidelines for all times to come unless the same are varied in accordance with law.




Wednesday, September 25, 2013

Visually Impaired Civil Service aspirants await appointments


The focus of the write-up by Mr. Subhash Ghatage (kafila.org) is the plight of four candidates – all of them visually challenged – who had cleared the UPSC (Union Public Service Commission) examinations way back in 2008, scored more marks than many ‘normal’ students and were still waiting for appointment letters. The Commission as everybody knows is India’s central agency authorised to conduct civil services and other important examinations.

The caller said that he was one among the four and shared with me the long struggle he along with others were engaged in to get their due. Apathy exhibited by people in the higher echelons of the Commission as far as visually challenged persons are concerned is really disturbing. And it was not for the first time that it had failed to give appointment letters to such candidates. Merely three years back Ravi Prakash Gupta had to approach the highest courts of the country namely the Supreme Court to get his appointment letter. Last February it was the Prime Minister’s Office  which had to intervene so that seven candidates from similar category could join their duty.

A recap of the appointments done between the period 1996 to 2008 tells us that only 15 visually challenged candidates have been recommended by UPSC, while almost 6900 vacancies were filled during this period. Among 15, 12 candidates have been recommended or upgraded after court orders.

While officially nothing is said about the inordinate delay by the commission in this particular case, it is evident in their action that candidates from this category are unwelcome. In fact, there seems to be a deliberate attempt to restrict the entry of such candidates, at times even by, glossing over the provisions of the Persons with Disabilities Act, 1995. e.g. A petition by the caller ( Mr Pankaj Srivastava) tells us how in the year 2008

‘[t]otal 891 candidates were declared succesful but only four candidates from visualy challenged category were recommended by the commission, whereas it should be 9 according to the PWD act 1995.’

Despite the fact that Central Administrative Tribunal (CAT) gave a favourable decision, the Commission is still engaged in delaying tactics. It even refused to calculate the backlog according to the necessary provisions of the act since 1996 when the Tribunal specifically asked it to do so. As a report in a leading national daily tells us (Times of India, 16 th Sep 2013) “

Between the four of them, they have filed two applications and one contempt petition against their non-appointment in the Central Administrative Tribunal. The tribunal ruled in their favour each time. There is a High Court stay order on one CAT order of May 2012 directing the authorities to appoint the four candidates, which is to be heard on September 24.”

It was late 70 s when Frank Bowe, a disability rights activist from US had written a monograph ‘Handicapping America’ (1978) in which he tried to explain how the key issue in any debate around disability is the societal response to it. For Bowe, the main point was not the status of physical or mental impairment of a particular person, but the way society develops strategies to cope with it.

One does not know when the obdurate bureaucracy at the Commission would become more aware and sensitive to the fact that there is a sea change in the perception about disability now. If earlier dominant trend in the disability discourse revolved around adoption of ‘social welfare measures’ and the world was bit far away from taking it up as a ‘human rights issue’with the adoption of an international convention in 2006 welfare and charity have been replaced by new rights and freedoms and there is growing recognition that a change of attitude is vital if disabled people are to achieve equal status.

We are told that the commission annually submits a report of its work to the President of India which is also sent to each house of the Parliament for discussion. One just expects that honourable members of the parliament – who have enough lung power left to point out acts of omission and commission on part of the government or the treasury benches ever contemplating strategies to strike back, would at least find time to go through the reports and see for oneself the great hiatus which exists between rosy picture about disability welfare which is presented through the ‘official’ reports and the actual situation on the ground.

.......continue to read from source: No country for Visually Challenged by Subhash Ghatade

Wednesday, July 7, 2010

Surpreme Court of India | Govt. of India & Anr. Vs. Ravi Prakash Gupta | SLP (C) 14889 of 2009 | 07 July 2010

 Court: Supreme Court of India

Case No. & Title: SLP (C) 14889 of 2009, titled Govt of India  vs Ravi Prakash Gupta & Anr 

Bench: Altamas Kabir, Cyriac Joseph 

Date of Judgement:  07 July, 2010

                                                   REPORTABLE


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO.14889 OF 2009


Govt. of India (through Secretary & Anr.)                           .. Petitioners

                           Vs.

