VIVEK SINGH Vs. STATE OF U.P & ANR
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 10381 of 2014, Judgment Date: Aug 26, 2016
The High Court reiterated the settled position of
law that reservation for the physically handicapped category was to be
provided as a matter of law and that such reservation was to be made on the
basis of total sanctioned strength and not on the basis of available
vacancy of a recruitment year.
We are satisfied that the reservation which must be provided for, as
a matter of law has been duly provided by the State which has in fact
determined the roster point which was calculated for the number of posts
that ought to have been reserved from the year 1997-1998 to 2009-2010 and
have accordingly made appointments. It is another matter that the
appellant has not been appointed thereto.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.10381 OF 2014
VIVEK SINGH ...APPELLANT
VERSUS
STATE OF U.P. & ANR. ...RESPONDENTS
JUDGMENT
S. A. BOBDE, J.
On 29.01.2001, the U.P. Public Service Commission invited applications for
filling up 800 posts through the Combined State/Upper Subordinate Service
Examination 2001. Amongst others the posts to be filled up were Deputy
Collector – 9 posts, Deputy S.P. – 67 posts and Trade Tax Officer – 12
posts.
2. The appellant applied for selection under the physically
handicapped category along with the necessary certificate. His first
preference was for the post of Deputy Collector and second preference was
for the post of Trade Tax Officer. The appellant was duly selected and
placed at Sl.No.38 in the overall merit list. The U.P. Public Service
Commission recommended the appellant’s appointment as a Trade Tax Officer
under the quota reserved for physically handicapped candidates.
3. The appellant filed a writ petition before the Allahabad High
Court praying for appointment on the post of Deputy Collector. However,
pending the writ petition, he joined as a Trade Tax Officer in November,
2004.
4. On 26.11.2010, in National Federation of the Blind, U.P. Branch
and others vs. State of Uttar Pradesh & others[1], the Allahabad High Court
passed an interim order directing the State Government to henceforth not
fill up any vacancy unless a reservation of 3% was provided to physically
handicapped candidates from the initial stage, i.e., from the stage of
advertisement itself. The relevant portion of the order reads as follows:-
“As an interim measure, we further direct that henceforth, the State
Government or its authorities shall not fill up any vacancy falling within
the domain of the State Government or its instrumentalities unless from the
initial stage i.e. from the stage of advertisement of posts for recruitment
to fill up the posts, reservation of 3% under the Act is earmarked and
simultaneously filled up from open recruitment process. The State shall
ensure that not only the quota of blind persons but also the quota of other
categories under the Act shall be filed up simultaneously while making
recruitment of various posts falling under the domain of the State
Government and its instrumentalities.
Accordingly, the Government of U.P. shall issue a circular within one week
from today. We may caution the State Government that non-compliance of the
order passed by this Court today shall amount to contempt of this Court and
this Court may proceed suo moto against those who are at fault in not
filling the vacancies of blind and disabled persons under the Act.”
This was in view of the Persons with Disabilities
(Equal Opportunity, Protection of Rights and Full Participation) Act, 1995
(hereinafter referred to as the ‘Act’).
5. The High Court cautioned the State Government that non-
compliance of the Order would amount to contempt of Court. In pursuance of
this Order, the State Government carried out the following exercise:
On 13.1.2011 in pursuance of the aforesaid exercise, the State
Government issued a requisition to the Public Service Commission for
selection of suitable candidates belonging to the physically handicapped
category for appointment on 5 posts of Deputy Collector by a special
recruitment drive to fill up the backlog quota. In the said letter, 1 post
of Deputy Collector for the year 2001-2002 i.e. the year in which the
appellant had appeared and was declared successful was also directed to be
filled up.
6. In the pending writ petition, the appellant modified his prayer
and claimed that since 1 out of the 5 posts of Deputy Collector was to be
filled up under the special recruitment drive for physically handicapped
category, included the post for the year 2001-2002 in which the appellant
appeared and was selected, he is entitled to be selected therein.
7. The High Court accepted that the post of Deputy Collector for
selection in the year 2001-2002 was amenable to reservation for physically
handicapped category under the horizontal quota of 3%. The High Court
noted the contention of the State that for the year 2001-2002, 1 post of
Deputy Collector for physically handicapped category was identified as
backlog; that however does not mean that the appellant is entitled to be
appointed on that post. The High Court reiterated the settled position of
law that reservation for the physically handicapped category was to be
provided as a matter of law and that such reservation was to be made on the
basis of total sanctioned strength and not on the basis of available
vacancy of a recruitment year. However, the Court declined relief to the
appellant on the ground that if the appellant is adjusted against the sole
vacancy for the year 2001-2002, the entire seniority list will get
disturbed. The High Court proceeded to hold that in the year 2001-2002 all
the 9 posts for which requisition was made were filled up. However, the
High Court also noted that in the year 2010 it was found that 1 post out of
9 could have been reserved for physically handicapped candidates.
