Delhi High Court
Union Of India vs Sh. Ravindra U Garkal on 8 February, 2019
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 08.02.2019
+ W.P.(C) 1308/2019
UNION OF INDIA ..... Petitioner
Through: Mr. Thakur Prasad Singh, Sr. Central
Govt. Counsel for UOI.
versus
SH. RAVINDRA U GARKAL ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE A.K.CHAWLA
JUDGMENT
VIPIN SANGHI, J. (ORAL)
CM APPL. 5914-5915/2019
Exemptions allowed, subject to all just exceptions.
W.P.(C) 1308/2019 & CM APPL. 5913/2019 (for stay)
1. The petitioner-UOI assails the order dated 25.07.2017 passed by the
Central Administrative Tribunal, Principal Bench, New Delhi ('Tribunal') in
OA No.4124/2013. It also assails the order passed in Review Application
No.8/2018 on 16.01.2018. The Tribunal has allowed the Original
Application preferred by the respondent, and dismissed the Review
Application preferred by the petitioner.
2. The respondent participated in the Civil Services Examination (CSE)
2007. He came out meritorious and was allocated IRS (C&CE) vide letter
dated 18.12.2008. The respondent belongs to the physically handicapped
category-suffering from hearing impairment. The petitioner, admittedly,
was not implementing the provisions of "Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995"
('the Act'), which prescribes horizontal reservation to the extent of 3% of
the public posts in favour of persons suffering from disabilities. 1% posts
were required to be reserved for persons with 'hearing impairment'.
Admittedly, the respondent was allocated to IRS (C&CE) on the basis of his
rank in CSE 2007. That allocation was not made on the basis of grant of 1%
reservation for the hearing impairment category candidates. Consequently,
he preferred the above mentioned Original Application. We may take note
of some of the relevant decisions which have also been noticed by the
Tribunal.
3. In the case of Ravi Prakash Gupta, the Applicant assailed the
inaction on the part of the Government in implementing the provisions of
the Act. The Tribunal dismissed his OA No. 1397/2007 on 07.04.2008. He
carried the same to this Court in W.P.(C) 5429/2008 titled Ravi Prakash
Gupta vs. UPSC & Ors., decided on 25.02.2009. The Court allowed the writ
petition and enforced the provisions of the Act which grants reservation to
persons with disabilities. The Court, inter alia, observed:
"Insofar as IAS is concerned, 785 vacancies were filled from
1996 to 2006. Thus during this period eight number of vacancies
were to be reserved for visually handicapped persons. As against
eight, only one person belonging to this category was given
appointment in the year 2005, leaving seven posts which could be
filled in the year 2006. However, in that year only one post from
this category has been filled.
The applicant was at serial number five and was a successful
candidate. Thus when sufficient numbers of successful candidates
were available against the said reserved posts, we fail to
understand as to why the requisition for filling up only one post
was sent by the DOP&T to the UPSC."
The Court took note of DoP&T's O.M. No. 36035/3/2004-Estt. (Res)
dated 29.12.2005, as per which the identification of posts was done. This
O.M., the Court observed stated in no uncertain terms that such reservation
would start from the year 1996. The Division Bench observed in respect of
the said O.M. :
"Following position follows from the reading of this OM :
(a) Reservation for persons with disabilities were to be earmarked
from the year 1996;
(b) If the vacancies so earmarked had not been filled up by
reservation in this previous year, they had to be treated as
having been carried forward to the first recruitment year
occurring after the issue of the said OM and were to be filled
as such;
(c) Only if it was not possible to fill up such reserved vacancies
during the following recruitment years and within a further
period of two years thereafter, they were to be treated as
lapsed.
(d)The mandate of even this OM was to calculate the backlog
from the year 1996 and fill up the same in the following year.
The OM is dated 26.04.2006 and therefore, the vacancies
which were to be filled up in the year 2007 were to be done in
the aforesaid manner."
(emphasis supplied)
The relief granted by the Division Bench was the following :
"In view of the aforesaid, this writ petition is allowed. The order
dated 07.04.2008 passed by the Central Administrative Tribunal
is hereby set aside. Consequently, OA 1397/2007 preferred by
the petitioner before the Tribunal stands allowed. Since clear
vacancy is available to which the petitioner can be
accommodated on the basis of his position in the merit list,
Mandamus is issued to the respondent to offer him appointment
to the said post by issuing appropriate appointment letter within
six weeks from today.