Ravi Prakash Gupta & Anr.                                                    .. Respondents

 J U D G M E N T

ALTAMAS KABIR, J.

1. The Government of India, through the Secretary, Ministry of Personnel & Public Grievances, Department of Personnel and Training and through the Secretary, Ministry of Social Justice and Empowerment, has filed this Special Leave Petition against the judgment and order dated 25th February, 2009, passed by the Delhi High Court in Writ Petition (Civil) No.5429 of 2008, allowing the Writ Petition and setting aside the order dated 7th April, 2008, passed by the Central Administrative Tribunal, Principal Bench, New Delhi, in O.A. No.1397 of 2007, filed by the Respondent No.1 herein, and allowing the reliefs prayed for therein.

2. The Respondent No.1 is a visually handicapped person who suffers from 100% blindness. He appeared in the Civil Services Examination conducted by the Union Public Service Commission in the year 2006. After clearing the preliminary examination, the Respondent No.1 appeared for the main examination in October, 2006 and was declared successful and was, thereafter, called for a personality test scheduled for 1st May, 2007. Pursuant to such interview, the names of 474 candidates who were selected were released on 14th May, 2007. In the said list, the name of one other visually impaired candidate also figured. The Respondent No.1 was at serial no.5 of the merit list prepared for visually handicapped candidates, who had been declared successful in the examination. According to the Respondent No.1, although there were more than 5 vacancies available in the visually handicapped category, only one post was offered under the said category and he was, therefore, not given appointment despite the vacancies available.

3. Being aggrieved by the manner in which selections were made for appointment in the visually handicapped category, the Respondent No.1 filed a Writ Petition, being Writ Petition (Civil) No.5338 of 2007, before the Delhi High Court. The same was subsequently withdrawn since it was the Central Administrative Tribunal only which had jurisdiction to entertain such matters at the first instance. The Respondent No.1, accordingly, withdrew the Writ Petition, with liberty to approach the Central Administrative Tribunal. Thereafter, he filed an application under Section 19 of the Administrative Tribunals Act, 1985, which was registered as O.A. No.1397 of 2007, staking his claim for appointment under the reservation of vacancies for disabled categories provided for under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection, Rights and Full Participation) Act, 1995, hereinafter referred to as `the Disabilities Act, 1995'. The basic contention of the Respondent No.1 was tthat since the aforesaid Act came into force in 1996 providing a statutory mandate for reservation of 3% of the posts available for persons suffering from different kinds of disabilities enumerated in Section 33 of the Disabilities Act, 1995, such reservation ought to have been in force with effect from the date on which the Act came into force. According to the Respondent No.1, if the vacancies were to be considered from the year 1996, then instead of one vacancy being declared for the year in question, there should have been at least 7 vacancies from the reserved categories of disabilities which were interchangeable. It was, therefore, the case of the Respondent No.1 that having regard to the number of appointments made with regard to the disabled categories reserved under Section 33 of the Disabilities Act, 1995, since the Act came into force, there were at least 7 posts which could be filled up in the year 2006. However, in that year only one post from this category had been filled. It was, therefore, the case of the Respondent No.1 that being at serial no.5 of the list of successful candidates amongst the physically impaired candidates, there were sufficient number of vacancies in which he could have been appointed and that the authorities had acted contrary to the provisions of the above Act upon the faulty reasoning that the vacancies in the reserved posts could not be declared, without first identifying the same for the purposes of Sections 32 and 33 of the Disabilities Act, 1995.

