Allahabad High Court

Dhruv Kumar Singh vs State Of U.P. And 2 Others on 21 December, 2015

Bench: V.K. Shukla, Mahesh Chandra Tripathi




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 29
 
Case :- WRIT - A No. - 67780 of 2015
 
Petitioner :- Dhruv Kumar Singh
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Vijay Gautam,Ambarish Chatterji
 
Counsel for Respondent :- C.S.C.,Nisheeth Yadav
 

 
Hon'ble V.K. Shukla,J.

Hon'ble Mahesh Chandra Tripathi,J.

[Oral: M.C. Tripathi, J.]

Dhruv Kumar Singh is before this Court for quashing the impugned preliminary result dated 27.11.2015 for the post of Assistant Prosecution Officer ( in short "APO"), which is not according to the Reservation Policy enclosed as Annexure-1 to the writ petition; for directing the respondent authorities to declare the petitioner as selected in the Preliminary Examination on the post of APO by giving benefit of Handicapped Category (both legs) against the Advertisement dated 29.04.2015 and for directing the respondent authorities to permit the petitioner to further participate in the selection process for the post of APO.

Brief facts giving rise to the writ petition are that the Uttar Pradesh Public Service Commission (in short "UPPSC") issued an Advertisement No.A-2/E-1/2015 dated 29.04.2015 for 372 posts of APO. Pursuant to the advertisement, the petitioner had applied under the General Category (Physically Handicapped) as has been provided from Sl. No.16.3.1 to 16.3.7 in the form itself. The same is reproduced as under:-

Sl.No.

PH Category [LOCOMOTOR OR CEREBRAL PALSY]

Selected PH Category

16.3.01

Both Legs affected but not arms (BL)

BL-yes

16.3.2

Both Arms affected (BA)

16.3.3

Both Legs and Both Arms affected (BLA)

BLA

16.3.4

One Leg affected (right or left) (OL)

16.3.5

One Arm affected (right or left) [OA]

16.3.6

--Back and Hips (cannot sit or stoop) [BH]

16.3.7

Muscular Weakness and limited physical endurance [MW]

The petitioner had categorically mentioned that he belongs to category 'BL' (both legs affected but not arms). As such the petitioner was not barred from entering into examination under the aforesaid physical category and the petitioner falls under 'BL' category at Sl.No. 16.3.1, and, therefore, he is entitled for the reservation under the handicapped category. As per the advertisement reservation for physically handicapped person has been provided as 11 seats, which is further specified as 3 posts for OA (one arm), 4 posts of PB (partial blind) and 4 posts of PD (partial dumb).

The result of preliminary examination was declared on 27.11.2015. The provisional marksheet was also shown in the official website of the UPPSC. As per the result, the petitioner secured 79 marks out of 150 and could not succeed in the preliminary examination. Learned counsel for petitioner submits that as per the preliminary examination the petitioner had scored 79 marks, which is more than cut off marks of general handicapped quota i.e. 69 and as such the respondents have erred and acted contrary to the advertisement. Therefore, this Court must come for rescue and reprieve of the petitioner.

Learned counsel for the petitioner, in support of his submissions, has placed reliance in the judgment dated 07.12.2015 passed by the Division Bench of this Court in Writ-A No.60634 of 2015 (Suryamani v. State of U.P. & Ors.), whereby the writ petition was allowed with observations as under:-

"The issue, in the facts of the case, is as to whether petitioner's candidature can be accepted under physically handicapped category or not on account of the fact that he has impairment of one leg (O.L.) and one hand (O.A.).

We have the occasion to peruse the Government Order dated 13th January, 2011 issued by State Government in consonance with the provisions of U.P. Public Services (Reservation for Physically Handicapped, Dependant of Freedom Fighter and Ex-Servicemen) Act, 1993, as amended upto date, wherein the State Government has proceeded to identify various posts of various departments and has also proceeded to mention the respective disabilities qua the aforementioned posts vis-a-vis the respective departments. As far as post of Agricultural Department is concerned, it finds place at item no.84 and the disability that has been mentioned there in Column 3 are O.L. O.A. P.D. and P.B. Most surprising feature of the said provision is that against various posts of each category, 'comma' has been mentioned, however in reference of item no.84, in particular at no point of time, 'comma' has been put so that categories can be read and described separately and independently.