In case the vacancies are filled up by diverting the same to the
other categories, It will be for the respondents to carry out
necessary exercise for restoring these vacancies in the category
of visually handicapped persons and offer the petitioner
appointment as such. The petitioner shall also be given his
seniority along with his batch mates who took the examinations
in the year 2006 and his pay shall be fixed notionally on that
basis. However, the actual pay shall be given to him from the
date he joins. The petitioner shall be entitled to costs of
Rs.25000/- and respondent No.1 shall pay the costs to the
petitioner."
4. The matter was carried further to the Supreme Court vide SLP (C)
No.14889 of 2009, which was dismissed on 07.07.2010. The Supreme
Court, inter alia, observed as follows :
"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."
(emphasis supplied)
5. Original Application No.1893/2009 alongwith several others,
preferred before the Tribunal in the case of N. Sharavan Kumar & others.
vs. Union Public Service Commission & others to seek the benefit of
reservation for persons with disabilities under Section 33 of the Act were
disposed off by the Tribunal on 08.10.2010. All, but one, were allowed.
Only OA No. 1545/2009 was dismissed on the ground of limitation. The
Tribunal summed up its conclusions as follows :
"10. To sum up on the basis of above discussion:
(a) the Disabilities Act provides for reservation for physically
handicapped to the extent of three per cent, one per cent each
for visually handicapped, hearing impaired and persons with
loco motor disability and cerebral palsy;
(b) the reservation would be applicable from the year 1996,
regardless of identification under Section 32 of the Disabilities
Act;
(c) the candidates selected on their own merit would not count
among the reserved category and would be counted as
unreserved category as per the DOP&T's OM of 29.12.2005;
(d) vacancies not filled in a particular year would be carried
forward and would lapse if not filled up for the next two years;
(e) reservation was not made under Section 33 of the
Disabilities Act and, therefore, the question of carry forward
and lapsing of posts does not arise;
(f) those selected on their own merit would not be counted
among the reserved category candidates;
(g) the persons belonging to the non-disabled category who
have secured lesser marks than the persons belonging to the
disabled category cannot be recommended for appointment
disregarding the claim of the candidates of disabled category
on the basis of the posts available for them; and
(h) advantage of reservation has to be given to the physically
handicapped candidates after working out the number of
vacancies available on the basis of total number of posts
recommended and the backlog vacancies.
11. The OAs numbers (mentioned in paragraph 3(i) and 3(ii) )
are allowed. The First Respondent is directed to carry out an
exercise to work out the backlog vacancies in different
services and the vacancies of the year 2008 to consider
allocation of the Applicants to suitable services as per their
choices. Since this would entail consultation with cadre
controlling authorities, we are giving six months time to
complete this exercise. The allocation of services to the
Applicants would be from the date of allocation of services to
the candidates of CSE 2008. The allocation would be on
notional basis and the Applicants would not be entitled to
back wages, but it would count towards seniority and
calculation of increments. If no service is decided to be
allocated to any one of the Applicants, detailed, cogent and
logical reasons would be recorded in a speaking order, which
the Applicants would be at liberty to challenge in a fresh
proceeding before the appropriate forum. The Applicants in
OAs numbers 2717 and 2369 of 2009 would be considered for
allocation to IAS within eight weeks from the receipt of this
order.
12. We cannot give any relief to the candidate in OA number
1545 of 2009, who appeared in the CSE 2005. The reasons for
condoning delay that the Applicant came to know about the
judgement of the High Court in Ravi Prakash Gupta (supra)
only in April 2009, cannot be accepted. The limitation before
the Tribunal is counted as per the provision of Section 21 of the
Administrative Tribunals Act, 2005, which reads
thus:.........................."
(emphasis supplied)
6. On account of the non-compliance of aforesaid order dated
08.10.2010, CP No.74/2013 was preferred. The respondent filed its reply
stating that the persons suffering from blindness had been adjusted against
vacancies reserved for them, even though they were successful on the basis
of general merit. It was also disclosed that consequent upon the directions
issued by the Tribunal in various OAs, the UPSC had carried out the
exercise for working out the backlog vide letter dated 30.08.2011.
