Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(SC) 535

SUPREME COURT OF INDIA
ABHAY S. OKA, PANKAJ MITHAL, JJ.
Union of India – Appellant
Versus
Pankaj Kumar Srivastava & Anr. – Respondents
Civil Appeal No. 3303 of 2015
Decided On : 08-07-2024

Advocates appeared:
For the Appellant(s) : Mr. Shreekant Neelappa Terdal, AOR Mr. Arvind Kumar Sharma, AOR
For the Respondent(s): Mr. Joby P. Varghese, AOR Mr. Rajnish Kumar Jha, Adv. Mr. Naresh Kaushik, Sr. Adv. Mr. Vardhman Kaushik, AOR Mr. Anand Singh, Adv. Mr. Pukhrambam Ramesh Kumar, AOR

The main legal point established in the judgment is the failure of the Union of India to implement the provisions of the PWD Act, 1995, and the court's invocation of Article 142 of the Constitution of India to issue directions for the appointment of visually impaired candidates against backlog vacancies as a one-time measure.

Headnote:
PWD Act, 1995 - Civil Services Examination - Section 33, Section 36 - The court directed the Union of India to calculate backlog vacancies for visually impaired candidates and consider allowing interchange as contemplated by Section 36 of the PWD Act, 1995. The court also emphasized that the reservation under Section 33 of the PWD Act, 1995 should be provided to visually impaired candidates in specific categories, and issued directions for the appointment of the respondent and other candidates in the visually impaired category against the backlog vacancies.
Fact of the Case:

The respondent, a visually impaired candidate, was denied appointment after appearing in the Civil Services Examination. The court found that the Union of India failed to implement the provisions of the PWD Act, 1995, leading to a large backlog of vacancies in various PWD categories. The respondent had been fighting for justice since 2009.
Finding of the Court:

The court found that the Union of India failed to implement the provisions of the PWD Act, 1995, and directed the Union of India to calculate backlog vacancies for visually impaired candidates and consider allowing interchange as contemplated by Section 36 of the PWD Act, 1995. The court also emphasized that the reservation under Section 33 of the PWD Act, 1995 should be provided to visually impaired candidates in specific categories, and issued directions for the appointment of the respondent and other candidates in the visually impaired category against the backlog vacancies.
Issues: The main issue was the failure of the Union of India to implement the provisions of the PWD Act, 1995, leading to the denial of appointment to visually impaired candidates and the existence of a large backlog of vacancies in various PWD categories.
Ratio Decidendi: The court's decision was based on the failure of the Union of India to implement the provisions of the PWD Act, 1995, and the specific provisions of Section 33 and Section 36 of the PWD Act, 1995, which required the calculation of backlog vacancies for visually impaired candidates and the provision of reservation in specific categories. The court also invoked Article 142 of the Constitution of India to issue directions for the appointment of the respondent and other candidates in the visually impaired category against the backlog vacancies as a one-time measure.
Final Decision: The court directed the Union of India to consider the cases of the respondent and other visually impaired candidates for appointment against the backlog vacancies of PWD candidates, issue necessary appointments within three months, and count their services from the date on which the last candidate of the visually impaired category in the Civil Services Examination was given an appointment. The court made it clear that these directions were issued as a one-time measure and should not be treated as a precedent.

JUDGMENT :

Abhay S. Oka, J.

FACTUAL ASPECTS

1. The respondent no.1 is 100 per cent visually impaired. He appeared in the Civil Services Examination, 2008 (CSE-2008). Respondent no.1 gave four preferences for services in the following order: Indian Administrative Services (IAS), Indian Revenue Services-Income Tax (IRS (IT)), Indian Railway Personnel Service (IRPS) and Indian Revenue Service (Customs and Excise) (IRS (C&E)). After having undergone the written test and interview, he was denied an appointment.

2. Therefore, the respondent no.1 filed the Original Application no.2402 of 2009 before the Central Administrative Tribunal, New Delhi (for short, ‘the CAT’). The argument before the CAT, inter alia, was that the backlog vacancies in accordance with the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, ‘the PWD Act, 1995’) were not filled in. By the judgment dated 8th October 2010 of the CAT, the Union Public Service Commission (UPSC) and the Department of Personnel and Training (DoPT) were directed to calculate the backlog vacancies following the mandate of the PWD Act, 1995. A time of six months was granted to do the exercise. A direction was issued to the appellant-Union of India, to inform respondent no.1, if service could be allocated to him. Pursuant to the said order, on 9th September 2011, the UPSC informed respondent no.1 that his name did not figure in the merit list of CSE-2008 within the number of available vacancies for the PH-2 (Visually Impaired-VI) category. That led to respondent no.1 filing another Original Application no.3493 of 2011 before the CAT. By the judgment dated 30th May 2012, the CAT issued a direction to the UPSC that the candidates selected on their own merits must be adjusted in the unreserved/general category in accordance with the Office Memorandum dated 29th December 2005. A direction was issued that the candidates belonging to the VI category must be selected against the reserved category and be given an appointment. Unfortunately, on 30th August 2012, the UPSC informed respondent no.1 that he was not qualified for appointment in the PH-2 (VI) quota. The appellant-Union of India, challenged the judgment dated 30th May 2012 by filing a writ petition before the Delhi High Court. By the impugned judgment dated 11th October 2013, the writ petition was dismissed, and that is how the appellant-Union of India is in appeal.

3. As noted earlier, the UPSC, by the communication dated 30th August 2012, informed respondent no.1 that he could not be selected against the PH-2 (VI) quota. He filed a review application before the CAT by pointing out that many vacancies available for VI category candidates remained unfilled, against which he was entitled to the appointment. As the review application was rejected, respondent no.1 has filed a writ petition, which is pending before the High Court of Delhi.

4. It must be noted that the connected appeals/petitions were filed along with this appeal, in which several orders were passed by this Court from time to time, from 1st February 2022. Based on the same principles adopted in the impugned judgment, some other candidates belonging to the PWD category were granted appointments, and therefore, companion appeals/petitions were disposed of.

5. Now, coming to the case of respondent no.1, a detailed order was passed by this Court on 31st August 2023, which reads thus:

This is a case where admittedly the Union of India did not give effect to the reservations under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participatio