National Federation Of The Bilnd U ... vs State Of U P Thr.Chief Secy Lal ...
2013 Latest Caselaw 4224 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH, LUCKNOW
 
                                                                A.F.R.
 
Court No. - 27
 

 
Case :- MISC. BENCH No. - 6047 of 2009
 
Petitioner :- National Federation Of The Bilnd U P Branch
 
Respondent :- State Of U P Thr.Chief Secy Lal Bahadur Shastri Bhawan
 
Counsel for Petitioner :- Sudhir Kumar Misra,Arun Kumar Mishra
 
Counsel for Respondent :- C.S C,Rajnish Kumar
 

 
Hon'ble Devi Prasad Singh,J.

Hon'ble Ashok Pal Singh,J.

1. Heard Mr. S.K. Rungta, learned counsel appearing for the petitioners assisted by Mr. Sudhir Kumar Mishra and Smt. Sangeeta Chandra, learned Addl. Chief Standing Counsel for the State as well as Mr. Rajneesh Kumar, learned counsel appearing on behalf of U.P. Public Service Commission.

2. Learned counsel for the petitioners is a blind person pursuing the present controversy for his colleagues who have not been given appointment by the State Government in pursuance to statutory mandate provided by the "Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995" (in short, 1995 Act). The 1995 Act came into force on 7.2.1996. According to the petitioners' counsel, in spite of repeated orders passed by this Court, the Government has been failed to comply with statutory mandate to identify and fill up 1% vacancies by blind persons. He further submits that admittedly, the State Government has not filled up the vacancies ignoring the statutory mandate and the judgment of Hon'ble supreme court decided on 7.7.2010 in Special Leave Petition (C) No.14889 of 2009 Government of India versus Ravi Prakash Gupta and another.

3. While assailing the conduct of the State Government, it is vehemently argued by the petitioners' counsel that the State of U.P has adopted dilatory tactics by not complying with statutory mandate provided under 1995 Act.

4. On the other hand, Smt. Sangeeta Chandra, learned Addl. Chief Standing Counsel submits that it is not adversarial of litigation and the government is very well trying to identify and fill up the quota of blind persons. At no stage, the government is trying to curtail the rights of blind persons.

5. The petitioners' counsel has submitted a written argument also. The factual controversy depicted therein has not been disputed by other side. From the argument advanced by the parties' counsel and the pleading on record, the factual position is discussed hereinafter.

6. The foundation of the present writ petition dates back to the office memorandum dated 9.6.2009 whereby the State of U.P has proceeded with special drive for recruitment of candidates to clear the backlog vacancies. While proceeding to fill up the backlog vacancies through special recruitment drive, no effective steps were taken to fill up the quota of blind persons. Hence, the petitioners approached this Court.

7. It was as far back as in the year 1972, the Government of U.P issued an order providing 2% reservation for all categories of persons with disabilities including blind, hearing impaired and locomotor disabled. On 8.6.1982, the government took a decision to fill up the vacancies of blind persons through special recruitment drive since they were not considered for appointment in pursuance to the aforesaid Government Order. In consequence thereof, 213 blind candidates were appointed by the State Government to fill up the backlog vacancies between 1972-82. It was in the year 1995, the Parliament enacted 1995 Act(supra). Apart from other things, the 1995 Act provides for 3% reservation to the persons with disabilities in all establishments of appropriate Government to be equally distributed to the extent of 1% each among them and utilisation of vacancies in identified posts for appointment against 1% reservation for each of three categories of persons with disabilities, viz. Blind and low vision, hearing impaired and locomotor disabled and cerebral palsy respectively.

8. The State Government in pursuance to the statutory mandate issued an order dated 20.9.1997 to implement the Scheme of reservation for physically impaired persons. It appears that from time to time recruitments were done but the statutory mandate was not complied with in its letter and spirit.

9. Between 1999 to 31.3.2010, 1,57,510 vacancies were advertised for Group C post. 79826 vacancies were filled up. It has been stated that out of 79826, 2445 were disabled but the number of blind was only 49. In case the quota of blind persons are calculated at the rate of 1%, then it will come to 798. The respondents have not provided detail with regard to factual position of subsequent period.