7. Yet another Original Application was preferred before the Tribunal by
Pankaj Kumar Srivastava vide O.A. No. 3493/2011. The said Original
Application, along with three others was disposed of on 30.05.2012. The
Tribunal directed the UPSC to undertake the exercise-in order to determine
as to how many candidates, on the basis of their ranking, deserve to be
selected on their own merits in CSE 2008 and other examinations. The
Tribunal further directed that they should be adjusted against unreserved
vacancies on their own merit on the basis of Office Memorandum dated
29.12.2005 and, thereafter, the rest of the candidates belonging to the
visually impaired category must be adjusted against the reserved category
vacancy. The said decision was assailed before this Court vide W.P.(C)
4902/2013, Union of India v. Pankaj Kumar Srivastava & Anr. The said
writ petition was dismissed by the Division Bench on 11.10.2013. The issue
raised by the Union of India in the said writ petition was that the principle of
general merit evolved by judicial pronouncements and incorporated in the
OM dated 29.12.2005, was incapable of application in respect of candidates
belonging to the physically handicapped category, as candidates belonging
to the physically handicapped category are not subjected to the same
medical standards as are made applicable to candidates belonging to the
General Category. It was the case of the Union of India that candidates with
physical handicap are granted relaxation of time in the examination process
and, thus, they could not be adjusted against the General Category vacancies
on the basis of their merit. While dismissing the writ petition, this Court
observed as follows:
"15. The short point for consideration which therefore
arises in the present writ petition pertains to the entitlement
of the applicants before the Tribunal, for being considered
against the vacancies, which become available on
application of the principle of general merit. There cannot
be two opinions about the applicability of the said principle
in the light of the Office Memorandum dated December 29,
2005 and April 26, 2006 issued by the petitioner itself. The
same is the situation reflected in the mandate under Rule 17
of the CSE Rules 2008 noted above. Thus it is not possible
for the petitioner to contend before us that there is an error
in the order of the Tribunal in issuing directions to
consider the entitlement of the applicants on the basis of
said principle. We affirm the view taken by the Tribunal
with regard to its observation that grant of the facility of
scribe and extra time of 30 minutes in the examination to
the visually impaired candidates does not amount to
relaxation of standards in their favour.
16. The non-fulfilment of the medical standard prescribed
for the general candidates by the physically handicapped
candidates as per the CSE Rules has not been debated
before the Tribunal and there is no finding in respect
thereof. However, as pointed out by Sh.Naresh Kaushik,
learned counsel for the UPSC, the petitioner i.e. the Union
of India has not issued the consequential amendments
contemplated by Rule 17 for reasons best known. (Shear
lethargy of the executive). The omission on the part of the
executive i.e. DOPT which is the Nodal Department to issue
Office Memorandum/Executive Instructions on matters
pertaining to the Central Service has created a situation
wherein the benefit is sought to be given on the one hand
through the issuance of Office Memorandum(s) dated
December 29, 2005 and April 26, 2006, and stands taken
away by the other hand as a result of the inaction to issue
the consequential amendment contemplated by Rule 17 of
the CSE Rules, 2008.
17. We are constrained to observe that the petitioner has
been remiss in this regard and has itself caused a situation,
whereby the entitlements which ought to have been available
to the differently abled persons as early as on February 07,
1996 (the date of the commencement of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995) are being denied to them till
today. The situation points out to a grim scenario which is
the creation of the petitioner itself. It is pointed out at the
cost of repetition that the realization of the rights in favour
of the differently abled persons has to pass through similar
obstacles which had to be removed by the Courts of law
through the judgment in Ravi Prakash Gupta's case (supra).
Be that as it may, the benefit of omission on the part of the
petitioner cannot be allowed to go in the favour of the
petitioner for the purpose of assailing the impugned order of
the Tribunal. Instead, the petitioner ought to have taken
necessary steps to issue consequential amendments to fully
operationalise the Rules by incorporating the principle of
general merit for the purpose of making available the
advantage to the differently abled persons resulting from
their success in the exam on the basis of general merit. In the
absence of an operational provision as contemplated by Rule
17, it is not feasible for the UPSC to make recommendations
on the basis of the said principle, since the UPSC has to
conduct the examination and make its recommendations on
the basis of rules notified by the petitioner itself. However,
the petitioner would be obliged to devise a mechanism to
give effect to the law. We reiterate. The petitioner cannot
raise any grievance which emanates as a result of inaction
by the petitioner itself.
18. Under the circumstances, we do not find any error in the
impugned order passed by the Tribunal, and we affirm the
same. But, in the light of the fact that the consequential
amendment in Rule 17 has not been issued by the petitioner
we direct that the needful be done by the petitioner
expeditiously and in any event not later than within four
months from the date of this decision. We also direct the
petitioner to apply its mind with regard to the fulfilment of
the medical standards by the differently abled persons and
issue appropriate guidelines in this regard, since
Sh.S.K.Rungta, learned senior counsel appearing for the
party impleaded had pointed out that the physical standards
to be fulfilled by the differently abled persons have to be laid
down separately and the medical standard for the general
candidates cannot be made applicable to them.
