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Allahabad High Court · body

2002 DIGILAW 1442 (ALL)

Anil Kumar Agarwal v. State of U. P.

2002-10-04

SUNIL AMBWANI

body2002
JUDGMENT : Sunil Ambwani, J. By this writ petition, a physically handicapped person with locomotor disability, has prayed for a direction to the respondents to give him appointment as Junior Engineer (Civil) on the basis of selection vide advertisement No. 3/98-99 issued by the U.P. Public Service Commission, Allahabad and to permit him to function as Junior Engineer (Civil) in Public Works Department of the State. 2. I have heard Sri Ashok Khare, senior advocate, assisted by Sri Ajai Kumar Srivastava, and Sri Ravi Ranjan, learned standing counsel for the respondents. Both the parties have agreed for final disposal of writ petition at this stage. 3. U.P. Public Service Commission issued an advertisement No. 3/98-99 inviting application to fill up vacancies in Irrigation, Minor Irrigation and Public Works Department. The advertisement specified 496 posts of Junior Engineer (Civil) as special recruitment for filling up back-log vacancies of Scheduled Caste and Scheduled Tribes, as also 436 posts of Junior Engineer (Civil) by way of direct recruitment. Petitioner, a physically handicapped person, belonging to General Category, applied for the post supported by a certificate issued by Chief Medical Officer. The advertisement provided that 91 vacancies of Junior Engineer (Civil) in Public Works Department are reserved for Scheduled Caste and Scheduled Tribes and 117 for Other Backward Classes. In advertisement, it did not specify reservation for physically handicapped persons. Petitioner qualified in preliminary examination held on 11.10.1998, and was called to appear in interview before the Commission on 12.7.1999. In the final result published in 1st week of January, 2000, petitioner was placed at serial No. 591, in the select list under the category of physically handicapped person (General). He was, however, not given appointment. 4. Before considering the Issues raised in this petition, it is necessary to give a brief history of legal proceeding relating to the selections. In Civil Misc. Writ Petition No. 32605 of 1998, Nandan Mishra v. State of U. P., Court issued an interim order on 12.10.1998 directing that until further orders, only 50% of the advertised posts in pursuance of the advertisement No. 3 of 1998-99 for the post of Junior Engineer (Civil) shall be filled - in by reserved quota. In Civil Misc. Writ Petition No. 32605 of 1998, Nandan Mishra v. State of U. P., Court issued an interim order on 12.10.1998 directing that until further orders, only 50% of the advertised posts in pursuance of the advertisement No. 3 of 1998-99 for the post of Junior Engineer (Civil) shall be filled - in by reserved quota. In another Writ Petition No. 1066 of 2000, Siya Ram v. State of U.P. and Ors., an interim order was passed on 1.3.2000 directing the State Government not to make any appointment against the posts reserved for Scheduled Castes/ Scheduled Tribes. The matter thereafter came up for orders in Writ Petition No. 748 (SS) of 2001, Ravi Kumar Verma v. State of U.P. and Ors., before the Lucknow Bench of this Court. The Court vide its order dated 23.5.2001 found that the controversy involved in the petition revolves around a question as to what is the meaning and import of special drive and whether special drive in the present case was really a special drive and could be undertaken in pursuance of Sub-sections (2) and (3) of Section 3 of U, P. Public Services (Reservation of Scheduled Caste, Scheduled Tribes and Others Backward Class) Act, 1994. It was found by the Court that no selection was ever held for filling up the vacancies for which the special drive was undertaken. These vacancies relate to the period prior to June, 1983 and thereafter upto the year 1993, and that the matter with regard to the special drive and decrease in number of vacancies on account of bifurcation of State and abolition of certain circles requires consideration at the time of final hearing. In the meantime it was proper, without recording any finding on the question as to whether the special drive could be held or not or the total number of vacancies which has been detailed, have to be filled by candidates of General Category or they have to be filled only upto the extent of 50% from amongst the reserved category candidates, the existing vacancies shall be filled from amongst the selected candidates in order of their merit against the vacancies advertised under general common category in which reservation shall be applied in accordance with rules. The State Government was directed to ensure that the maximum number of selected candidates are accommodated against the existing vacancies, which shall be subject to further orders of the Court. 5. Ordinarily, in the aforesaid background, the hearing of this writ petition should have been deferred, as the entire selection is subjudice in the aforesaid writ petitions. However, I find that the questions, raised in this writ petition, are entirely separate and shall not affect the selections either way, and that these issues can be decided without prejudice to any decision that may be taken in the aforesaid batch of writ petitions. The question of reservation to handicapped persons is not in issue in the aforesaid batch of writ petitions. 