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High Court Of Delhi
RAVI KUMAR ARORA - Appellant
Versus
UNION OF INDIA - Respondent
First Appeal Order 8 of 1989
Decided On : 04/15/2004
Persons with Disabilities - Appointment to Civil Services Examination - The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Section 32, Section 33, Section 36 - The court directed the Government of India and the Union Public Service Commission to permit visually handicapped eligible candidates to compete and write the civil services examination. The court also highlighted the violation of the mandate under Section 33 of the said Act for making reservation and emphasized the entitlement of the petitioner to be appointed to a post in the category a Services as per his merit and seniority based on the rank obtained by the petitioner for the Examination of 2001.
Fact of the Case:
The petitioner, a visually impaired person, qualified in the Civil Services Examination of 2001 under the General category but was not appointed due to visual impairment. In 2002, the petitioner was unsuccessful due to the absence of any reserved post for visually impaired candidates. The petitioner sought appointment in the category of visually challenged persons and requested to be treated as a disabled person, but the requests were rejected.
Finding of the Court:
The court found that the petitioner was entitled to be appointed to a post in the category a Services as per his merit and seniority based on the rank obtained by the petitioner for the Examination of 2001. The court directed the Government to appoint the petitioner to the Indian Postal Services or an equivalent Service and to treat the petitioner as having joined in service along with his batch-mates for purposes of determination of seniority, monetary emoluments, and promotions. The court also ruled that the petitioner was entitled to all monetary benefits for the past and future, less the amount received by the petitioner in the course of his employment.
Issues: The issues included the denial of appointment to the petitioner due to visual impairment, the absence of reserved posts for visually impaired candidates, and the rejection of the petitioner's requests to be treated as a disabled person.
Ratio Decidendi: The court held that the petitioner was entitled to appointment in the category a Services based on merit and seniority, and directed the Government to appoint the petitioner to the Indian Postal Services or an equivalent Service. The court also ruled that the petitioner was entitled to all monetary benefits for the past and future, less the amount received by the petitioner in the course of his employment.
Final Decision: The court issued a writ of mandamus directing the Government to appoint the petitioner to the post in pursuance of the Examination of Civil Services, 2001, with all consequential benefits of merit, seniority, promotion, and monetary emoluments for the past and future. The Government was directed to take the necessary actions within a maximum period of one month from the date of the order. The petitioner was also awarded costs of the proceedings.
( 1 ) THE ingenuity of bureaucratic system can set at naught implementation of the best-intended legislations. Judicial proceedings, which resulted in the legislation of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ( hereinafter to be referred to as, the said Act ) are sought to be negated by the ingenuous method of forming one committee after another to identify the posts for the benefit of the persons with disability. The mandate of the Act, which came into force on 07. 02. 1996, is, thus, violated with impunity on the ground that such posts have not been identified for now almost eight years! Persons like the petitioner are, thus, told that they must wait till these committees identify the posts or till deluge, whichever may be later.
( 2 ) IT is no answer to the persons with disability to be told that the Government is still not equipped and ready with the identified posts. They have waited enough and as Gabrielle Mistral said,
" Right now is the time, his bones are being formed, his blood is being made and his senses are being developed. . . to him, we cannot answer tomorrow . His name is today . "
( 3 ) IN order to appreciate the contours of the disputes in the present case, it is necessary to go into the history of the legislation. An insight into this can be found even from the Statement of Objects and Reasons of the said Act. In December, 1992, a meeting to launch the Asian and Pacific Decade of Disabled Person 1993-2002 was convened by the Economic and Social Commission for Asian and Pacific Region in Beijing. This resulted in adoption of the Proclamation on the full participation and equality of people with disabilities in the Asia and Pacific Region. India was a signatory to the said Proclamation.
( 4 ) THE issue of providing friendly environment to persons with disability soon found part of the judicial pronouncements by the Hon ble Supreme Court in National Federation of Blind v. Union Public Service Commission and Ors. , (1993) 2 SCC 411. The judgment gave the right to visually handicapped persons to compete on equal footing for job opportunities and the Government of India and Union Public Service Commission ( in short, upsc ) were directed to permit blind and partially blind eligible candidates to compete and write the civil services examination in Braille-script or with the help of scribe. The matter did not rest at this since further directions were issued to the Government of India to decide the question of providing preference / reservation to the visually handicapped persons in Group a and b posts in the Government and public sector undertakings expeditiously. The Supreme Court noted that the visually handicapped constitute the significant section of our society and as such it is necessary to encourage their participation in every walk of life. Some reservation had been provided by the Central Government for vacancies in Group c and d posts, but in order to consider the growing demand from the visually handicapped persons, the Ministry of Welfare, Government of India had directed Standing Committee for identification of jobs in various Ministries / Departments for such persons by an order dated 30. 12. 1985. The report was submitted by the Committee on October 31, 1986. The Committee prepared a comprehensive list of 416 categories in Group a and b posts. An office memorandum was issued on 25. 11. 1986 by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training ( in short, dopt ) providing for preference to be given to the handicapped persons for these posts. This memorandum, however, remained on paper and even when the matter in National Federation of Blind s case (supra) was argued, it was pointed out that this office memorandum for 7 years had remained unimplemented. It is of importance to mention that the Committee had specified that the visually handicapped ( bl
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