Akshay Kumar Rai vs State Of U.P. And 2 Others
2019 Latest Caselaw 979 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											    AFR
 

 
Court No. - 40
 

 
Case :- WRIT - A No. - 41622 of 2014
 
Petitioner :- Akshay Kumar Rai
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Gopal Ji Rai,P.N. Saxsena
 
Counsel for Respondent :- C.S.C.,Ajay Kumar,Avneesh Tripathi
 

 
Hon'ble Ajay Bhanot,J.

1. Heard Sri P.N. Saxena, learned Senior Counsel assisted by Sri Gopal Ji Rai, learned counsel for the petitioner, Sri Avneesh Tripathi, learned counsel for the Uttar Pradesh Public Service Commission (hereinafter referred to as 'UPPSC') and learned Standing Counsel for the State respondents.

2. The petitioner seeks relief of grant of appointment, under the reservation made for persons with disabilities, on the post of Arth Evam Sankhya Nirikshak, pursuant to selections conducted by UPPSC.

3. The facts relevant to a judgment in the controversy are beyond the pale of dispute. These facts will now be summarized. An advertisement was run by Uttar Pradesh Subordinate Services Selection Commission in various newspapers on 24.11.2006, inviting applications for appointments to the advertised posts. The advertised posts included the post of Arth Evam Sankhya Nirikshak. The advertisement stated that reservation of posts as per law for the category of Physically Handicapped Persons would be applicable to the recruitment proceedings.

4. The educational qualification of the petitioner is M.A. (Economics). The petitioner is fully eligible to be appointed to the post of Arth Evam Sankhya Nirikshak. The petitioner applied in response to the advertisement for appointment as Arth Evam Sankhya Nirikshak against the quota of physically handicapped persons.

5. The petitioner suffers from a permanent orthopaedic handicap. The physical disability of the petitioner is described in the Disability Certificate under the head of Locomotor disability. The Disability Certificate records that the right forearm of the petitioner is affected and has an impaired reach. Physical disability of the petitioner is rated at 60% in the disability certificate.

6. The selection proceeding consisted of two parts, namely the objective test and the interview. The objective test was held on 09.03.2014. The petitioner qualified the objective test and was declared successful. The petitioner was called for interview by letter dated 13.06.2014. The interview was conducted on 26.06.2014.

7. In the course of the interview on 26.06.2014, the petitioner was asked to submit a fresh disability certificate consistent with the approved proforma for the recruitment proceedings within a period of 21 days. The petitioner submitted the required disability certificate in the prescribed proforma on 15.07.2014. It is undisputed that the disability of the petitioner falls in the ambit of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act, 1995 (hereinafter referred to as "Act of 1995').

8. The results of the selection proceedings were declared on 04.07.2014. The name of the petitioner was not in the list of selected candidates. Subsequent enquiries revealed that reservation for physically handicapped persons was not made by the respondents on the post of Arth Evam Sankhya Nirikshak.

9. The rationale for denying the benefit of reservation in the Physically Handicapped Persons category to the petitioner has been stated in the counter affidavits filed by the UPPSC and the State respondents.

10. The counter affidavit filed on behalf of the State respondents asserts that the post in question is not earmarked for reservation. It is further averred that Arth Evam Sankhya Nirikshak is also posted as Assistant Development Officer (Statistics).

11. The counter affidavit filed on behalf of the UPPSC supplements the reasoning of the State Government by relying on certain clarificatory correspondence from the Special Secretary, Government of U.P. dated 04.02.2002. The said communication dated 04.02.2002 discloses that the State Government grants the benefit of reservation to physically handicapped persons only on posts identified by the Government of India for such appointments.

12. As per the communication dated 04.02.2002 the post of Arth Evam Sankhya Nirikshak/Sahayak Vikas Adhikari is not included in the posts identified by the Government of India for appointment of physically handicapped persons

13. On this foot the respondents claim that the said post is not reserved for physically handicapped persons. The petitioner was accordingly denied appointment.

14. The plight of physically handicapped persons across the world engaged the attention of the global country with the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and the Pacific Region, 1992. India was a signatory to the aforesaid Proclamation.

15. The concern of the global community was brought on the conscience of the nation by the Parliament, with the promulgation of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "Act of 1995").

