Sumit Kaur vs Uoi And Ors.
2014 Latest Caselaw 4918 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Decided on: 29.09.2014

+      W.P.(C) 13086/2005, C.M. NOS.10714/2005 & 7673/2014

       SUMIT KAUR                           .....Petitioner
               Through: Sh. Ashok Agarwal, Ms. Aarushi
               Agarwal and Ms. Nisha Tomar, Advocates.

                                Versus
       UOI AND ORS.                           ..... Respondents

Through: Sh. Arun Bhardwaj, Advocate, for UOI. Sh. Naresh Kaushik, Advocate, for UPSC.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

1. The petitioner is aggrieved by the non-selection and appointment to any Central Service pursuant to the Central Civil Services Examinations held in 2003. She is a polio-afflicted candidate and, consequently, suffers from locomotor disability. In terms of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereafter referred to as "the Act"), complaining of arbitrariness in the method of selection, and non-adherence to the provisions of the Act, she approached the CAT by filing O.A. No.2559/2004. That application was dismissed by the impugned order of 20.04.2005. It is contended by the petitioner that the respondents were obliged to earmark at least 14 clear vacancies in the Civil Services Examination held in 2003. In support of this, it is urged that the total vacancies notified at the relevant time, inviting applications from eligible candidates, were 414.

W.P.(C) 13086/2005 Page 1 If one applies the 3% mandatory reservation required of by Section 33 of the Act, 14 of those ought to have been set apart for persons with disabilities. However, the respondents notified and set apart only 4. It is contended that in these circumstances, the petitioner was treated as a general merit candidate and the choice of service offered to her was not acceptable, she being a Physically Handicapped (General) category candidate, and could not obtain the service of her choice in her category of Locomotor Disability. The CAT, in its impugned order, after noticing the circumstances of the case, held as follows:

"11. In the present case before us, as we have referred to above, there were 4 Physically Handicapped candidates. One Physically Handicapped candidate Shri Bheda Priyesh Kishore (Rank 273) was allocated the service against the Un-Reserved quota. The next candidate was Shri Saravana Moorthy C (Rank-383) and he was a OBC candidate and was allocated a service.

12. It has to be seen that out of 3% reservation, there is a further deviation effected and 1% reservation is made available to Visually Handicapped, one to those who suffer from hearing impairment and one to those who are Orthopedically Handicapped. The other reservation for General Category was for hearing impaired persons while the applicant was suffering from Locomotor Disability. It is in this backdrop that she could not be given the post reserved for Physically Handicapped. We find that this is in accordance with the principles that have been so drawn and there is nothing arbitrary about it.

13. Our attention was drawn towards the Department of Personnel & Training's OM No.36035/4/2000-Estt.(Res.), dated 13.6.2001. It provides that reservation can be exchanged with other category but the total reservation for the handicapped should not exceed 3% of vacancies. In the facts of the present case, when reservation was to be given as per the vacancy position and the nature of the

W.P.(C) 13086/2005 Page 2 handicapped, the applicant cannot insist to exchange to other category to the detriment of another person. It has to be remembered that the other person who has been offered the post even has not been made party before this Tribunal."

2. The petitioner's counsel urged that the impugned order is in error as it ignores the total number of posts which had to be earmarked for reservation under 3% quota. Learned counsel submitted that the appointment given to one Sh. Arvind Kumar Guptarya in the circumstances, was contrary to the Scheme of the Act since he was lower in merit than the petitioner, the petitioner ought to have been offered that post. The petitioner had obtained 384th rank, whereas the said candidate had obtained 413th rank in the merit list. The respondents' submission in this regard is that the number of vacancies for physically handicapped persons notified, i.e. 4, in the Civil Services Examination of 2003 was based upon the existing circular of 2001 which required determination/identification of vacancies having regard to the functional abilities of persons with disabilities. In these circumstances, the final figure of 4 posts earmarked under the Act could not be characterized as arbitrary. So far as the submission with regard to preference of selection and appointment of less merited candidate aforesaid was concerned, it was pointed out that Sh. Arvind Kumar Guptarya was accommodated not only as a person with disability, but also on account of his being an OBC candidate, and entitled to reservation on that score. Besides being hearing impaired, one of the posts earmarked in the AFHQ service was available for persons with his disability, but not for a candidate with locomotor disability. It was lastly urged that the petitioner has now been

W.P.(C) 13086/2005 Page 3 appointed to the Indian Revenue Service (IRS) as a result of her being successful in the Civil Services Examination, 2006.

3. It is evident from the above discussion, as indeed the CAT's impugned order, that the respondents had applied the 3% reservation as against the posts identified. This was based upon the then existing circulars which - as later judgments of the Supreme Court have shown

- was not correct. While working out 3% quota under the Act, all establishments and administrative agencies have to take into consideration the total number of vacancies, and not merely those which are identified, and not only amongst those from identifiable cadre. To that extent, the circular is contrary to law, as held in Union of India and Ors. v. National Federation of the Blind and Anr 2013 (10) SCC 772. At the same time, the Court notes, however, that that alone would not be determinative of the merits of the case. In the present instance, the petitioner, no doubt, obtained 384th rank but at the same time, she is a general merit candidate suffering from locomotor disability. The candidature of Arvind Kumar Guptarya was accepted, on the other hand, because he was a hearing impaired candidate belonging to the OBC category for whom clear vacancies existed in the identified cadre. The vacancy in the AFHQ was not identified for locomotor disability. Furthermore, that candidate was not impleaded in the present proceeding, either here or in the CAT.

4. Having regard to these special circumstances, the Court cannot grant any relief, especially in view of the passage of time. Another reason why this Court should not grant any relief is the fact that the petitioner was successful in subsequent examination and, apparently,

W.P.(C) 13086/2005 Page 4 was appointed to a service of her choice - IRS. For the above reasons, this Court is of the opinion that no relief can be granted. The writ petition is, consequently, dismissed along with the pending applications.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) SEPTEMBER 29, 2014 ajk

W.P.(C) 13086/2005 Page 5