4. The case of the Respondent No.1 having been negated by the Tribunal, the Respondent No.1 as indicated hereinbefore, moved the High Court and the High Court, upon accepting the Respondent No.1's case, set aside the order of the Central Administrative Tribunal dated 7th April, 2008, and allowed the Respondent No.1's O.A. No.1397 of 2007 filed before the Tribunal. While allowing the said application, the High Court, upon observing that a clear vacancy was available to which the Respondent No.1 could be accommodated on the basis of his position in the merit list, issued a mandamus to the Respondent No.1 to offer him an appointment to one of the reserved posts by issuing an appropriate appointment letter, within six weeks from the date of the order. Certain consequential orders were also passed together with cost of Rs.25,000/- to be paid by the Petitioner herein.

5. On behalf of the Government of India, which is the Petitioner herein, learned Additional Solicitor General, Ms. Indira Jaising, submitted that the submissions advanced on behalf of the Respondent No.1 which had been accepted by the High Court, were not tenable and that the Government of India had been actively involved in complying with the provisions of the Disabilities Act, 1995, after it came into force. The learned ASG contended that the Government of India had been making reservation for physically handicapped persons in Group `C' and `D' posts from 1977 and in order to consider the growing demand from the visually handicapped persons, a meeting for identification of jobs in various Ministries/Departments was scheduled in 1985 and 416 such posts were identified in Group `A' and `B' posts. In 1986, an Office Memorandum was issued by the Department of Personnel & Training (DoPT) providing for preference to be given to handicapped person for these posts. In 1988, another Office Memorandum was issued by the Government of India indicating that the identification done in the year 1986 would remain valid till the same was modified. After the Act came into force in 1996, a further Office Memorandum was issued, whereby reservation of physically handicapped persons in identified Group `A' and Group `B' posts/services was extended to posts which were to be filled up through direct recruitment. Learned ASG submitted that in 1999 the Ministry of Social Justice & Empowerment constituted an Expert Committee to identify/review posts in categories `A, `B', `C' and `D', in which recommendations were made for identification of posts for the visually handicapped persons. The report of the Expert Committee was accepted by the Ministry in 2001 and posts were duly identified for persons with disabilities. Learned ASG, however, made it clear that the 416 posts, which had been identified in 1985, did not include All India Services and that for the first time in 2005, the posts of the Indian Administrative Service were identified in compliance with the provisions of Section 33 of the Disabilities Act, 1995 and pursuant to such identification, the posts were reserved and filled up. Ms. Jaising also submitted that reservation upto 3% of vacancies in the reserved posts were, accordingly, identified with effect from 2006 and the claim of the Respondent No.1 for appointment on the basis of the argument that the reservation should have taken effect from 1996 when the Act came into force, was liable to be rejected.

6. Appearing in-person, Mr. Ravi Prakash Gupta, the Respondent No.1 herein, strongly defended the impugned judgment of the High Court and urged that the Special Leave Petition filed by the Government of India was liable to be dismissed. Mr. Gupta submitted that the fact that he was completely blind was known to the Petitioners and their respective authorities from the very beginning, since he had annexed his blindness certificate with his original application in the proforma provided by the Union Public Service Commission (U.P.S.C.), which showed the percentage of his blindness as 100%. However, the main thrust of Mr. Gupta's submissions was that when the Disabilities Act, 1995, came into force in 1996, it was the duty of the concerned authorities to reserve 3% of the total vacancies available immediately thereafter. The plea of non-identification of posts prior to the year 2006 was only an attempt to justify the failure of the Petitioners to act in terms of the Disabilities Act, 1995. Mr. Gupta submitted that the High Court had negated such contention made on behalf of the Petitioners and rightly directed the Petitioners to calculate the number of vacancies in terms of Section 33 of the above Act from 1996 when the said Act came into force.

7. Mr. Gupta then submitted that in terms of the Department's OM No.3635/3/2004 dated 29th December, 2005, reservations have been earmarked and should have been made available from 1996 itself and in the event the vacancies could not be filled up owing to lack of candidates, the same could have been carried forward for two years after which the same could have been treated as lapsed. Mr. Gupta submitted that although the Petitioners were fully aware of the said Office Memorandum, they chose not to act on the basis thereof and as admitted on behalf of the Government of India, the IAS cadre was identified in 2006 for the purposes of Section 33 of the Disabilities Act, 1995. In fact, the Act remained on paper as far as visually challenged candidates were concerned and only after the judgments of the Delhi High Court in the case of Ravi Kumar Arora and in the case of T.D. Dinakar were delivered, that the identification process was started. Mr. Gupta submitted that it would be pertinent to mention that the two above-mentioned candidates were appointed in the Civil Services without waiting for identification of their respective services on the orders of the High Court.