16. The aims and objects of the Act depict legislative intent and merit reference.

"Statement of Objects and Reasons The meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India is a signatory to the said proclamation and it is necessary to enact a suitable legislation to provide for the following:-

(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;

(ii) to create barrier free environment for persons with disabilities;

(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons;

(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;

(v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and

(vi) to make special provision of the integration of persons with disabilities into the social mainstream.

2. Accordingly, it is proposed to provide inter alia for the constitution of Co-ordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate Governments and the local authorities will have to undertake various measures for the prevention and early detection of disabilities, creation of barrier-free environment, provision for rehabilitation services, etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provision of the Bill, appointment of the Chief Commissioner for persons with disabilities at the Central level and Commissioners for persons with disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged.

3. The Bill seeks to achieve the above objects."

17. Helen Keller lost her sight but not her vision. Douglas Bader lost use of his limbs but the disability could not prevent him to "Reach for the Sky". Stephen Hawkings suffered from a wasting motor neuron disease. The physical disability did not curb his quest to speak to the stars and he pushed human knowledge to its very frontiers. A battle injury paralysed Major HPS Ahulwalia below the waist. The disability broke his stride but not his spirit. The injuries immobilized his limbs but could not restrain his will. The war hero always set his sights "Higher than Everest". Human spirit has always triumphed over physical disabilities but has seldom prevailed against social prejudice.

18. Persons with physical disabilities face discrimination and suffer exclusion. A social stigma is often attached to their disabilities. The legislative purpose is to purge the stigma attached to disability and to empower and mainstream persons with disabilities. The Act of 1995 deals with the disability in a comprehensive manner and seeks to ameliorate the condition of persons with disabilities at various levels.

19. The statutory scheme of the Act of 1995, which vests rights in handicapped persons & creates obligations for government departments, needs consideration.

20. The jurisprudential underpinning of the Act of 1995 was laid down by the Hon'ble Supreme Court in Jeeja Ghosh and Another Vs Union of India and others reported at (2016) 7 SCC 761. The Hon'ble Supreme Court in Jeeja Ghosh (supra) prised out the jurisprudential setting in which the enactment has to be interpreted:

"37. The rights that are guaranteed to differently abled persons under the Act, 1995 are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right, now treated as human right of the persons who are disabled, has it roots in Article 21 of the Constitution. Jurisprudentially, three types of models for determining the content of the constitutional value of human dignity are recognised. These are: (i) Theological Models, (ii) Philosophical Models, and (iii) Constitutional Models. Legal scholars were called upon to determine the theological basis of human dignity as a constitutional value and as a constitutional right. Philosophers also came out with their views justifying human dignity as core human value. Legal understanding is influenced by theological and philosophical views, though these two are not identical. Aquinas and Kant discussed the jurisprudential aspects of human dignity based on the aforesaid philosophies. Over a period of time, human dignity has found its way through constitutionalism, whether written or unwritten. Even right to equality is interpreted based on the value of human dignity. Insofar as India is concerned, we are not even required to take shelter under theological or philosophical theories. We have a written Constitution which guarantees human rights that are contained in Part III with the caption "Fundamental Rights". One such right enshrined in Article 21 is right to life and liberty. Right to life is given a purposeful meaning by this Court to include right to live with dignity. It is the purposive interpretation which has been adopted by this Court to give a content of the right to human dignity as the fulfillment of the constitutional value enshrined in Article 21. Thus, human dignity is a constitutional value and a constitutional goal. What are the dimensions of constitutional value of human dignity? It is beautifully illustrated by Aharon Barak2 (former Chief Justice of the Supreme Court of Israel) in the following manner:

"The constitutional value of human dignity has a central normative role. Human dignity as a constitutional value is the factor that unites the human rights into one whole. It ensures the normative unity of human rights. This normative unity is expressed in the three ways: first, the value of human dignity serves as a normative basis for constitutional rights set out in the constitution; second, it serves as an interpretative principle for determining the scope of constitutional rights, including the right to human dignity; third, the value of human dignity has an important role in determining the proportionality of a statute limiting a constitutional right."

38. All the three goals of human dignity as a constitutional value are expanded by the author in a scholarly manner. Some of the excerpts thereof, are reproduced below which give a glimpse of these goals:

"The first role of human dignity as a constitutional value is expressed in the approach that it comprises the foundation for all of the constitutional rights. Human dignity is the central argument for the existence of human rights. It is the rationale for them all. It is the justification for the existence of rights. According to Christoph Enders, it is the constitutional value that determines that every person has the right to have rights...