Issue that has been raised is that, in the present case, certificate that has been so appended by petitioner and produced by him shows that his one leg and one arm (O.L & O.A.) was not functioning. However in the declaration form that has been given by him, one leg was mentioned as physically affected. Petitioner during the course of hearing, in the prescribed format, Performa V has produced certificate dated 26.11.2015 issued by Medical Board, Basti wherein certificate has been issued, certifying that only one leg effected.

Once the post of Agriculture Assistant is to be offered to candidates to be identified under physically handicapped category and in the instructions that have been so received, disability against the said post at item no.84 has been identified as O.L. O.A. P.D. and P.B. and comma has not been put between the disabilities that have been so mentioned and in the instructions received, in reference of impairment of O.L alongwith O.A., nothing has been explained and it has been mentioned that the same can be clarified by the Administrative Department and by the Handicapped Welfare Department. The said instructions in question has been sent by the Principal Secretary of U.P.

Once such is the factual situation that petitioner was having impairment of one leg and he had proceeded to apply for consideration of his candidature under the said category and nothing has been brought on record to show that if in addition to the same there was impairment of one arm, same would be treated as disqualification/ineligibility. Moreover, even in the format of disability certificate, while dealing with Locomotor or cerebral palsy following description is made:-

A. Locomotor or cerebral palsy:

(i) BL-Both legs affected but not arms.

(ii) BA-Both arms affected

(a) Impaired reach

(b) Weakness of grip

(iii) BLA-Both legs and both arms affected

(iv) OL- One leg affected (right or left)

(a) Impaired reach

(b) Weakness of grip

(v) OA- One arm affected

(a) Impaired reach

(b) Weakness of grip

(vi) BH-Stiff back and hips (Cannot sit or stoop)

(vii) MW-Muscular weakness and limited physical endurance.

Perusal of the disabilities noted above would go to show that one leg effected and one arm effected has been separately dealt with as disability and at no place the contingency of one leg effected alongwith one arm has been dealt with and in such a situation, the certificate issued by Medical Board becomes relevant wherein certification is done that candidate fulfills the physical requirement for discharge of his duties. Here on record, Medical Board, in Performa V dated 30.04.2015, has mentioned that petitioner fulfils physical requirements for discharge of duties. Not only this, the new certificate dated 26.11.2015 issued by Medical Board, in Performa V, declares that only one leg of petitioner is effected and he meets the physical requirements for discharge of duties. Said certificate has also been taken on record and forms part of record. Once such is the background of case, then benefit of the same eventually has to be extended to the petitioner, in view of this, once petitioner is physically handicapped by one leg and one arm and he has succeeded to make place for himself under P.H. category based on the marks obtained in written examination as well as in interview, then he cannot be denied appointment, as it has been sought to be done in the present case.

Consequently, in the facts of the case, we proceed to allow the writ petition and as it has been submitted that total 27 unfilled vacancies have been forwarded to the State Government, we ask the State Government to return one post to the U.P. Public Service Commission and thereafter exercise should be carried out to offer appointment to petitioner, preferably within next four months from the date of production of certified copy of this order, subject to fulfilment of other terms and conditions.

With these directions, writ petition is allowed.

No order as to cost."

Learned counsel for the petitioner submits that on the same terms and conditions as has been provided in the aforesaid judgment, the present writ petition is also liable to be allowed.

On the other hand, Shri Nisheeth Yadav, learned counsel for UPPSC has vehemently opposed the writ petition on the ground that the advertisement in question dated 29.4.2015 was unambiguous. Clause-7 of the advertisement provides for total number of vacancies and the reservation for each category. It further provides for reservation under physically handicapped quota. Clause-7 for ready reference is quoted as below:-

Total Vacancies

Unreserved

S.C. of U.P.