8. Mr. Gupta submitted that the plea of non- identification of posts in the IAS till the year 2006 could not absolve the petitioners of their statutory obligation to provide for reservation in terms of Section 33 of the aforesaid Act.

9. During the course of hearing, leave had been granted to one A.V. Prema Nath and one Mr. Rajesh Singh to intervene in the proceedings. The submissions made by the Respondent No.1 have been repeated and reiterated on behalf of the Intervenor No.1, Shri A.V. Prema Nath by A. Sumathi, learned Advocate. His written submissions are embellished with references to various decisions of this Court, including the decision in Francis Coralie Mullin vs. Administrator, Union Territory of Delhi & Ors. [(1981) 1 SCC 608], regarding the right to life under Article 21 of the Constitution. The main thrust of the submissions is with regard to the denial of rights to persons with disabilities under Section 33 of the Disabilities Act, 1995, which prevent them from enjoying their fundamental rights to equality and the right to live, by the State.

10. More detailed submissions were made by Mr. S.K. Rungta, learned Advocate, appearing on behalf of the Intervenor No.2, Mr. Rajesh Singh, and it was also sought to be pointed out that the said intervenor was himself a candidate from amongst the visually impaired candidates and had, in fact, been placed at serial no.3 in rank in the merit list for visually impaired candidates in the Central Services Examinations, 2006, whereas the Respondent No.1 had been placed at serial no.5. In other words, what was sought to be projected was that Shri Rajesh Singh had a better claim for appointment from amongst the visually impaired candidates over the Respondent No.1 and that if the vacancies in the reserved category were to be calculated from 1996 and even from 2001, when identification of posts in respect of Civil Services forming part of the IAS Cadre was sought to be effected and a notification to that effect was issued, the Respondent No.1 could not have been appointed.

11. It was further submitted that in the decision of this Court in The National Federation of Blind vs. Union Public Service Commission & Ors. [(1993) 2 SCC 411], the demand by blind candidates for being permitted to write the examination in Braille script, or with the help of a Scribe, for posts in the IAS was duly accepted for recruitment to the lowest posts in the service reserved for such persons. It was also held that blind and partially blind persons were eligible for appointment in Government posts. It was submitted that the submissions made on behalf of the Petitioners that the notification in respect of the services in respect of the Group `A' and `B' services in the IAS in 2005 was not a fresh exercise, but only an attempt to consolidate and strengthen the identification already available and that such an exercise could at best be said to be enabling and supplementary action for the smooth implementation of the statutory provisions containing the scheme of reservation for persons with disabilities, could not be taken as an excuse to postpone the benefit which had already accrued to candidates falling within 3% of the vacancies indicated in Section 33 of the Disabilities Act, 1995. It was also urged that after the issuance of OM dated 29th December, 2005 and OM dated 26th April, 2006, there was hardly any room for the Government of India to deny the benefit of reservation to persons with disabilities, including the blind, in Civil Services encompassing the IAS from the year 1996 itself. Furthermore, since the Act itself did not make any distinction between Group `A' and Group `B' services and Group `C' and Group `D' services, it was not available to the Government of India to contend that since identification had been done only for Group `C' and Group `D' services, prior to the year 2005, reservation in respect of Group `A' and `B' services, which include the IAS, for which identification was commenced in 2005, would only be available thereafter.

12. On behalf of the Intervenor No.2, it was submitted that the Special Leave Petition was liable to be dismissed with exemplary costs.