The second role of human dignity as a constitutional value is to provide meaning to the norms of the legal system. According to purposive interpretation, all of the provisions of the constitution, and particularly all of the rights in the constitutional bill of rights, are interpreted in light of human dignity...

Lastly, human dignity as a constitutional value influences the development of the common law. Indeed, where common law is recognized, judges have the duty to develop it, and if necessary modify it, so that it expresses constitutional values, including the constitutional value of human dignity. To the extent that common law determines rights and duties between individuals, it might limit the human dignity of one individual and protect the human dignity of the other.

40. In international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation. The move from the patronising and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in moves to place the rights of persons with disabilities within the category of universal human rights. {See - Report of United Nations Consultative Expert Group Meeting on International Norms and Standards Relating to Disability 10-2-2001}.

41. Earlier the traditional approaches to disability have depicted it as health and welfare issue, to be addressed through care provided to persons with disabilities, from a charitable point of view. The disabled persons are viewed as abnormal, deserving of pity and are, and not as individuals who are entitled to enjoy the same opportunities to live a full and satisfying life as other members of society. This resulted in marginalising the disabled persons and their exclusion both from the mainstream of the society and enjoyment of their fundamental rights and freedoms. Disability tends to be couched within a medical and welfare framework, identifying people with disabilities as ill, different from their non-disabled peers, and in need of care. Because the emphasis is on the medical needs of people with disabilities, there is a corresponding neglect of their wider social needs, which has resulted in severe isolation for people with disabilities and their families.

43. All these rights conferred upon such persons send an eloquent message that there is no question of sympathising with such persons and extending them medical or other help. What is to be borne in mind is that they are also human beings and they have to grow as normal persons and are to be extended all facilities in this behalf. The subject of the rights of persons with disabilities should be approached from human rights perspective, which recognised that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights. There should be insistence on the full measure of general human rights guarantees in the case of persons with disabilities, as well as developing specific instruments that refine and given detailed contextual content of those general guarantees. There should be a full recognition of the fact that persons with disability were integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others. It is a sad commentary that this perceptions has not sunk in the mind and souls of those who are not concerned with the enforcement of these rights. The persons suffering from mental or physical disability experience and encounter nonpareil form of discrimination. They are not looked down by people. However, they are not accepted in the main stream either even when people sympathies with them. Most common, their lives are handicapped by social, cultural and attitudinal barriers which hamper their full participation and enjoyment of equal rights and opportunities. This is the worst form of discrimination which disabled feel as their grievance is that others do not understand them.

44. As pointed out in the beginning, the very first sentence of the book "NO PITY" authored by Joseph P. Shapiro reads:

"Non disabled Americans do not understand disabled ones".

The only error in the aforesaid sentence is that it is attributed to Americans only whereas the harsh reality is that this statement has universal application. The sentence should have read:

"Non disabled people do not understand disabled ones".

For, non-disabled people generally look upon disabled ones with pity. The general feeling is that these 'invalid people' are incapable of doing anything in life. They are burden on the society which the society bear. Of course, they sympathize with disabled persons. They may even want to willingly bear the burden. They may help them financially or otherwise. However, what they do not understand is the feeling of the people with disabilities. Disabled people no longer see their physical or mental limitations as a source of shame or as something to overcome in order to inspire others. What non-disabled people do not understand is that people with disabilities also have some rights, hopes and aspirations as everyone else. They do not want to depend on others. They want to brave their disabilities. They want to prove to the world at large that notwithstanding their disabilities they can be the master of their own lives. They can be independent. They can be self-reliant. They do not want sympathies of non-disabled. They want to be trusted. They want to be treated as valued member of the society who can contribute to the development and progress of the society. For this they want the proper environment to grow. Our society automatically under-estimates the capabilities of people with disabilities. People with disabilities want this change in the thinking of non-disabled. It is the thinking of Disability Rights Movement, USA that it is not so much the disabled individual who needs to change, but the society. Says disability rights activist Judy Heumann:

"Disability only becomes a tragedy for me when society fails to provide the things we need to lead our lives-job opportunities, or barrier-free buildings, for example. It is not a tragedy to me that I am living in a wheel chair."