6. Petitioner has earlier filed Writ Petition No. 36960 of 1998, Anil Kwnar Agarwal v. State of U.P. and Anr. for a writ of mandamus commanding the respondents to disclose correct number of seats for physically handicapped persons and thereafter declare the final result of the examination held on 11.10.1998. On 7.12.1998, it was directed that regard being had to the decision of this Court in Krishna Mohan Tripathi u. U.P. Public Service Commission, Allahabad and another 1999 (1) AWC 243 it is provided that the appointment, if any, made pursuant to the Notification No. 3/98-99 issued by the Public Services Commission, U.P., shall be subject to the further orders of the Court. The final result was, however, declared- The name of petitioner was shown as having been selected under the category of physically handicapped candidate at serial No. 591, and thus petitioner filed an application in the said writ petition to withdraw the petition. By order dated 20.2.2001, the writ petition was dismissed as not pressed and interim order was discharged. However, since no appointment was offered to him. Petitioner filed the instant writ petition. 7. Sri Ashok Khare, senior advocate, states that in pursuance of the order dated 23.5.2001 passed in the aforesaid batch of writ petitions, 427 persons were given appointments by office order dated 10.8.2001. These appointments were not offered in accordance with serial numbers in which their names find place in the select list. Petitioner filed the instant writ petition. 7. Sri Ashok Khare, senior advocate, states that in pursuance of the order dated 23.5.2001 passed in the aforesaid batch of writ petitions, 427 persons were given appointments by office order dated 10.8.2001. These appointments were not offered in accordance with serial numbers in which their names find place in the select list. The candidates upto the serial No. 210 were given appointments in order of merit in which their names find place in list but thereafter the appointment to the remaining candidates have been offered after picking and choosing their names from select list. Only four persons under the group of handicapped persons, have been given appointments, whose serial numbers, names and category, are given as below : Sl. Nos. Names of candidates Category 439. Vijay Kumar Srivastava General (Physically handicapped) 410. Laxman Singh -Do- 441. Ravindra Kumar Singh -Do- 786. Dhani Ram Backward Class (Physically handicapped). He submits that taking into account three per cent reservation for physically handicapped persons, in issuing appointments to 427 candidates, 13 candidates should have been appointed under the category of physically handicapped. Petitioner, being 7th in the order of merit amongst physically handicapped persons, was entitled to be offered appointment. It is submitted that subsequently, 45 candidates were further offered appointments by office order dated 24.4.2002, from the same select list, as a consequence thereof a total of 427 appointments have been made on the select list in accordance with which 15 physically handicapped candidates should have been offered appointment, including petitioner. 8. In the counter-affidavit of Sri Tribhuban Ram, Engineer-in-Chief, Public Works Department, U. P., Lucknow, it is stated that by amendment of U.P. Act No. 6 of 1997, three per cent reservation has been provided for physically handicapped persons which comes to one per cent reservation for each of the physically handicapped categories, namely, (a) blindness or low vision, (b) hearing impairment and (c) locomotor disability or cerebral palsy. Petitioner applied as physically handicapped person in general category and his name stands at serial No. 591 of the list sent by the Public Service Commission. The appointment letters could not be issued to all the candidates, as by Government order dated 16.3.2000, three circles and 48 divisions (plains region) have been declared surplus, whereby posts of 737 Junior Engineers got reduced. The appointment letters could not be issued to all the candidates, as by Government order dated 16.3.2000, three circles and 48 divisions (plains region) have been declared surplus, whereby posts of 737 Junior Engineers got reduced. Further, district Haridwar has gone to newly created State of Uttaranchal and on account of this reason, 38 posts of Junior Engineers (Civil) were further reduced. However, in pursuance of the order passed on 23.5.2001 in Civil Misc. Writ Petition No. 748 (SS) of 2001, Ravi Kumar Verma and Ors. and State of U.P. and Ors., appointment letters were issued by the department to 431 persons, including 215 General Category ; 116 Other Backward Classes : 91 Scheduled Castes and 9 Scheduled Tribes. 215 persons have been appointed from the select list in General Category out of which four handicapped persons have been Issued appointment letters in general category which are mentioned as below : Sl. No. Loksewa Suchi-cum Sankhya (Public. Service index cum-No.) Name General Category (Handicapped) 1. 45 Sri Bhanu Pratap Singh (C) Locomotor disability or cerebral palsy. 2. 439 Sri Vimal Kumar Srivastava 3. 440 Sri Laxman Singh 4. 441 Sri Ravindra Kumar Singh Blindness or low vision. It is further stated in the same paragraph 12 of counter-affidavit that one per cent quota of handicapped category from general candidates out of 215 posts comes to two posts but in any view of the matter, it cannot go beyond 3. In general category the selected candidates u/s 3 (1) (ii) (c), i.e., locomotor disability or cerebral palsy above the petitioner at serial Nos. 439, 440 and 445 were offered appointments and, therefore, the petitioner is not entitled for appointment under this category. 