D SUDHAKAR Vs. STATE OF A P AND ORS

Supreme Court of India

19898 of 2014, Judgment Date: Mar 28, 2016

                                                                  REPORTABLE
                         IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
Petition for Special Leave to Appeal (C) No. 19898 of 2014


D. Sudhakar                                                    ..…Petitioner

                                        versus

State of A.P. & Ors.                                            …Respondents



                               J U D G M E N T

Madan B. Lokur, J.
1.     The petitioner was directly recruited in the Group-I  services  as  a
Regional Transport Officer in 1990 and has been working as  Joint  Transport
Commissioner since 2008.  The petitioner  belongs  to  the  Scheduled  Caste
community and is physically handicapped (Ortho).
2.     The petitioner says that he has been unfairly treated  for  selection
to the Indian Administrative Service (for short ‘the IAS’) and  that  he  is
entitled to the benefit of the  quota  for  physically  handicapped  persons
under S.C. category for selection under the  Indian  Administrative  Service
(Appointment by Selection) Regulations,  1997.   For  this,  the  petitioner
places reliance on the decision of this Court in Union of India v.  National
Federation of the Blind[1] and Section 33 of the Persons  with  Disabilities
(Equal Opportunities, Protection of  Rights  and  Full  Participation)  Act,
1995.
3.     The background facts of the case indicate that the  State  of  Andhra
Pradesh had short listed  the  petitioner  in  2002  for  consideration  for
appointment to the IAS against Non  State  Civil  Services  Officers  quota.
The petitioner was interviewed  but  not  selected.   Even  thereafter,  the
petitioner was considered for  appointment  but  was  not  short  listed  or
selected.  The petitioner says that in spite of the reservation for  persons
with  disabilities  as  provided  under  Section  33  of  the  Persons  with
Disabilities  (Equal  Opportunities,   Protection   of   Rights   and   Full
Participation) Act, 1995 (for short ‘the PWD Act’)  which  provides  for  3%
reservation for persons with disabilities  in  every  establishment  of  the
appropriate Government, the petitioner was not selected in the IAS.
4.     At this stage, it may be mentioned that  there  are  three  modes  of
recruitment  to  the   IAS   under   the   Indian   Administrative   Service
(Recruitment) Rules, 1954.  These are (a)  by  direct  recruitment;  (b)  by
promotion of State Civil Services Officers; (c) by  selection  from  amongst
Non State Civil Service Officers.  The case of the petitioner falls  in  the
third category that is selection  from  amongst  Non  State  Civil  Services
Officers.
5.     When the petitioner was not short listed for selection  for  the  IAS
in 2010, he approached the Central Administrative Tribunal, Hyderabad  Bench
by filing O.A. No. 1297 of 2010 challenging the selection of  15  candidates
by  the  Selection  Committee  constituted  for  this   purpose   that   had
recommended the 15 candidates to the Union  Public  Service  Commission  for
consideration for appointment  in  the  IAS.   The  further  prayer  of  the
petitioner was for a direction to include his name in the  short  list  sent
by the State of Andhra Pradesh under the physically  handicapped  quota  and
under S.C. category.
6.     The State of Andhra Pradesh and the Union  of  India  both  contested
the claim of the petitioner on merits and at law.  It was submitted  by  the
State of Andhra Pradesh and the Union of India that the concerned  Selection
Committee had fully examined the records of the  candidates  and  thereafter
did not shortlist the  petitioner.   As  such  it  was  contended  that  the
decision taken by the Committee could not be faulted.  The State  of  Andhra
Pradesh  and  the  Union  of  India   also   contended   that   the   Indian
Administrative Service (Appointment by Selection) Regulations, 1997  do  not
provide for rules of reservation for including a candidate in  the  zone  of
consideration. Therefore, apart from the contention that the petitioner  was
not meritorious enough, the submission was that even at law  the  petitioner
had not made out any case for interference by the Tribunal.
7.     The Tribunal by its Order dated 28th February,  2011  partly  allowed
the original application filed by the petitioner.  The  Tribunal  held  that
the short listing  process  by  the  Selection  Committee  was  not  at  all
satisfactory and therefore the short listing of the 15  candidates  was  set
aside as the selection was not fair.
8.     With regard to the prayer of the petitioner that his name  should  be
included in the short list, the Tribunal held that on  an  earlier  occasion
it had dealt with a somewhat similar issue in O.A.  No.  998  of  2009.   In
that case the Tribunal had held that there was no provision for  reservation
in recruitment by promotion from the  State  Police  to  the  Indian  Police
Service.  It was held that the  rationale  for  coming  to  that  conclusion
holds good  for  recruitment  by  selection  of  Non  State  Civil  Services
Officers to the IAS.  Accordingly, it was held that the petitioner  had  not
made out any case for being short listed for selection.
9.     The Tribunal, in a somewhat oblique manner, upheld the contention  of
the State of Andhra Pradesh  and  the  Union  of  India  that  there  is  no
provision for reservation in the Indian Administrative Service  (Appointment
by  Selection)  Regulations,  1997  or  the  Indian  Administrative  Service
(Recruitment) Rules, 1954.
10.    Feeling aggrieved, the petitioner preferred Writ Petition  No.  18563
of 2011 in the High Court of Andhra Pradesh.   By  its  judgment  and  order
dated 20th February,  2014  the  High  Court  dismissed  the  writ  petition
(impugned).
11. The High Court did not even advert to the Indian Administrative  Service
(Recruitment) Rules, 1954 or the Indian Administrative Service  (Appointment
by Selection) Regulations, 1997 but in a rather cryptic manner rejected  the
case set up by the petitioner.  The High Court held as follows:-