46. It is the common experience of several persons with disabilities that they are unable to lead a full life due to societal barriers and discrimination faced by them in employment, access to public spaces, transportation etc. Persons with disability are most neglected lot not only in the society but also in the family. More often they are an object of pity. There are hardly any meaningful attempts to assimilate them in the mainstream of the nation's life. The apathy towards their problems is so pervasive that even the number of disabled persons existing in the country is not well documented. "

21. Coming to the provisions of the Act of 1995, Section 2 contains the definitions. The relevant definitions for the purpose of controversy are stated in Section 2 (i) (j) (k) (o)

(i) "Disability" means-

(i) blindness;

(ii) Low vision;

(iii) Leprosy-cured;

(iv) Hearing impairment;

(v) Loco motor disability;

(vi) Mental retardation;

(vii) Mental illness;

(j) "Employer" means,-

(i) In relation to a Government, the authority notified by the Head of the Department in this behalf or where no such authority is notified, the Head of the Department; and

(ii) In relation to an establishment, the chief executive officer of that the establishment;

(k) "Establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of 'the Companies Act, 1956 and includes Departments of a Government;

(o) "Loco motor disability" means disability of the bones, joints muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy;

22. Chapter IV relates to prevention and early detection of disabilities. Chapter V contemplates providing children with disabilities, free education and to make schemes and programmes for non-formal education. The provisions of Chapter V also envisages research and assistance of science and technology in creating devices to overcome disabilities. Chapter VII visualizes affirmative action by providing aids and appliances to persons with disabilities. Schemes for preferential allotment of land for certain purposes are also provided in the provisions under Chapter VII.

23. Chapter VIII is of critical importance. The provisions of Chapter VIII come under the heading of "Non-discrimination" .

24. The legislature was alert to the mind set of discrimination that compounds the physical disability suffered by such persons. Various measures in the provisions are contemplated to remove the discrimination in different aspects of life, like built up environment, road, transport and also in government employment. Chapter X provides for Recognition of Institutions For Persons with Disabilities. Provisions are created for the appointment of Chief Commissioner for persons with disabilities under Chapter XII. A programme of social security for the disabled persons is contemplated in the provisions of Chapter XIII. The miscellaneous provisions contained in Section 72 of Chapter XIV of the Act provide that the provisions of the Act shall be in addition to, and not in derogation of any other law. Section 73 empowers an appropriate government to implement the provisions of the Act.

25. Chapter VI is directly in issue in the instant controversy. It commences under the heading ''Employment'. Section 32 of the Act provides for identification of posts which can be reserved for persons with disabilities. The provision is extracted here under:-

"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."

26. Section 33 of the Act creates the quantum of reservation of posts for persons with disabilities. The proviso contains an exemption clause. The provision is reproduced below for reference:

"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."

27. In the State of U.P. the process for identification of posts to be reserved for physically handicapped persons was initiated under Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1996 read with The Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) (Amendment) Act, 1997 (hereinafter referred to "Act of 1997"). The posts which were thus identified under the aforesaid provisions were notified by government order dated 07.05.1999. The entry of the aforesaid government order dated 07.05.1999 related to this controversy is extracted here under:-

"Inspector and Supervisor,		       S.W.H.S.E.			       OL.OA
 
other (Clerical)
 
निरीक्षक तथा पर्यवेक्षक व अन्य (लिपिकीय)       एस०डब्लू०एच०एस०इ           ओएल०ओए0 
 

28. Thereafter the process of identification of post was re-initiated. The list of identified posts was taken out on 13.01.2011 under Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1996 read with The Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) (Amendment) Act, 1997. The post so identified for reservation in favour of persons with disabilities which is relevant to the instant controversy is at serial no. 35 of the aforesaid government order. The same is extracted here under:-

"35. निरीक्षक तथा पर्यवेक्षक व अन्य (लिपिकीय) ओएल०ओए0

29. The identification of posts which can be reserved for persons with disability is an exercise of statutory power. The government order dated 07.05.1999 and 13.01.2011 have been passed in exercise of statutory powers under Section 32 of the Act of 1995 read with the Act of 1997.

30. The clarificatory communication issued by the Special Secretary Government of U.P. on 04.02.2002, clearly seeks to impose a limit on exercise of statutory power. Statutory power cannot be fettered nor can its exercise be curbed by clarificatory correspondence between government agencies which is not compatible with the Act of 1995. Such correspondence is only of an interactive nature and does not have any bearing on the rights vested in physically handicapped persons by the Act of 1995 read with the Act of 1997.

