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2010 (5) Supreme 729
SUPREME COURT OF INDIA
Altamas Kabir and Cyriac Joseph, JJ.
Govt. of India through Secretary & Anr. — Petitioners
versus
Ravi Prakash Gupta & Anr. — Respondents
Special Leave Petition (C) No.14889 of 2009
Decided on : 7-7-2010
Facts of the Case :
Respondent No.1 a visually handicapped person suffering from 100% blindness filed application under Section 19 of the Administrative Tribunals Act, 1985, staking his claim for appointment under the reservation of vacancies for disabled categories provided for under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection, Rights and Full Participation) Act, 1995, The basic contention of the Respondent No.1 was that since said Act came into force in 1996 providing a statutory mandate for reservation of 3% of posts available for persons suffering from different kinds of disabilities enumerated in Section 33 of the Disabilities Act, 1995, such reservation ought to have been in force with effect from the date on which the Act came into force.
2.The case of the Respondent No.1 having been negated by the Tribunal, the Respondent No.1, moved the High Court and the High Court, upon accepting the Respondent No.1’s case, set aside the order of the Central Administrative Tribunal, and allowed the Respondent No.1’s O.A. No.1397 of 2007 filed before the Tribunal. While allowing the said application, the High Court, upon observing that a clear vacancy was available to which the Respondent No.1 could be accommodated on the basis of his position in the merit list, issued a mandamus to the Respondent No.1 to offer him an appointment to one of the reserved posts by issuing an appropriate appointment letter.
3.Present Special Leave Petition has been filed by Government of India, through the Secretary,Ministry of Personnel & Public Grievances,Department of Personnel and Training against the judgment and order passed by High Court allowing Writ Petition and setting aside the order passed by Tribunal, in O.A. filed by the Respondent No.1.
Findings of the Court :
While it cannot be denied that unless posts are identified for the purposes of Section 33 of the said 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, 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, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for three categories mentioned in Section 33 of Act in respect of persons suffering from disabilities spelt out therein. In fact, a situation had 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, did not arise.No reason was found to interfere with judgment of High Court. Special Leave Petition was dismissed.
Result : Special Leave Petition dismissed.
JUDGMENT
Altamas Kabir, J. —
1.The Government of India, through the Secretary, Ministry of Personnel & Public Grievances, Department of Personnel and Training and through the Secretary, Ministry of Social Justice and Empowerment, has filed this Special Leave Petition against the judgment and order dated 25th February, 2009, passed by the Delhi High Court in Writ Petition (Civil) No.5429 of 2008, allowing the Writ Petition and setting aside the order dated 7th April, 2008, passed by the Central Administrative Tribunal, Principal Bench, New Delhi, in O.A. No.1397 of 2007, filed by the Respondent No.1 herein, and allowing the reliefs prayed for therein.
2.The Respondent No.1 is a visually handicapped person who suffers from 100% blindness. He appeared in the Civil Services Examination conducted by the Union Public Service Commission in the year 2006. After clearing the preliminary examination, the Respondent No.1 appeared for the main examination in October, 2006 and was declared successful and was, thereafter, called for a personality test scheduled for 1st May, 2007. Pursuant to such interview, the names of 474 candidates who were selected were released on 14th May, 2007. In the said list, the name of one other visually impaired candidate also figured. The Respondent No.1 was at serial no.5 of the merit list prepared for visually handicapped candidates, who had been declared successful in the examination. According to the Respondent No.1, although there were more than 5 vacancies available in the visually handicapped category, only one post was offered under the said category and he was, therefore, not given appointment despite the vacancies available.
3.Being aggrieved by the manner in which selections were made for appointment in the visually handicapped category, the Respondent No.1 filed a Writ Petition, being Writ Petition (Civil) No.5338 of 2007, before the Delhi High Court. The same was subsequently withdrawn since it was the Central Administrative Tribunal only which had jurisdiction to entertain such matters at the first instance. The Respondent No.1, accordingly, withdrew the Writ Petition, with liberty to approach the Central Administrative Tribunal. Thereafter, he filed an application under Section 19 of the Administrative Tribunals Act, 1985, which was registered as O.A. No.1397 of 2007, staking his claim for appointment under the reservation of vacancies for disabled categories provided for under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection, Rights and Full Participation) Act, 1995, hereinafter referred to as ‘the Disabilities Act, 1995’. The basic contention of the Respondent No.1 was that since the aforesaid Act came into force in 1996 providing a statutory mandate for reservation of 3% of the posts available for persons suffering from different kinds of disabilities enumerated in Section 33 of the Disabilities Act, 1995, such reservation ought to have been in force with effect from the date on which the Act came into force. According to the Respondent No.1, if the vacancies were to be considered from the year 1996, then instead of one vacancy being declared for the year in question, there should have been at least 7 vacancies from the reserved categories of disabilities which were interchangeable. It was, therefore, the case of the Respondent No.1 that having regard to the number of appointments made with regard to the disabled categories reserved under Section 33 of the Disabilities Act, 1995, since the Act came into force, there were at least 7 posts which could be filled up in the year 2006. However, in that year only one post from this category had been filled. It was, therefore, the case of the Respondent No.1 that being at serial no.5 of the list of successful candidates amongst the physically impaired candidates, there were sufficient number of vacancies in which he could have been appointed and that the authorities had acted contrary to the provisions of the above Act upon th
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