“7. The facts are not in dispute.  As on the date of  committee  constituted
for  selecting  Non-Indian  Administrative  Service   Cadre   from   various
departments, the  petitioner  was  eligible  to  be  considered.   The  main
contention of the learned counsel for the petitioner is  that  the  case  of
the petitioner has to  be  considered  under  office  memo,  dated  3.12.13,
wherein the persons with disabilities have to  be  given  preference  in  3%
reservation on the total number of vacancies in the  cadre  strength.   But,
in view of the fact that the decision of the Hon’ble Supreme Court  and  the
amendment of Office Memo dated 29.12.2005, is  prospective,  that  amendment
cannot be retrospective to the petitioner to  consider  his  case  under  3%
reservation of persons with Disabilities Act.  Therefore,  we  do  not  find
any merit in this writ petition and it is liable to be dismissed.”

12.    The decision of this Court referred  to  above  is  in  the  case  of
National Federation of the Blind which  dealt  with  the  Office  Memorandum
dated 29th December, 2005 and struck down paragraph 12 thereof.
13.    Subsequent to the decision of this Court, the Union of  India  issued
another  Office  Memorandum  dated  3rd  December,  2013  and  inserted  the
following paragraph:-

“Reservation for persons with disabilities in Group A or Group B post  shall
be computed on the basis of total number of vacancies  occurring  in  direct
recruitment quota in all the Group A post and Group B post respectively,  in
the cadre.”

14.    A perusal of the impugned judgment and order indicates quite  clearly
that the decision of the  High  Court  was  based  on  completely  different
grounds than the decision of the Tribunal. In fact the reasons given by  the
Tribunal were not even remotely adverted to by the High Court.
15. Be that as it may, feeling aggrieved by the  decision  rendered  by  the
High Court the petitioner is now before us.  The  primary  contention  urged
before us is that in  view  of  the  decision  of  this  Court  in  National
Federation of the Blind read with Section 33 of the PWD Act, the  petitioner
is entitled to the benefit of reservation for persons with  disabilities  in
the matter of short listing for selection to the IAS.
16. We may  note  at  this  stage  that  the  Office  Memorandum  dated  3rd
December, 2013 and more particularly the inserted paragraph mentioned  above
came up for consideration before the Delhi High  Court  in  H.C.  Sharma  v.
N.D.M.C.[2]  The Delhi High Court took the view that the inserted  paragraph
was contrary to the conclusions and directions  in  National  Federation  of
the Blind.  Accordingly, the said paragraph was struck down.  In  coming  to
this conclusion, the High Court made a reference  to  Municipal  Corporation
of Delhi v. Manoj Gupta[3] and the dismissal on 10th December, 2013  of  the
petition for special leave to appeal against the decision of the High  Court
in Manoj Gupta.
17. Be that as it may, the decision of the High Court in  H.C.  Sharma  came
up for consideration before this Court and on 18th December, 2014 leave  was
granted to challenge the  decision.   The  Civil  Appeal  arising  therefrom
being C.A. No. 11895 of 2014 is pending and has been tagged  with  C.A.  No.
7295 of 2012 (State of Haryana v. Viklang Sangh).
18. Under these circumstances, we are of the opinion  that  apart  from  the
fact that this petition raises questions  regarding  the  interpretation  of
Section 33 of the PWD  Act  read  with  the  Indian  Administrative  Service
(Appointment by Selection) Regulations, 1997 and the  Indian  Administrative
Service  (Recruitment)  Rules,  1954  this  petition  also  relates  to  the
interpretation of the Office Memorandum dated 29th December,  2005  and  the
Office Memorandum dated 3rd December, 2013.   Since  all  these  issues  are
inter-linked with the pending Civil Appeals, we are of the view that  for  a
comprehensive decision in the matter and to settle the controversy, it  will
be more appropriate if leave is granted to the petitioner  and  this  matter
is tagged along with C.A. No. 7295 of 2012 and C.A. No. 11895 of 2014.
19.    Accordingly, we grant leave and tag this appeal with  C.A.No.7295  of
2012 and C.A.No.11895 of 2014.


                                                                .……………………..J
                                                            (Madan B. Lokur)



New Delhi;                                                       ..……………………J
March 28, 2016                                                 (S. A. Bobde)

-----------------------
[1]


     (2013) 10 SCC 772
[2]  211 (2014) DLT 462
[3]  171 (2010) DLT 600