31. The scheme of the Act of 1995, mandates the State to appoint in the establishments persons with various disabilities to the posts identified for such disability. The statutory mandate issued by the legislature cannot be avoided by the Government by resort to ingenuous devices like a clarificatory correspondence.

32. Further the order dated 04.02.2002 insofar as it is employed to resist the appointment of the petitioner is clearly in the teeth of Section 33 of the Act of 1995. The Act of 1995 is applicable to every establishment of the government. Only those establishments which are exempted by a notification taken out for this purpose under proviso to Section 33 of the Act can deny reservations on posts within their purview.

33. In the instant case no such exemption has been brought in the record.

34. The Courts have repeatedly noticed the reluctance of various authorities to implement the Act of 1995 in letter and spirit.

35. The narrative will be reinforced with judicial authorities in point.

36. The Hon'ble Madhya Pradesh High Court in Nilesh Singhal Vs State of M.P. and others, reported at 2008 SCC Online MP 83 saw through the ingenuous devices adopted by the authorities to deny benefits of the Act of 1995 to eligible persons who suffer from physical disabilities. In Nilesh Singhal (supra) a meritorious blind candidate who had passed the preliminary and main examination of M.P. Public Service Commission was not permitted to participate in the oral interview because he was blind. The authorities denied the petitioner the opportunity to appear in the interview looking to the nature of the duties attached to the post and his handicap. The Hon'ble M.P. High Court construing the rights of the petitioner and the manner and scope of exemption from the Act of 1995 granted to any government department, held thus:

"10. The Government in their return is unable to deny or discard the protection of the said Act, on the contrary by filing various Circulars, it has conveyed to Court that the Government is vigilant enough to protect the right of such class of the persons and issued various Circulars in their favour. But surprisingly the ingenuity of the clutches of the executive fiat of the bureaucratics of the State Govt. has been brought on record by the return of the Public Service Commission, whereby the reservation to the persons with disability was made available only to orthopaedically handicapped. No solace was offered to blind, deaf and dumb because the State Govt. had made the requisition of posts to be reserved to other than blind or of low vision or deaf and dumb. Thus, the person, who is handicapped with locomotor disability, and popularly known a orthopaedically handicapped were only extended the benefit of reservation. Thus, the stand of the State Government and the policies, which showers protection of reservation to blind, deaf and dumb is available only on papers, as apparent from the return and documents produced by Public Service Commission. Therefore, it is to be held that by the ingenuity of the bureaucratic system has set at naught of implementation of best piece of intended legislation denying the benefit of reservation to the blinds, deaf and dumb and cerebral palsy.

15. The perusal of language of section 32 of the Act of 1995 makes it clear that the appropriate Government shall identify the posts in the establishment, which can be reserved for the person with disability. Section 33 specifies the reservation of the posts, by which the appropriate Government shall mandatorily appoint such percentage of disabled persons not less than 3% in every establishment from blinds or low vision, deaf and dumb, locomotor disability or cerebral palsy. The proviso of section 33 gives an exemption to the appropriate Government, for purposive interpretation, whereby having regard to the work carried out in the department or establishment of the said Government by way of Notification and subject to conditions, if any, may exempt any establishment from the implementation of the provisions of this section. However, the joint reading of section 32 and 33 makes it amply clear that the Government is duty bound to identify the posts in the establishment to which the reservation must be made to the blinds or of low vision, hearing impairment and physically handicapped persons. By issuing a Notification and subject to the conditions so mentioned any of the establishment may be exempted from the purview of reservation. Thus, it is clear that to exempt any establishment, from reservation of sections 32 and 33 of the Act, a Notification is required to be published in the Govt. Gazette, as defined under section 2(s). In the present case no such notification has been brought to my notice despite giving, an opportunity to the State Govt. to produce the same. In such circumstances, the only irresistible conclusion may arrive, that even after issuing various circulars by the State to uplift the mandate of the Act of 1995, its real benefit has not been extended to the petitioner as well as to the class of blind, low vision, deaf and dumb and cerebral palsy, it was made available only the orthopaedically handicapped persons.