19. Since the matter pertains to a very important issue
concerning differently abled persons who have struggled to
avail equal opportunities in the matter of employment, we
are constrained to direct the Secretary DOPT to personally
oversee the exercise with required seriousness and urgency
to ensure that the persons of the differently abled category
are not unduly deprived the benefits which have been made
available to them under the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation)
Act, 1995.
20. On the subject of whether the applicants before the
Tribunal who were allowed a scribe and were provided 30
minutes extra time to write the paper were granted the
benefit of a relaxed standard, we find that the CSE Rules
provide as to what would constitute the relaxed standards
and they are:- (i) Additional number of attempts allowed to
certain reserved categories including persons suffering
with disabilities in terms of Rule 4 of Civil Service
Examination Rules; (ii) Relaxation in upper age limit in
terms of Rule 6 of Civil Service Examination Rules; and
(iii) Relaxation of minimum qualifying marks for persons
with disabilities as prescribed in Rules 15 & 16 for persons
with disabilities. Thus, the Rule itself envisages that
allowing a scribe and providing extra time for writing the
answers would not be amounting to availing a relaxed
standard. This being so, the very foundation of the
challenge has no peg to anchor itself on to."
(emphasis supplied)
8. In the Original Application preferred by the respondent-to seek
implementation of the provisions of the aforesaid Act, and for re-allocation
of his service on the basis of 1% reservation in favour of the persons with
hearing impairment, the petitioner filed its reply, which is found at page 116
of the record. The Tribunal while allowing the Original Application has
taken note of the averments made in the said reply filed by the petitioner. In
para 3.7.1 of the said reply, the petitioner has, inter alia, stated that 12
backlog vacancies had been found to exist for the hearing impaired category
of candidates in IAS. The said paragraph reads as follows:
"3.7.1 It is submitted that as per roster, since in the series
of 100 vacancies, 1st vacancy is reserved for VI category, 34th
vacancy is reserved for HI category and 67th vacancy is
reserved for LDCP category. Accordingly, it was circulated that
if there had been 3% reservation to PH candidates further
divided as 1% reservation for the VI persons, 1% reservation for
the HI persons and 1% reservation for the LDCP persons, from
Civil services Examination 1996 to Civil services Examination
2009 (as in above para), the 12 candidates would have been
recommended in VI, 12 in HI and 11 in LDCP category."
9. The petitioner also relied upon the order of the UPSC dated
8.10.2010 by which it recommended to the DoP&T the names of the
candidates for being considered for service allocation against the backlog
of vacancies intimated to UPSC by different Cadre Controlling
Authorities [CCAs]. The details of the backlog vacancies in LDCP
category, as communicated by the UPSC to the DoP&T, inter alia,
included 8 vacancies for the hearing impaired category candidates in the
IAS.
10. The names of the candidates recommended by the UPSC against the
backlog vacancies were disclosed. Pertinently, the PH category candidates
from the CSE 2007-to which the respondent belonged, were not named in
the said recommendation because the dossiers of candidates of CSE-2007
have been destroyed as per Record Retention Scheme as there were no
pending Court case. It implies that records to CSE-2007 would not be
available, and no recommendation from UPSC would be available in this
regard. All the names recommended were from CSE 2008 and 2009.
The Petitioner stated in para 3.9 as follows:
"3.9 It is submitted that against the backlog of vacancy, the
service allocation was made in accordance with the civil services
examination Rules and principles mentioned in para 12.3 above.
The details of the allocation in case of VI candidates' (Table;-1),
HI Candidates (Table-2) and LDCP candidates (Table-3) are
under":-
Table-2 is relevant for our purpose, and the same reads as follows:
Table-2:HI category
S.NO. Rank Name Service Proposed Remark
allocated service
earlier
CSE-2006
1. 471 NIRANJAN IAS IAS No change is
KUMAR proposed as
the candidate
has been
allocated
service of 1st
preference
along with the
CSE
candidates
2. 472 POOJA IRS(IT) IAS If he get
SWAROOP IAS(01), he
would release
one vacancy in
IRS(IT)
3. 473 SURESH IRS(C&CE) IAS If he get
CHAND IAS(02), he
MUKERIA would release
one vacancy in
IRS(C&CE)
4. 474 ANUBHAV AFHQ IAS If he get
SINGH IAS(03), he
would release
one vacancy in
AFHQ
CSE-2007
1. 628 ANIL IAS IAS No change
DHINGRA is proposed
as the
candidate
had been
allocated
service of
1st
preference
along with
the other
CSE
candidates
2. 629 *ANUBHAV IRS(IT) ------ Already
SINGH proposed to
be
allocated
IAS on the
basis of
CSE-2006.