S.T. Of U.P.

O.B.C. Of U.P.

D.F.F.

P.H. Of U.P.

Female of U.P.

(03 O.A.

04 P.B.

04 P.D.)

It is submitted that as the categorical averment was mentioned regarding the reservation for OA, PB and PD, therefore, the petitioner falling under the category BL (both legs affected) is not entitled for such reservation.

Shri Nisheeth Yadav has further placed reliance on the provisions of Sections 32, 33 and 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the Act No.1 of 1996) (in short "the Act of 1995"), which for ready reference are reproduced hereunder:-

"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.

36. Vacancies not filled up to be carried forward - Where in any recruitment year any vacancy under section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no parson with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:

Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government."

Shri Nisheeth Yadav, learned counsel for UPPSC has also placed reliance on the Government Order dated 13th January, 2011, whereby the State Government had proceeded for reservation of jobs for physically handicapped persons in Group-A, B, C and D posts and for every post the disability is clearly mentioned. He submits that for the post of APO only OA, PB and PD category of persons are liable to get reservation and no other disability can be entertained for the said job. He has further placed reliance on Rule 13 of Uttar Pradesh Prosecuting Officers Services Rules, 1991, which for ready reference is reproduced as under:-

"13. Physical fitness- No candidate shall be appointed to a post in the service unless he be in good mental and bodily health and from free from any physical defect likely to interfere with the efficient performance of his duties. Before a candidate is finally approved for Direct Appointment he shall be required to pass an examination by a Medical Board:

Provided that a medical certificate of fitness shall not be required from a candidate recruited by promotion."

Heard rival submissions and perused the record.

In the advertisement, the UPSC had categorically mentioned that out of total 372 vacancies, 11 vacancies were reserved under the physically handicapped quota out of which 3 are reserved for OA, 4 for PB and 4 for PD. Therefore, apparently as per the advertisement the petitioner being handicapped with both leg does not fall in the said category and as such is not entitled for reservation under the said category, which has been earmarked for the posts of APO.

Just to appreciate the present controversy it would be relevant to mention that there was no comprehensive legislation with regard to rights of physically disabled persons enacted either by the Parliament or by the State Legislature of Uttar Pradesh. The U.P. Act No. 4 of 1993 provided for reservation for physically handicapped person in public service and post in the affairs of the States, the respective quota of which was to be determined by the State Government from time to time by notified order. The Act did not define 'Public Service'. The word physically handicapped was defined in Section 2(e) of the Act to mean a person (i) who suffers from total absence of eye sight or for limitation of the field of vision subtending an angle of 20 degree or worse or whose visual acuity does not exceed 6/60 or 20/20 (snellen) in the better eye with correcting lenses; or (ii) whose sense of hearing is non-functional for ordinary purposes of life or who suffers from hearing loss of more than 90 decibels in the better ear (profound impairment) or total loss of hearing in both ears or (iii) who has a physical defect or deformity which causes an interference with the normal functioning of the bones, muscles and joints.

Thereafter, the U.P. Act No.1 of 1996 known as "The Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995" was enacted. Section 32 and 33 of this Act in Chapter-VI provide for employment, which have been referred above. It is apparent that the reservation under Section 33 depends upon the identification of posts under Section 32 and as such the identification of post under Section 32 is for the purpose of making appointments and not for the purposes of reservation. No reservation can be provided unless the posts are identified under Section 32. In the present matter the State Government had proceeded through the Government Order dated 13th January, 2011 by which reservation had been provided for the jobs for physically handicapped persons in Group-A, B, C and D and for the post of APO the same has been mentioned at Sl.No. 42 as OA, PB and PD.

As referred above, the State Government had also framed the Rules known as "Uttar Pradesh Prosecuting Officers Service Rules, 1991, wherein Section 13 talks about the 'physical fitness'.

The issue, in the facts of the case, is as to whether the petitioner's candidature can be accepted under 'physically handicapped category' or not on account of the fact that he has impairment of both leg.