10. 3955 Group D vacancies were advertised during the aforesaid period, out of which 3733 were appointed which includes 92 physically disabled persons but only 11 were blind persons although the quota of blind comes to 37. It has been brought on record that from 1.2.2007 to November, 2010, U.P. Secondary Board made appointments against 2763 vacancies out of which 79 were disabled but quota for the blind was not made available though in terms of 1% reservation, 27 blind persons ought to have been appointed.

11. 7968 persons were appointed as Assistant Teacher out of which, 238 were disabled. Submission is that though 79 blind persons ought to have been appointed but no one succeeded to seek appointment under the quota. It has been brought on record that in 2008, 88,385 persons were appointed out of which 1932 were disabled and 399 persons were blind. Against the vacancies of 88,385, total 884 blind persons should have been appointed but it was not done.

12. From the factual matrix on record discussed hereinabove, there appears to be no room of doubt that the State has not taken the case of blind persons seriously. It has been stated that the rights of physically disabled persons including the blinds cannot be curtailed by the State from being selected and appointed in terms of the statutory mandate. It is further stated that in accordance with the Government Order dated 3.2.2008, all vacancies under Group C and Group D posts both identified and unidentified should have been taken into account but it appears that the State Government acted in violation of its own office memorandum dated 3.2.2008 while computing the quota of blind persons and proceeding with appointment and selection.

13. Sections 32 and 33 of the 1995 Act are relevant for disposal of present controversy. For convenience, they are reproduced as under :

"Section 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.

Section 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."

14. A plain reading of the aforesaid provisions reveals that it shall be obligatory on the part of the State to identify the posts in the establishments which can be reserved for the persons with disability. The Parliament to its wisdom used the word, "establishments" which means the different posts across the table which shall include all the categories of posts in the government. In case there are some posts in Class-II or Class-I cadre which can be very well occupied by blind persons or physically impaired or disabled persons, then it is not permissible for the State not to identify the posts. Neither Section 32 nor Section 33 of 1995 Act makes any distinction with regard to Class A, B, C and D posts. Of course, option is open for the Government to identify the posts.

15. In the present case, it appears that the government assumed that identification is to be done only of Class III and Class-IV posts and not the posts falling within the higher category of government department. While identifying the posts, it is necessary for the government to look into the nature of job of different categories including Class-I, Class-II, Class-III and Class-IV and find out whether the blinds may be accommodated and discharge duty. Under Section 33, reservation has been made from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy.

16. Mr. Rungta while assailing the conduct of the State invited attention to some of the advertisements which reveals that while advertising the vacancies, conditions have been imposed that the low vision or the blind persons should be a person who can drive a cycle. We feel that such condition imposed by the appointing authority seems to be against the spirit of Clause (1) of Section 33. By imposing condition that a candidate should possess efficiency to ride a cycle virtually amounts to curtail the statutory rights available to the blind persons under Clause (1) of Section 33. No such condition should have been imposed by the government while advertising the vacancies for any of the posts within its jurisdiction to select and recruit the blind persons. The medical certificate furnished by the blind persons that he or she is blind or physically impaired will suffice to claim appointment under the provisions of 1995 Act and any such condition imposed by the government while advertising the vacancies shall be against the letter and spirit of Section 33 of the 1995 Act.

17. Our attention has been invited to the judgment of Hon'ble Supreme Court in the case of Ravi Prakash Gupta (supra). Their Lordships while reaffirming the judgment of Delhi High Court has held as under :

"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."

18. Hon'ble Supreme Court has upheld the judgment of Delhi High Court long back as on 7.7.2010. Even after lapse of 2 ½ years, neither the statutory mandate nor the judgment of Hon'ble supreme Court has been complied with by the State Government of U.P in its totality.

19. Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel submits that the government has identified the posts and issued the Government Order dated 13.1.2011 under Section 32 of 1995 Act even for Group A and Group B posts. Mere identification on the part of the government without complying with the provisions of Section 33 is not sufficient. The identification is of 13.1.2011 but the fact remains that the quota of blind persons necessary to be filled up have not yet been exhausted by the State by identifying the posts of Groups A, B, C and D category. The government seems to have not discharged its statutory liability.