He would
release one
vacancy in
IRS(IT)
3. 630 K. ICAS IRS(IT) Since he is
MANORANJAN fully deaf
NAYAK
4. 631 BHOPAL IRS(IT) IAS If he get
SINGH IAS (04), he
would
release one
vacancy in
IRS(IT)
5. 632 RAHUL IPoS IRS(C&CE) Since he is
KAUSHIK fully deaf
6. 633 NS IRS(IT) IAS If he get
SHASHIDHARA IAS (05), he
would
release one
vacancy in
IRS(IT)
7. 634 *SURESH No No Already
CHAND allocation allocation proposed to
MUKERIA be
allocated
IAS on the
basis of
CSE-2006
8. 635 SUNDER LAL IRS(C&CE) IAS If he get
IAS (06), he
would
release one
vacancy in
IRS(IT)
9. 636 RAVINDRA U IRS(C&CE) IAS If he get
GARKAL IAS (07),
he would
release one
vacancy in
IRS(IT)
10. 637 SUBIR KUMAR IRAS IRS(IT) If he get
CHATTERJEE (4) (1) IRS (IT)
released by
rank-629 of
CSE-2007,
he would
release one
vacancy in
IRAS. He
preferred
IAS at 6th
Number
11. 638 ANAND IRPS IAS If he get
KUMAR ROY IAS (08), he
would
release one
vacancy in
IRS(IT).
(emphasis supplied)
11. Thus, the respondent's name figures at Sl. No. 9 of the HI category
candidate recommended by the UPSC and he was also shown to have been
allocated to the IAS - in respect whereof there were 12 backlog vacancies
identified. The Tribunal has allowed the Original Application on the basis
that the petitioner, in its reply, had not explained as to whether the backlog
vacancies worked out by the UPSC in its letter dated 30.08.2011, inter alia,
for the candidates with hearing impediment, had been utilized/ filled, or not.
12. The submission of learned counsel for the petitioner is that the
decision of this Court in Union of India vs. Pankaj Kumar Srivastava,
W.P.(C) 4902/2013 dated 11.10.2013 is pending consideration before the
Supreme Court. He submits that leave has been granted by the Supreme
Court and the appeal is registered as Civil Appeal No.3303/2015.
13. We have considered the submissions of learned counsel for the
petitioner and perused the impugned order, as well as several other orders
and decisions referred to in the impugned order and those relied upon by the
petitioner. We have also considered the stand taken by the petitioner before
the Tribunal in the present Original Application. Admittedly, there is no stay
granted by the Supreme Court in the said Civil Appeal arising out of the
decision in Pankaj Kumar Srivastav (supra). Thus, the judgment of this
Court is bound to be implemented, and pendency of the Civil Appeal cannot
be a ground not to implement the said decision.
14. Learned counsel for the petitioner is not able to dispute the fact that
the present case is squarely covered by the aforesaid decision. Moreover,
we find that the Tribunal has allowed the Original Application on the basis
of the affidavit filed by the petitioner through Sh. S.S. Shukla, Under
Secretary, Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel & Training, which itself demonstrates that the
backlog vacancies in the IAS, in respect of the candidates suffering from
hearing impairment, were worked out as 12, and the petitioner's name
figured at serial no.9 for the CSE-2007. Therefore, we find no justification
for the petitioner denying allocation of IAS to the respondent.
15. The submission of learned counsel for the petitioner is that the
respondent approached the Tribunal belatedly, inasmuch as, he approached
the Tribunal only in the year 2013. The allocation of service of the
respondent was made on 18.12.2008. Firstly, we may observe that the
vacancies for the physically handicapped category candidates were not
worked out and no reservation was granted till the judgment of this Court
was rendered in Ravi Prakash Gupta (Supra). Thus, there was no question
of delay or lapsing of the said vacancies. The petitioner has not claimed, and
has not demonstrated that the vacancies for the hearing impaired candidates
had been filled by the time the respondent approached the Tribunal. The
respondent would not have been aware whether the petitioner had
implemented the reservation granted to the physically handicapped category.
The earlier orders passed by this Court, as well as by the Supreme Court
clearly show that the rights of candidates were sought to be protected several
years after they had participated in the Civil Services Examination and had
come out successful, even though they had been denied allocation of the
service to which they were entitled, by grant of reservation. It is precisely
for this reason that backlog vacancies were directed to be worked out and
made available to the candidates in terms of the judgment in Ravi Prakash
Gupta (supra).
16. We therefore find no merit in the petition and the same is accordingly
dismissed along with the pending application.
VIPIN SANGHI, J.
A.K. CHAWLA, J.
FEBRUARY 08, 2019
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