13. We have examined the matter with great care having regard to the nature of the issues involved in relation to the intention of the legislature to provide for integration of persons with disabilities into the social main stream and to lay down a strategy for comprehensive development and programmes and services and equalization of opportunities for persons with disabilities and for their education, training, employment and rehabilitation amongst other responsibilities. We have considered the matter from the said angle to ensure that the object of the Disabilities Act, 1995, which is to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific Region, is fulfilled.

14. That the Respondent No.1 is eligible for appointment in the Civil Services after having been declared successful and having been placed at serial no.5 in the disabled category of visually impaired candidates, cannot be denied. The only question which is relevant for our purpose is whether on account of the failure of the Petitioners to identify posts for persons falling within the ambit of Section 33 of the Disabilities Act, 1995, the Respondent No.1 should be deprived of the benefit of his selection purportedly on the ground that there were no available vacancies in the said category. The other question which is connected with the first question and which also requires our consideration is whether the reservation provided for in Section 33 of the Disabilities Act, 1995, was dependent on identification of posts suitable for appointment in such categories, as has been sought to be contended on behalf of the Government of India in the instant case.

15. Although, the Delhi High Court has dealt with the aforesaid questions, we wish to add a few observations of our own in regard to the objects which the legislature intended to achieve by enacting the aforesaid Act. The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Grade `A' and `B' posts in the I.A.S. was undertaken after the year 2005 is not of much substance. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Grade `A', `B', `C' and `D' posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said Section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.

16. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment (emphasis added). For the sake of reference, Sections 32 and 33 of the Disabilities Act, 1995, are reproduced hereinbelow :

"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;

(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."

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.

18. The various decisions cited by A. Sumathi, learned Advocate for the first intervenor, Shri A.V. Prema Nath, are not of assistance in the facts of this case, which depends on its own facts and interpretation of Sections 32 and 33 of the Disabilities Act, 1995.

19. We, therefore, see no reason to interfere with the judgment of the High Court impugned in the Special Leave Petition which is, accordingly, dismissed with costs. All interim orders are vacated. The petitioners are given eight weeks' time from today to give effect to the directions of the High Court.

20. The petitioners shall pay the cost of these proceedings to the respondent No.1 assessed at Rs.20,000/-, within four weeks from date.


................................................J.

(ALTAMAS KABIR) 

................................................J.

(CYRIAC JOSEPH) 

New Delhi Dated:7th July, 2010.

Tuesday, March 23, 1993

Supreme Court of India | National Federation Of Blind Vs. Union Public Service Commission | Dated 23 Mar 1993

Context of the Judgement

The visually impaired persons constitute a significant section of our  society. As  it is  necessary  to  encourage   their participation  in every walk of life, the Central  Ministry of Welfare has been undertaking various measures to  utilise their potentialities.  The Governments have launched schemes to  educate, train and provide them with useful employment. The Central Government has provided 3% reservation in  Group C and D posts for PH candidates (including blind and partially blind, while demand is growing for reservations in Group A and B posts.

The Standing Committee of the Ministry of Welfare undertook identification of jobs in these categories and submitted its report on October 31, 1986.  Para 8 thereof related to the blind. It took note of reading and writing deficiency and suggested  the provision of allowance.  And found  that the specified 416 posts in Group A and B are suitable for  blind and  partially blind.  So, the Ministry of Personnel  issued office memorandum dated November 25, 1986 a  accepting the report and took policy decision regarding identification  of jobs for the physically handicapped persons in Group A and B posts filled to be by direct recruitment in Central  Government Services and Public Sector Undertakings.

This  court  examined  the memorandum  and  found  that the Government had taken cognizance of the identified jobs; that the Government had decided about the recruitment of  handicapped persons  to these posts; that the departments would supplement the list further;  that the Ministries/ Departments would inform the UPSC about preferential treatment to handicapped candidates; that  the UPSC had agreed in principle to  give preference; and  that the Department of Personnel and Training would  be issuing general instructions for the purpose.

However, the decisions were not implemented for seven years. Therefore, the petitioner approached Hon'ble Supreme Court seeking a  writ  in the nature of mandamus directing the Union of India and the UPSC to permit the blind candidates to compete for the I.A.S. and Allied Services and to provide them facility of  writing the  civil services examination either in Braille Script  or with the help of a scribe.