16. In view of the foregoing discussion, I am of the considered view that the State Government has failed to discharge its obligation, commensurate to Article 21 and 38 of the Constitution of India, to secure social order and to protect the disabled persons signifying their participation in every walk of life. The Government has failed to equate the disabled persons with other citizens and denied their legal rights envisaged in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which is amounting to denial of social justice, though their rights are protected by rule of law. It is neither charity, bounty or largesse in the hands of Govt. but their rights are equal to other citizens of the country. Thus, in the facts, the stand taken by the State Government is attractive enough on the papers but not in reality, which reflects from the documents produced by Public Service Commission. Therefore, the action of the Government is unjust, unfair to the disabled persons and their families, and creates greater problem to them and to society at large.

17. Thus, in view of the foregoing discussion, the ingenuity of the bureaucrats in non-implementation of the mandate of the Act of 1995 and non-implementation of their circulars is a writ at large and compelled me to command them, directing, to recognise the beneficial piece of legislation and to implement it and establish the rule of law to secure social recognition to such class of persons. Accordingly I am constrained to issue following directions.--

i) The State Government is directed to implement the mandate of the Act, "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the provisions of the rules made thereunder, by issuing appropriate instructions in this regard to all the departments of the State Government.

ii) The State Government is further directed to identify the posts of the disabled including the posts of blind or low vision, hearing impairment or locomotor cerebral palsy and the benefit be made available to the candidates of such class in future employment as specified in sections 32 and 33 of the Act.

iii) It is further directed that until and unless any establishment is exempted by way of issuing a notification, the mandate of sections 32 and 33 of the Act of 1995 be not flouted with by the authorities/officials in any manner and on violation of the same, they must be dealt with in accordance with the provisions of law.

iv) The State Government is directed to strictly adhere to the reservation to all three categories with the ratio of 1:1 in minimum or as observed by them in their own circular dated 31-3-2005, 2:2 for each class.

v) A copy of this order be also parted with the Chief Secretary of Madhya Pradesh for its circulation to all the concerned departments of the State Government and local bodies, which fall within the purview of appropriate Government for its real implementation and to secure social justice in the State of Madhya Pradesh.

vi) The Government is also directed to give wider publicity by print and electronic media indicating the rights of reservation to the disabled persons and the notification of exemption, if any, be issued to them."

37. The background and the objective of the Act of 1995 was adverted to by the Hon'ble Supreme Court before crystallizing the question for determination in Union of India and another Vs National Federation of the Blind and others, reported at (2013) 10 SCC 772, as follows:

"23. India as a welfare State is committed to promote overall development of its citizens including those who are differently abled in order to enable them to lead a life of dignity, equality, freedom and justice as mandated by the Constitution of India. The roots of statutory provisions for ensuring equality and equalisation of opportunities to the differently abled citizens in our country could be traced in Part III and Part IV of the Constitution. For the persons with disabilities, the changing world offers more new opportunities owing to technological advancement, however, the actual limitation surfaces only when they are not provided with equal opportunities. Therefore, bringing them in the society based on their capabilities is the need of the hour.

24. Although, the Disability Rights Movement in India commenced way back in 1977, of which Respondent 1 herein was an active participant, it acquired the requisite sanction only at the launch of the Asian and Pacific Decade of Disabled Persons in 1993-2002, which gave a definite boost to the movement. The main need that emerged from the meet was for a comprehensive legislation to protect the rights of persons with disabilities. In this light, the crucial legislation was enacted in 1995 viz. the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which empowers persons with disabilities and ensures protection of their rights. The Act, in addition to its other prospects, also seeks for better employment opportunities to persons with disabilities by way of reservation of posts and establishment of a special employment exchange for them. For the same, Section 32 of the Act stipulates for identification of posts which can be reserved for persons with disabilities. Section 33 provides for reservation of posts and Section 36 thereof provides that in case a vacancy is not filled up due to non-availability of a suitable person with disability, in any recruitment year such vacancy is to be carried forward in the succeeding recruitment year. The difference of opinion between the appellants and the respondents arises on the point of interpretation of these sections."

38. The Hon'ble Supreme Court in Union of India and another Vs National Federation of the Blind and others (supra) framed the following question for determination:

"The question for determination raised in this case is whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32."

39. Thereafter the Hon'ble Supreme Court in Union of India and another Vs National Federation of the Blind and others (supra) embarked on the exercise of interpreting the scheme of the Act comprehensively in order to determine the rights of persons with disabilities and the manner of implementation and ruled thus:

"33. A perusal of Section 33 of the Act reveals that this section has been divided into three parts:

33.1. The first part is:

"33. Reservation of posts.--Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability...."