20. The factual position discussed herein above with regard to backlog has not been disputed by the respondents while filing affidavit. Once there is backlog under the blind quota and while making selection from time to time, the whole of the quota has not been filled up and still the blinds are running from pillar to post and roaming round the State Government of U.P. for their cause and justice, it does not show that the State has acted in true spirit of law while discharging its constitutional and statutory obligation. Since the controversy relates to different departments, it is not possible for this Court to monitor the conduct of every department. It shall be appropriate that the Chief Secretary of the State be directed to meet out the requirement of law to fill up the backlog vacancies with regard to blind persons and monitor the same.

21.It has been stated by learned Addl. Chief Standing Counsel that that in some of the departments, quota has been filled up but the fact remains that the backlog pointed out by the petitioners and the existing anomalies while filling up the vacancies referred to above have not been disputed.

22.Justice is a social virtue and it may be granted only by well organised social order. With regard to concept of justice, Hans Kelsen observed :-

"No other question has been discussed so passionately, no other question has caused so much precious blood and so many bitter tears to be shed; no other question has been the object of so much intensive thinking by the most illustrious thinkers from plato to Kant, and yet this question is today as unanswered as it ever was. It seems that it is one of those questions to which the resigned wisdom applies that man can not find a definite answer, but can only improve the question. The longing for justice is man's eternal longing for happiness. It is happiness that man can not find alone, as an isolated individual and seeks in society. Justice is social virtue and it can be guaranteed by a social order." (Kelsen Hans, What is Justice ? At 1-2 (1957)

23.With the changing phase of society, the old notion of justice has undergone sea change. The orthodox approach of justice has now supplemented by modern concept of social justice to wipe the tear of lowest strata of society. The modern approach is to look at the notion of justice from the point of view of citizen to whom just treatment was due.

24.Pt. Jawahar Lal Nehru while defending Directive Principles of State Policy (Part IV of Constitution) in the Constituent Assembly debate stressed that, to quote :

"the first task of this Assembly is to free India through a new Constitution, to free the starving people, and to cloth nacked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity. The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and sufferings, so long our work will not be over. With the independence, the national revolution would be completed, but the social revolution must go on. Freedom was not an end itself, only, means to an end,... that end being the raising of the people.. to higher levels and hence the general advancement of humanity."

25. Knowledge is not vested only in the able persons. There has been great thinker, philosopher, Poets and Scientists who were physically disabled and blind but the services rendered by them made ever-lasting imprint on the sand of human history. Some of them are Tilly Aston, Louis Braille, Francis Joseph Campbell, Kenneth Jernigan, Helen Keller, Juan Carlos Gonzalez Leiva, Erik Weihenmayer, David Alexander Paterson, Surdas, John Milton.

25.Apart from above, one of the most famous and surviving legend Scientist 'Stephen Hawking' is a physically crippled person but a leading personality of Theoretical Physics.

26.Keeping in view unjustifiable approach of the State Government and lack of effective implementation of the Act, it shall be appropriate that the Chief Secretary of the State may constitute a committee headed by an officer of the rank of Secretary or Principal Secretary to monitor the vacancies falling within the quota of blind as well as physically handicapped persons. All backlog vacancies should be filled up within a period of six months in accordance with rules. The petitioners and their representative are permitted to represent their cause before the Chief Secretary of the State of U.P and who shall also provide personal hearing before the constitution of Monitoring Committee for the purpose.

27.In view of above, the writ petition is allowed. A writ in the nature of mandamus is issued directing the State Government to fill up all the backlog vacancies of blind persons to the extent of 1% in every department in case already not filled up, expeditiously, say within a period of six months. Henceforth no advertisement shall be made and vacancies shall be filled up while proceeding with recruitment in government departments, corporation and local bodies without making a provision with regard to vacancies of physically handicapped persons including blind persons.

The Chief Secretary of the Government of U.P shall constitute a Committee to monitor and ensure compliance of the judgment. All vacancies including backlog quota shall be filled up with regard to blind persons within the aforesaid period of six months. The Chief Secretary of State of U.P shall file a personal affidavit in this Court indicating under what manner the backlog quota of blind persons has been filled up. He shall also grant time to the representative of blind persons including Mr. S.K. Rungta who is present in this Court to invite his attention to different backlog quota as well as irregularity committed by different departments in filling the vacancies meant for blind persons and pursue their cause.

Registry to take follow up action. The affidavit filed by the Chief Secretary shall be placed before the Bench immediately after six months.

The writ petition is allowed accordingly. No order as to costs.

Order Date :- 17.7.2013

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