Hon'ble S.C. Chaurasia,J.
[Delivered by Hon'ble Mr. Justice Devi Prasad Singh]
1.Delay in filing special appeal, is condoned.
2.The instant special appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952, has been preferred against the impugned judgment and order dated 27.7.2007 passed by Hon'ble Single Judge in Writ Petition No.2393 (S/S) of 2001: Smt. Anu Bath. Vs. State of U.P. & others whereby, the writ petition filed by the appellant was dismissed on the ground that total number of vacancies is only 2 hence no reservation can be granted to physically handicapped person to the extent of 2% in pursuance of the provisions contained in Uttar Pradesh Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters & Ex-Servicemen), Act, 1993 (in short 1993 Act).
3.Parliament has also provided reservation to the physically handicapped persons by enacting the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short 1995 Act). Under Section 33 of 1995 Act, reservation to the extent of 3% has been provided to physically handicapped persons. In 1993 Act, the State provided reservation to the extent of 2% later on, in the year 1997 by amending the Act, the reservation has been enhanced to 3% making it at par with the Central Act.
4.The controversy relates to reservation against group-A vacancies of the Collectorate of the district in pursuance of provisions contained in U.P. District Officer (Collectorates) Ministerial Services Rules, 1980 (in short 1980 Rules. Under 1980 Rules, various posts of the Collectorate, have been bifurcated into various categories. Under Rule 5 of 1980 Rules, the posts falling under the category-A, include Assistant Bill Clerk, Ahalmad, Naib Nazir (Grade-II), Library Clerk, Assistant Routine Clerk, Assistant Revenue Clerk, Assistant Revenue Assistant (Grade-III), Teleprinter Operator, Assistant Vasil Baqi Navis, and so on. The pay scale of the posts of Group A category, is Rs.200-320 as revised from time to time.
5.The petitioner claimed appointment on the post of Assistant Vasil Baqi Navis in pursuance of reservation provided by 1993 Act read with 1995 Act to the extent of 2% which is now 3%. According to petitioner's counsel, the total sanctioned strength of posts of Group-A category, is 92 out of which in case 2% reservation is provided in round figure, it shall come to 2 posts.
6.While filing writ petition, before the Hon'ble Single Judge, specific pleading was made in para-5 of the writ petition that total sanctioned posts are 142 (of all categories) out of which the petitioner is entitled for 2% reservation (under the Amended Act now 3% reservation). The existence of sanctioned 142 posts has not been denied. However, so far as the Category-A is concerned, according to petitioner's counsel, total sanctioned posts was 92 in number in 1980 which according to petitioner's counsel has been increased though he does not know the actual enhanced number.
7.The question cropped up is, whether 3% reservation should be provided on the total available existing vacancies or on the basis of total sanctioned strength. Hon'ble Single Judge has dismissed the writ petition keeping in view 2% reservation for physically handicapped persons out of which one post cannot be provided to them. The provisions with regard to physically persons has been given in Section 3 of 1993 Act which is reproduced as under:
"3. Reservation of vacancies in favour of physically handicapped etc.--
(1) There shall be reserved at the stage of direct recruitment,--
(i)in public services and post two per cent of vacancies for dependents of freedom fighters and one per cent of vacancies for ex-servicemen,
(ii)in such public services and posts as the State Government may, by notification, identify one per cent of vacancies each for the persons suffering from,---
(a) blindness or low vision;
(b) hearing impairment; and
(c) locomotor disability or cerebral palsy.
(2) Omitted - 31.7.1997 (3) The persons selected against the vacancies reserved under sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be placed in that quota by making necessary adjustments; if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments; if he belongs to other Backward Classes of Citizens, category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in the category by making necessary adjustments.
(4) Omitted - 31.7.1997 (5) Where, due to non-availability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled it shall be carried over to the next recruitment."
8.A perusal of Rule 3 shows that the reservation shall be provided at the stage of direct recruitment in public service and post to the extent of two per cent of vacancies for dependents of freedom fighters and one per cent of vacancies for ex-servicemen and one per cent for the persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy. The aforesaid one per cent was later on, admittedly, increased to 3% in the year 1997. However, the Central Act i.e., 1995 Act admittedly provided 3% reservation to the physically handicapped persons.
9.While considering identical issue with regard to reservation for physically handicapped persons in Writ Petition No.6047 (M/B) of 2009: National Federation of The Blind U.P. Branch. Vs. State of U.P. and others, a Division Bench of this Court in which one of us (Hon'ble Mr. Justice Devi Prasad Singh) was a member, had admitted the writ petition and directed by the order dated 26.11.2010, to the respondents to provide reservation to physically handicapped persons after finding sanctioned strength of various categories of posts available in the State of U.P. The Division Bench (supra) referred the judgment and order dated 7.10.2010 passed by Hon'ble Supreme Court in Special Leave Petition (C) No.14889/2009: Government of India through Secretary and another. Vs. Ravi Prakash Gupta and another. The observations made by Hon'ble Supreme Court in the case of Ravi Prakash Gupta (supra), is reproduced as under:
"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."
10.From the plain reading of the aforesaid directions issued by Hon'ble Supreme Court while affirming the judgment of Delhi High Court, it is obvious that their lordships of Hon'ble Supreme Court had affirmed the order of Delhi High Court to identify the vacancy and provide reservation in pursuance of 1995 Act.
11.In view of the above, since the sanctioned strength of Group-A post is, 92 the person belonging to physically handicapped will have right to claim reservation in pursuance of 1995 Act (supra) as well as the State Act (supra) as amended in the year 1997 (supra). In view of the above, the reservation with regard to physically handicapped person should be decided on the basis of sanctioned strength and not on the basis of vacancies available at a point of time. The proposition with regard to reservation on sanctioned strength has already been dealt with in the case reported in 2008 (26) LCD 1691: Dharam Pal Singh Chauhan and another. Vs. State of U.P. and others.
12.Accordingly, while dismissing the writ petition, Hon'ble Single Judge has applied incorrect proposition of law intending to decide the reservation for physically handicapped persons on the basis of available vacancies. The finding should have been recorded on the basis of sanctioned strength of category-A. From the perusal of Rules, relied upon by the petitioner's counsel, it appears that various category of posts provided in Rule 5, of 1980 Rules, constitute a different category and cadre. Since the pay scale of various categories are different on account of different pay scales, right, duties and working conditions, the reservation should be applied on the basis of sanctioned strength of each category provided under Rule 5 of 1980 Rules. In view of the above, the impugned judgment and order passed by the Hon'ble Single Judge seems to be not sustainable and the appeal deserves to be allowed.
13.Accordingly, we allow the appeal setting aside the judgment and order dated 27.7.2007 passed by Hon'ble Single Judge in Writ Petition No.239 S/S) of 2001: Smt. Anu Bath. Vs. State of U.P. & others. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 11.1.2001 contained in Annexure No.2 to the writ petition (supra) with consequential benefits. A writ of mandamus is issued directing the opposite parties that while making any appointment on various posts under Rule 5 of 1980 Rules, they shall provide reservation to the physically handicapped persons to the extent of 3% in accordance with Rules keeping in view the observations made hereinabove on the basis of sanctioned strength of various categories of the posts provided under 1980 Rules. No selection/appointment shall be made henceforth unless reservation is provided to physically handicapped persons keeping in view the observations made hereinabove.
No costs.