It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the section.

33.2. The second part of this section starts as follows:

"... of which one per cent each shall be reserved for persons suffering from--

(i) blindness or low vision;

(ii) hearing impairment; and

(iii) locomotor disability or cerebral palsy,

in the posts identified for each disability:"

From the above, it is clear that it deals with distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word "of which". The word "of which" has to relate to appointing not less than 3% vacancies in an establishment and, in any way, it does not refer to the identified posts. In fact, the contention of the Union of India is sought to be justified by bringing the last portion of the second part of the section viz. "... identified posts" in this very first part which deals with the statutory obligation imposed upon the appropriate Government to "appoint not less than 3% vacancies for the persons or class of persons with disabilities". In our considered view, it is not plausible in the light of established rules of interpretation. The minimum level of representation of persons with disabilities has been provided in this very first part and the second part deals with the distribution of this 3% among the three categories of disabilities. Further, in the last portion of the second part the words used are "in the identified posts for each disability" and not "of identified posts". This can only mean that out of minimum 3% of vacancies of posts in the establishments 1% each has to be given to each of the 3 categories of disability viz. blind and low vision, hearing impaired and locomotor disabled or cerebral palsy separately and the number of appointments equivalent to the 1% for each disability out of total 3% has to be made against the vacancies in the identified posts. The attempt to read identified posts in the first part itself and also to read the same to have any relation with the computation of reservation is completely misconceived.

33.3. The third part of the section is the proviso which reads thus:

"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."

The proviso also justifies the abovesaid interpretation that the computation of reservation has to be against the total number of vacancies in the cadre strength and not against the identified posts. Had the legislature intended to mandate for computation of reservation against the identified posts only, there was no need for inserting the proviso to section which empowers the appropriate Government to exempt any establishment either partly or fully from the purview of the section subject to such conditions contained in the notification to be issued in the Official Gazette in this behalf. Certainly, the legislature did not intend to give such arbitrary power for exemption from reservation for persons with disabilities to be exercised by the appropriate Government when the computation is intended to be made against the identified posts.

34. In this regard, another provision of the said Act also supports this interpretation. Section 41 of the said Act mandates the appropriate Government to frame incentive schemes for employers with a view to ensure that 5% of their workforce is composed of persons with disabilities. The said section is reproduced hereinbelow:

"41. Incentives to employers to ensure five per cent of the workforce is composed of persons with disabilities.--The appropriate Governments and the local authorities shall, within the limits of their economic capacity and development, provide incentives to employers both in public and private sectors to ensure that at least five per cent of their workforce is composed of persons with disabilities."

35. Thus, on a conjoint reading of Sections 33 and 41, it is clear that while Section 33 provides for a minimum level of representation of 3% in the establishments of appropriate Government, the legislature intended to ensure 5% of representation in the entire workforce both in public as well as private sector.

37. Admittedly, the Act is a social legislation enacted for the benefit of persons with disabilities and its provisions must be interpreted in order to fulfil its objective. Besides, it is a settled rule of interpretation that if the language of a statutory provision is unambiguous, it has to be interpreted according to the plain meaning of the said statutory provision. In the present case, the plain and unambiguous meaning of Section 33 is that every appropriate Government has to appoint a minimum of 3% vacancies in an establishment out of which 1% each shall be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor disability or cerebral palsy.

38. To illustrate, if there are 100 vacancies of 100 posts in an establishment, the establishment concerned will have to reserve a minimum of 3% for persons with disabilities out of which at least 1% has to be reserved separately for each of the following disabilities: persons suffering from blindness or low vision, persons suffering from hearing impairment and the persons suffering from locomotor disability or cerebral palsy. Appointment of 1 blind person against 1 vacancy reserved for him/her will be made against a vacancy in an identified post for instance, the post of peon, which is identified for him in Group D. Similarly, one hearing impaired will be appointed against one reserved vacancy for that category in the post of Store Attendant in Group D post. Likewise, one person suffering from locomotor disability or cerebral palsy will be appointed against the post of "Farash", Group D post identified for that category of disability. It was argued on behalf of the Union of India with reference to the post of driver that since the said post is not suitable to be manned by a person suffering from blindness, the above interpretation of the section would be against the administrative exigencies. Such an argument is wholly misconceived. A given post may not be identified as suitable for one category of disability, the same could be identified as suitable for another category or categories of disability entitled to the benefit of reservation. In fact, the second part of the section has clarified this situation by providing that the number of vacancies equivalent to 1% for each of the aforementioned three categories will be filled up by the respective category by using vacancies in identified posts for each of them for the purposes of appointment.