On hearing the counsel for the petitioner, himself  visually handicapped, the Hon'ble Court, held as below :-

The performance of the counsel for the  petitioner before us  has amply proved the point that  the  visually handicapped  persons can perform the jobs entrusted to them with  equal  efficiency.  However the question  of  giving preference  to the handicapped in the matter of recruitment to  the identified posts is a matter for the  Government  of India  to decide.  The Government of India is  commended  to decide the question of providing preference/reservation  to the handicapped in Group A and B Posts.

The Hon'ble Supreme Court further held that there are number of post  which are  required  to  be  filled  through the  civil  services examinations and other competitive examinations conducted by the  Commission,  so the observations of the UPSC  that the posts  identified as suitable to be held by  the  physically handicapped  persons, particularly those identified for the blind  were  not  required  to be filled  on  the  basis  of competitive   examination  conducted  by   the Commission, appeared to be incorrect.  Group  A  and  B posts in  the category  of  Administrative Officers  are necessarily to be filled as a result of  civil services  examination  held  by the UPSC.  If  some  of the identified  posts in the Indian Administrative Service and other  Allied  Services can  be  filled  from amongst the visually  handicapped persons, there was no reason why they should not be permitted to sit and write the civil  services examination.

Judgement:

Equivalent citations: 1993 AIR 1916, 1993 SCR (2) 556

PETITIONER: NATIONAL FEDERATION OF BLIND
Vs.
RESPONDENT: UNION PUBLIC SERVICE COMMISSION AND OTHERS

DATE OF JUDGMENT 23/03/1993

BENCH:
KULDIP SINGH (J)
KASLIWAL, N.M. (J)

 CITATION:
 1993 AIR 1916          1993 SCR  (2) 556
 1993 SCC  (2) 411     JT 1993 (2) 541
 1993 SCALE  (2)181

ORIGINAL JURISDICTION
Writ Petition (C) No. 655 of 1991. 
(Under Article 32 of the Constitution of India). 

Santosh Kumar Rungta and R.P. Gupta for the Petitioner.
V.C. Mahajan, Ms. Niranjana Singh and Ms. A. Subhashini for the Respondents.

Judgment Authored by KULDIP SINGH, J.

National Federation of Blind a representative body of visually handicapped persons in India has filed this petition under Article 32 of the Constitution of India seeking a writ in the nature of mandamus directing the Union of India and the Union Public Service Commission to permit the blind candidates to compete for the Indian Administrative Service and the Allied Services and further to provide them the facility of writing and civil services examination either in Braille-script or with the help of a Scribe. Braille is a system of writing for the blind in which the characters consist of raised dots to be read by the fingers. Further relief sought in the petition is that Group A and B posts in Government and public sector undertakings which have already been identified for the visually handicapped persons be offered to them on preferential basis.

The visually handicapped constitute a significant section of our society and as such it is necessary to encourage their participation in every walk of life. The Ministry of Welfare, Government of India has been undertaking various measures to utilise the potentialities of the visually handicapped persons. The Central as well as the State Governments have launched several schemes to educate, train and provide useful employment to the handicapped. The Central Government has provided reservations to the extent of 3% vacancies in Group C and D posts for the physically handicapped including blind and partially blind. There has been a growing demand from the visually handicapped persons to provide reservations for them in Group A and B posts under the Central Government. The Ministry of Welfare, Government of India has a standing Committee or identification of jobs in various Ministries/Departments and public sector undertakings for the physically handicapped. By an order dated December 30, 1985 the Government of India directed the Standing Committee to undertake the identification of jobs for the handicapped in Group A and B Services under the Government and public sector undertakings.