9. It is distressing to note that inspite of clear provisions in the statutes providing reservation to physically handicapped persons and its interpretation by Supreme Court as well as by this Court, the State Government has not understood the plain and simple meaning and have deprived physically handicapped persons of their rightful claims repeatedly in the selections held for civil posts. The U.P. Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993, U.P. Act No. 4 of 1993) provides five per cent reservation of vacancies at the stage of direct recruitment in favour of physically handicapped ; dependents of freedom fighters, and ex-servicemen u/s 3 (1) of the Act. The U.P. Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993, U.P. Act No. 4 of 1993) provides five per cent reservation of vacancies at the stage of direct recruitment in favour of physically handicapped ; dependents of freedom fighters, and ex-servicemen u/s 3 (1) of the Act. Sub-section (2) provides for the respective quota of the categories specified in Sub-section (1), shall be such as the State Government may from time to time determine by a notified order. Subsection (3) clarifies that persons selected against the vacancies reserved under Sub-section (1) shall be placed in the appropriate categories to which they belong. Subsection (3) which is relevant for the purposes of this case, is quoted as below : "(3) The persons selected against the vacancies reserved under Sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category, he will be placed in that quota by making necessary adjustments ; if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments ; if he belongs to Backward Classes Category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments." 10. By a notification Issued by the State Government on May 4, 1995, the quota for such category, namely, for physically handicapped and for Dependents of Freedom Fighters, was provided to be two per cent each ; and for Ex-servicemen, one per cent. The Act was amended by the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) (Amendment) Act, 1997 (U.P. Act No. 6 of 1997). It defined 'blindness' ; 'cerebral palsy' ; 'hearing impairment'; 'locomotor disability' and 'low vision' by substituting clauses (a) ; (aa) ; (dd) ; (ddd) and (dddd) respectively. The physically handicapped person was defined to mean a person u/s 2 (c), (e) who suffers from : (i) blindness or low vision ; (ii) hearing impairment ; (iii) locomotor disability or cerebral palsy. Section 3 of the amending Act is quoted as below : "3. The physically handicapped person was defined to mean a person u/s 2 (c), (e) who suffers from : (i) blindness or low vision ; (ii) hearing impairment ; (iii) locomotor disability or cerebral palsy. Section 3 of the amending Act is quoted as below : "3. Amendment of Section 3.--In Section 3 of the principal Act : (a) for Sub-section (1) the following Sub-section shall be substituted, namely : (1) There shall be reserved at the stage of direct recruitment : (i) in public services and post, two per cent of vacancies for dependents of freedom fighters and one per cent of vacancies for ex-servicemen ; (ii) in such public services and posts as the State Government may, by notification, identify one per cent of vacancies each for the persons suffering from : (a) blindness or low vision ; (b) hearing impairment ; and (c) locomotor disability or cerebral palsy. (b) Sub-section (2) shall be omitted ; (c) in Sub-section (3) for the words "Backward Classes", the words "Other Backward Classes of citizens" shall be substituted ; (d) Sub-section (4) shall be omitted ; (e) for Sub-section (5), the following sub-section shall be substituted, namely : "(5) Where, due to non-availability of suitable candidates any of the vacancies reserved under Sub-section (1) remains unfilled, it shall be carried over to the next recruitment." 11. This amendment provides one per cent reservation for each category of handicapped person. Sub-section (3) was. however, amended to provide benefit to Other Backward Classes. It, thus, follows that whereas the three categories of physically handicapped persons are provided reservation one per cent for each category, i.e., 1 % each in all, the method of effecting the reservation is to prepare a list of persons selected against the vacancies reserved for them and thereafter to place them in appropriate categories to which they belong. This method of application has been explained in paragraph 95 of the landmark decision of Supreme Court in Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., (1992) 3 SCC 217 where it is clarified that the reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes under Article 16(4) may be called vertical reservation whereas reservations in favour of physically handicapped under Clause (1) of Article 16 can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations what is called interlocking reservations. Horizontal reservations cut across the vertical reservations what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons ; this would be a reservation relatable to Clause (1) of Article 16. The person selected against this quota will be placed in the appropriate category, i.e., if he belongs to Scheduled Castes category, he will be placed in that quota by making necessary adjustments ; similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of Backward class of citizen remains and should remain the same. 12. In Civil Misc. Writ Petition No. 12916 of 1996, Sheo Shankar Singh v. Public Service Commission and Ors., the Division Bench of this Court in its judgment dated 8.7.1996 clarified the same position as above. In another Division Bench Judgment in the case of Brijendra Deo Mishra v. Public Service Commission, U.P., Allahabad 1997 (1) AWC 84 for Combined State/Upper Subordinate Service (Preliminary) Examination, 1994, same view was reiterated. Paragraph 5 of this judgment is quoted as below : "5. The main question that falls for decision is whether quotas for D.F.F.. physically handicapped and ex-servicemen are to be calculated as a percentage of total vacancies in a particular service or as a percentage of the vacancies in the respective category, (i.e, Scheduled Castes, Scheduled Tribes and Other Backward Classes or General) to which the candidate belongs. Sub-section (1) of Section 3 of 1993 Act provides reservation for the physically handicapped, D.F.F, and ex-servicemen at 5% of the vacancies, in other words as a percentage of the total vacancies. After the persons are selected against the vacancies reserved under Sub-section (3) of Section 3 to be placed in appropriate category to which they belong. For example, if a selected person belongs to Scheduled Castes category, he is to be placed in that quota by making necessary adjustments. Similarly, if he belongs to open competition category, he is to be placed in that category by making necessary adjustments. For example, if a selected person belongs to Scheduled Castes category, he is to be placed in that quota by making necessary adjustments. Similarly, if he belongs to open competition category, he is to be placed in that category by making necessary adjustments. A combined reading of Sub-sections (1) and (3) makes it clear that the quota of the vacancies for physically handicapped, D.F.F. and ex-servicemen are to be calculated as a percentage of total number of vacancies and it is after the persons are selected against the vacancies reserved under Sub-section (1), they have to be placed in the respective caste category by making necessary adjustments." 13. What follows is that a separate list for physically handicapped candidates is to be drawn in accordance of their inter se merit, irrespective of categories, i.e., General, Other Backward Classes and Scheduled Castes/Scheduled Tribes to which they belong. Thereafter, the number of vacancies to be given to the physically handicapped persons is to be determined. This determination is to the total number of vacancies and not to the respective category to which physically handicapped belongs. Thereafter, the physically handicapped candidates have to be adjusted in accordance with their merit to the respective categories, i.e., General. Other Backward Classes and Scheduled Castes/Scheduled Tribes, to which they belong by making necessary adjustments. 14. Taking this method, provided by U.P. Act No. 4 of 1993, as amended by U.P. Act No. 6 of 1997 ; it is found that out of total number of 472 appointments offered from the select list, three per cent is to be made available to the physically handicapped persons, i.e., fourteen vacancies should have been provided for physically handicapped persons. These are to be further sub-divided by identifying one per cent of vacancies each for the persons suffering from (a) blindness or low vision ; (b) hearing impairment and (c) locomotor disability or cerebral palsy. From the list appended to the writ petition and the affidavit filed, the Court finds that whereas first three persons, namely, at Serial Nos. 45, 439 and 440 fall in category (c) locomotor disability or cerebral palsy, the candidate at serial No. 441 falls in category (a) blindness or low vision. Out of 14 vacancies, 3%, i.e., 4.66 or five, are to be given to physically handicapped persons falling in category (c) locomotor disability or cerebral palsy. Petitioner is at serial No. 7. 45, 439 and 440 fall in category (c) locomotor disability or cerebral palsy, the candidate at serial No. 441 falls in category (a) blindness or low vision. Out of 14 vacancies, 3%, i.e., 4.66 or five, are to be given to physically handicapped persons falling in category (c) locomotor disability or cerebral palsy. Petitioner is at serial No. 7. There is nothing on record to show as to which sub-category Devendra Kumar Sharma and Sanjai Kumar Gupta fall. In case they fall in category of locomotor disability or cerebral palsy, the remaining two vacancies are to be given to them. The petitioner at serial No. 591 in general (physical handicapped) category in locomotor disability will get a chance in case either Devendra Kumar Sharma (serial No. 442) or Sanjai Gupta (serial No. 443) fall in other sub-categories, namely blindness or low vision, or hearing impairment. 15. In the aforesaid facts and circumstances, the writ petition succeeds and is allowed. The respondents are directed to redetermine and readjust the quotas for physically handicapped candidates as provided in U.P. Act No. 4 of 1993, as amended by U.P. Act No. 6 of 1997 and interpreted by Supreme Court in Indra Sawhney v. Union of India (supra) and explained in this order. The cost is quantified to Rs. 5,000 to be paid by the respondents. The mandamus is directed to be carried out within one month from the date a certified copy of this order is served upon the respondents.