39. It has also been submitted on behalf of the appellants herein that since reservation of persons with disabilities in Group C and D has been in force prior to the enactment and is being made against the total number of vacancies in the cadre strength according to the OM dated 29-12-2005 but the actual import of Section 33 is that it has to be computed against identified posts only. This argument is also completely misconceived in view of the plain language of the said section, as deliberated above. Even for the sake of argument, if we accept that the computation of reservation in respect of Group C and D posts is against the total vacancies in the cadre strength because of the applicability of the scheme of reservation in Group C and D posts prior to enactment, Section 33 does not distinguish the manner of computation of reservation between Group A and B posts or Group C and D posts respectively. As such, one statutory provision cannot be interpreted and applied differently for the same subject-matter.

40. Further, if we accept the interpretation contended by the appellants that computation of reservation has to be against the identified posts only, it would result into uncertainty of the application of the scheme of reservation because experience has shown that identification has never been uniform between the Centre and the States and even between the departments of any Government. For example, while a post of middle school teacher has been notified as identified as suitable for the blind and low vision by the Central Government, it has not been identified as suitable for the blind and low vision in some States such as Gujarat and J&K, etc. This has led to a series of litigations which have been pending in various High Courts. In addition, Para 4 of the OM dated 29-12-2005 dealing with the issue of identification of jobs/posts in sub-clause (b) states that list of the jobs/posts notified by the Ministry of Social Justice and Empowerment is not exhaustive which further makes the computation of reservation uncertain and arbitrary in the event of acceptance of the contention raised by the appellants."

40. The government orders dated 07.05.1999 and 13.01.2011 passed in exercise of powers under Section 32 of the Act, identified a number of posts for reservation in favour of physically handicapped persons. One such post, as stated, earlier, is the post of Inspector and Supervisor, other (Clerical). The government orders show that identification of the posts is of a generic nature. The said identification of posts under Section 32 of the Act has not been made establishment wise nor is it department specific. At any rate the government orders dated 07.05.1999 and 13.01.2011 do not restrict the reservation to the identified post in issue to any specific department.

41. The Act of 1995, is applicable to all establishments and departments of the State of U.P.

Hence, once posts are identified under Section 32 of the Act of 1995 the reservation under the Act of 1995 will apply, irrespective of the department or establishment, unless the posts are identified on basis of departments or such department or establishment, is specifically exempted by a notification under Section 33 of the Act of 1995.

42. As stated earlier no notification under Section 33 of the Act of 1995 exempting the Department of Statistics of the Government of U.P. has been brought in the record. The Department of Statistics is not exempted from applying the reservation on the post in issue under the Act of 1995. The Act of 1995 is fully applicable to the Department of Statistics, Government of U.P. The department cannot escape its obligations under the Act of 1995 of implementing the reservation granted to physically handicapped persons on the post in issue.

43. The stand of the respondents that the post of Inspector has not been identified in the Department of Statistics, cannot be accepted. If this stand is accepted, it would completely disrupt the implementation of the Act of 1995 and would be contrary to the Act of 1995. It will enable every department to avoid implementing the Act of 1995 on the plea that the post has been identified but not the department in the government orders dated 07.05.1999 and 13.01.2011.

44. The established facts of the case and the settled position of law are stated in the preceding part of the judgment. In such light, the refusal of the respondents to apply reservation in favour of handicapped persons on the post in question and the consequent denial of consideration of the petitioner for appointment is arbitrary, illegal. The action of the respondents is violative of the rights of the petitioner under the Act of 1995 and his fundamental rights guaranteed under Article 14, 16 and 21 of the Constitution of India.

45. The petitioner is held entitled to be appointed under the physical handicapped quota on the post of Arth Evam Sankhya Nirikshak, if he satisfies all other requirements for appointment.

46. The matter is remitted to the UPPSC to process the appointment of the petitioner consistent with the observations made herein above. The exercise shall be completed within a period of two months from the date of receipt of a certified copy of this order.

47. The writ petition is allowed in above terms.

Order Date :- 12.03.2019

Pravin