The Committee submitted its report which was published on October 31, 1986. Copy of the report has been placed on the record of this petition. In the introduction to the report given by Mr. M.C. Narsimhan, Joint Secretary to Government of India and Chairman, Stating committee on identification of jobs for handicapped, it has been stated as under:-
"A Sub Committee, which was set up to assist the Standing Committee visited a large number of Public Sector Undertakings and observed people actually working in a variety of jobs and the working conditions in which these jobs are performed. The Sub Committee had detailed discussions with the Chiefs and Senior Officers of the Public Sector Undertakings as also with officers of the Central Government Departments. A fist of the public sector undertakings and the list of the officers of the Undertakings with whom the Sub Committee had discussions is annexed to the report. The Committee after detailed discussions and on- the-spot study has prepared a comprehensive list of 416 categories in Group A and B posts in Government Offices and Public Sector Undertakings, with their jobs descriptions, the physical requirement of each group of job and matched them with various categories of disabilities."
The Committee devoted special attention to the visually handicapped. Para 8 of the report which relates to the blind is as under:-

"However, in the case of the blind the position is somewhat different. Seeing, reading, writing and movement are essential ingredients of most Government jobs. Therefore, a similar approach in respect of blind persons may be difficult. It would not be possible to generalise that blind person can do most jobs as we have found for those with locomotor and hearing disabilities. The Committee found that in higher posts is Government the help of a personal assistant or a stenographer is generally available. But this facility is. not available even in higher posts in public sector undertakings. Wherever this facility is available a blind person may not find it difficult, in certain groups of posts, to handle the job. It is also possible, in relation to other posts where stenographic assistance is not available that some other facilities can be provided to a blind employee. To compensate 'reading deficiency, readers' allowance can be provided to blind employees to enable them to engage a reader.

Similarly, to compensate for "writing deficiency", the blind employee should be required to know typing. Adequate knowledge of typing should be prescribed as an essential qualification for blind employees for public employment. Where mobility may also be one of the main ingredients of a job it is difficult to compensate blind employees for this "deficiency. The Committee would also emphasise that the blind employee should be fully responsible for the duties assigned to them, despite the provision of reader's allowance and typing skill. The Committee would also suggest that the maximum reader's allowance should be limited to Rs.200 p.m. to blind employees recruited to Group A and B post.' The Committee has identified about 416 categories of Group A and B posts which are suitable for the handicapped. The Committee has further specified that the visually handicapped (blind and partially blind) are suitable for appointment to the following categories of Group A and B post:-

No. in the List       Category of       Group
Annexed to the Post
Report
------------------------------------------------------------
178 to 187      Hindi officers                    A & B
191 to 192      Job Analyst                    A & B
193 to 199      Labour Welfare Officers     A & B    
200 to 209      Law Officers                    A & B
237 to 242      Personal Assistants            B
243 to 256      Personnel Officers            A & B
279 to 291      Public Relations Officers    A & B
295 to 317      Research Officers            A & B
354 to 363      Training Officers            A & B
364 to 376 Administrative Officer
        (Non Secretarial)    A
377 to 384      Administrative Officers
       (Secretarial-Sr.)    A
385 to 401 Administrative Officers
        (Secretarial-Junior)            A & B
409          Asstt. Admin. Officer
------------------------------------------------------------

We have only quoted the list of categories from the report to illustrate the point that the Committee appointed by the Government has in its report identified certain categories of posts to which the blind and the partially-blind can be appointed.