In the present case, the disability has been mentioned at Sl.No. 42 in Column-3 as OA, PB and PD. As per the record, it is apparent that once the post of APO is to be offerred to the candidates belonging to the Category mentioned at Sl.No. 42 as OA, PB and PD and as per the medical report, which has been appended along with the present writ petition, which clearly provides that the petitioner does not belong to the categories mentioned in the advertisement, the Court in these circumstances cannot come for rescue and reprieve of the petitioner. This is the domain of the State Government to identify the disabilities qua the posts vis-a-vis the respective department.

Learned counsel for the petitioner has placed reliance on Suryamani v. State of U.P. & Ors. (Supra) and submits that on the same terms and conditions the present writ petition may also be allowed. After careful examination of the order passed by this Court in Surya Mani v. State of U.P. & Ors. (Supra), we find that Surya Mani had applied for appointment on the post of Subordinate Agriculture Service, Grade-III (Technical Assistant Group-C, 2013) and pursuant to the advertisement he claimed benefit of being physically handicapped candidate along with Other Backward Category candidate. He was having the disability of one leg (OL) and one arm (OA). For the posts of Agriculture Department, the said post finds place at Sl.No. 84 in Column-III of the Government Order dated 13th January, 2011 in which the categories were provided as OL, OA, PD and PB. Admittedly, the OL and OA category was provided for said post and in this background the Court had proceeded to allow the writ petition.

The case in hand is entirely different from the case of Suryamani (Supra). In the case of Suryamani (Supra), the disability was categorically mentioned in the Column but in case of the petitioner for APO, his disability is absolutely missing as per the Government Order dated 13th January, 2011.

The petitioner has proceeded only on the basis that at the initial stage, when he was filling the application form, his category was mentioned and on account of such he proceeded to claim that once the UPPSC has provided the application form, which contains the disability, which the petitioner possesses, therefore, he has right to get such benefit of reservation.

We have already observed that the advertisement was unambiguous and the petitioner's disability does not find place in it and therefore he cannot claim the same only on the basis of printing it in the application form.

Hon'ble the Apex Court has considered Section 32 and 33 of the Act of 1995 in detail in Government of India through Secretary & Anr. v. Ravi Prakash Gupta & Anr., (2010) 7 SCC 626, the relevant paragraph of which is reproduced as under:-

"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."

Admittedly, the provisions as enumerated in detail is a social legislation enacted for the benefit of persons with disabilities and its provisions must be interpreted in order to fulfil its objective. Besides it is also settled rule of interpretation that if the language of statutory provision is unambiguous, it is to be interpreted according to the plain meaning of the said statutory provision. In the present case, there is no ambiguity as per the advertisement and the Government has also proceeded to appoint a minimum of 3% vacancies in an establishment out of which 3 posts were specified for OA, 4 posts of PB and 4 posts of PD.

The Constitution Bench of Hon'ble Apex Court in R.K Sabharwal and others vs. State of Punjab and others (1995) 2 SCC 745 has held as under:-

"6. The expressions "posts" and "vacancies", often used in the executive instructions providing for reservations, are rather problematical. The word "post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts, which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation."

Hon'ble the Apex Court while considering the reservation for disabled persons in Union of India and another v. National Federation of the Blind and others, (2013) 10 SCC 772 had issued directions with following effect:-

"In our opinion, in order to ensure proper implementation of the reservation policy for the disabled and to protect their rights, it is necessary to issue the following directions:

(i) We hereby direct the appellant herein to issue an appropriate order modifying the OM dated 29.12.2005 and the subsequent OMs consistent with this Court's Order within three months from the date of passing of this judgment.

(ii) We hereby direct the "appropriate Government" to compute the number of vacancies available in all the "establishments" and further identify the posts for disabled persons within a period of three months from today and implement the same without default.

(iii) The appellant herein shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the non observance of the scheme of reservation for persons with disabilities should be considered as an act of non-obedience and Nodal Officer in department/public sector undertakings/Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default."

In view of above, we do not find any good ground to interfere in the matter. The writ petition is dismissed.

Order Date :- 21.12.2015

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