Government of India Through Ministry of Personnel issued office memorandum dated November 25, 1986 wherein it accepted the report of the Committee and took a policy decision that in respect of the posts identified by the Committee the handicapped persons shall be given preference in the matter of recruitment to those posts. The office memorandum is re-produced hereunder:
"No.F.36034/4/86-Estt.(SCT) 
Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training .............. 
New Delhi, the 25th November, 1986 
OFFICE MEMORANDUM 
Subject:- Identification of jobs for the physically handicapped persons in Groups 'A' and 'B' posts filled by direct recruitment in the Central Government services and Public Sector Undertakings. 
The undersigned is directed to say that with a view to effecting optimum utilisation of potentialities of physically handicapped which constitutes a significant section of the population in the country, the Ministry of Welfare constituted a Standing Committee for identification of jobs for the physically handicapped in the Central Government services and Public Sector Undertakings. 
The Standing Committee on identification of jobs set up a sub-Committee for on-the-spot identification of jobs for the physically handicapped persons in Group 'A and 'B' posts after making an in depth study of Undertakings as well as in consultation with the concerned authorities. 
This sub Committee in its Report (submitted to the parent Committee) identified 420 jobs in Group 'A' and Group posts/services alongwith the physical requirements and functional classifications of disabilities indicating what jobs can be held by each category of disabled people and with what disability. It has been decided that in respect of identified posts which can be held by physically handicapped persons preferences to physically handicapped persons will be ,given in the matter of recruitment to those posts. A copy of the report of the Committee referred to in para-1 is enclosed for information guidance and necessary action. The list of jobs identified by the Committee on suitable for being held by physically handicapped persons is not exhaustive. 
The Ministries/Departments can further supplement the list based on their knowledge for jobs requirements, essential qualifications etc. The Ministries/Departments after identifying all the posts which can be held by physically handicapped persons may inform the UPSC at the time of sending their requisitions for filling vacancies in respect of those posts, that preference is to be given to physically handicapped persons in the matter of recruitment. 
The UPSC have agreed in principle to give preference to physically handicapped persons in filling the identified posts. The Department of Personnel and Training will be issuing general instructions to enable preference being given to the physically handicapped persons in such cases. 
The Ministry of Finance etc. are requested to bring these instructions to the notice of all concerned.
Sd/-
(BATA K, DEY)
DIRECTOR (JCA)' 
From the office memorandum quoted above it is obvious that the Government of India has taken the following policy decisions to implement the Committee report:-
1. The Government of India has taken cognizance of the fact that the Standing Committee on identification of jobs through its Sub-Committee has identified 420 jobs in Group A and Group B posts/services along with the physical requirements and functional Classifications of disabilities indicating what jobs can be held by each category of disabled people and with what disability.
2. The decision has been taken that in respect of identified posts which can be held by physically handicapped persons preference to physically handicapped persons will be given in the matter of recruitment to those posts.
3. The list of jobs identified by the Committee is not exhaustive, the Ministries/Departments can further supplement the list based on their knowledge of job requirements, essential qualifications etc.
4. The Ministries/Departments after identifying all the posts which can be held by physically handicapped persons may inform the Union Public Service Commission at the time of sending their requisitions for filling vacancies in respect of those posts, that preference is to be given to physically handicapped persons in the matter of recruitment.
5. The Union Public Service Commission has agreed in principle to give preference to physically handicapped persons in filling identified posts.
6. The Department of Personnel and Training will be issuing general instructions to enable preference being given to the physically handicapped persons in such cases. 
Mr. S.K Rungta, learned counsel for the petitioner has contended that the memorandum dated November 25, 1986 was issued more than seven years back but so far the decisions taken therein have not been implemented. Mr. Rungta (himself visually handicapped) has argued his case with utmost clarity.  Mr. Rungta was fully conversant with all the relevant annexures to the petition. He referred to the relevant pages in the bulky paper book with perfect ease. We did not feel even for a moment that the case was being argued by a visually handicapped lawyer. Mr. Rungta's performance before us amply proves the point that the visually handicapped persons can perform the jobs entrusted to them with equal efficiency.

The question of giving preference to the handicapped in the matter of recruitment to the identified posts is a matter for the Government of India to decide. The matter is pending for decision with the Government of India for the last several years. While appreciating various measures undertaken by the Government to provide useful employment to the handicapped persons we commend the Government of India to decide the question of providing preference/reservation to the handicapped in Group A and B posts as expeditiously as possible.

So far as the claim of visually handicapped for writing the civil services examinations, in Braille-script or with the help of Scribe, is concerned, we are of the view that their demand is legally justified.

The fist 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. 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 filled as a result of civil services examination by the Union Public Service Commission. If some of the posts in the Indian Administrative Service and other Allied Services, as identified by the Committee, can be filled 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.

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.

Petition allowed partly.

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