The appellant could not be given appointment in that recruitment year since
the posts were filled up. In particular, the High Court observed that many
recruitments have taken place between 2001-2002 till the date of the
decision of the High Court on 10.05.2013 and if the appellant is given
appointment with retrospective effect from 2001-2002, the entire seniority
position of the recruitment of that year as well as the subsequent years
will get disturbed. The High Court noted that the gap between the
recruitment year and the
year in which the appointment was claimed was more
than 10 years and since then recruitments have taken place almost every
year.
8. Before us, Mr. Raju Ramchandran, learned senior counsel for the
appellant argued that the High Court has accepted the legal entitlement of
the appellant and yet did not grant any relief. It was submitted that the
appellant is entitled for relief in view of the clear requirement of the
law. On the other hand, it was submitted on behalf of the State that the
State carried out an exercise in pursuance of the interim Order of the High
Court in the case of National Federation of the Blind, U.P Branch (supra)
where the Court directed the State Government not to fill up any vacancy
unless from the stage of the advertisement itself, reservation of 3% is
earmarked for the physically handicapped candidates. The State further
carried out an exercise to determine the roster points on which such
reservation would be available as follows:-
|Exam/ |Total |Total |Roster |Category|Remarks |
|Selection|requisiti|no. of |point for | | |
|year |on |filled |Physical | | |
| |vacancies|vacancie|Handicapped| | |
| | |s | | | |
|1997-98 |20 |20 |0 | |The |
| | | | | |requisition |
| | | | | |for more |
| | | | | |than 33 |
| | | | | |vacancies |
| | | | | |had not been|
| | | | | |sent in any |
| | | | | |Selection |
| | | | | |Year. By |
| | | | | |clubbing all|
| | | | | |the |
| | | | | |requisitione|
| | | | | |d posts on |
| | | | | |the basis of|
| | | | | |roster the |
| | | | | |vacancies |
| | | | | |had been |
| | | | | |identified |
| | | | | |and |
| | | | | |accordingly |
| | | | | |5 vacancies |
| | | | | |are |
| | | | | |calculated |
| | | | | |for filling |
| | | | | |up by |
| | | | | |backlog for |
| | | | | |various |
| | | | | |categories |
| | | | | |of physical |
| | | | | |handicapped |
| | | | | |candidates. |
|1998-99 |20 |40 |01 |P.B. | |
|1999-00 |10 |50 |- | | |
|2000-01 |09 |59 |- | | |
|2001-02 |15 |74 |01 |P.D. | |
|2002-03 |-- |93 |- | | |
|2003-04 |19 |93 |- | | |
|(Spl. | | | | | |
|Apptt.) | | | | | |
|2004-05 |-- |93 |- | | |
|2005-06 |14 |107 |01 |Perma- | |
| | | | |nent | |
| | | | |disabili| |
| | | | |ty | |
|2006-07 |08 |115 |- | | |
|2007-08 |22 |137 |01 |P.B. | |
|2008-09 |14 |151 |- | | |
|2009-10 |32 |183 |01 |P.D. | |
|Total: |183 |183 |05 | | |
9. It was pointed out on behalf of the State that for the year
2000-2001 in which 9 vacancies for Deputy Collector arose, there was no
roster point for the persons with disability. Such a point is available in
the next year i.e. 2001-2002. Therefore, in any case the appellant could
not have
been considered for the 9 vacancies which arose in the
year 2000-2001. It is pointed out on behalf of the State that as a result
of the aforesaid exercise, 5 vacancies are calculated for filling up the
backlog and have been filled up in accordance
with the roster.
10. Mr. Ramchandran contested this position by
submitting that the exercise has been carried out by the State from 1997-
1998 as is apparent from the chart. According to Mr. Ramchandran this
could have been carried out from 1995 in which case according to his
calculation the roster point could have been shifted to accommodate the
appellant. It is not possible to agree with this point since the exercise
was undertaken in pursuance of the Order of the High Court and the year
1997-1998 was taken as the starting point since that is the first year
after the Act came into force on 01.01.1996.
11. We are satisfied that the reservation which must be provided for, as
a matter of law has been duly provided by the State which has in fact
determined the roster point which was calculated for the number of posts
that ought to have been reserved from the year 1997-1998 to 2009-2010 and
have accordingly made appointments. It is another matter that the
appellant has not been appointed thereto.
12. In any case, we agree with the observation of the High Court that
a direction to accommodate the appellant in the selection year 2001-2002
would create difficulties in the seniority of those who have been appointed
every year since then, as observed earlier some of the Deputy Collectors
who have been appointed may have got promoted.
13. Lastly, we see no merit in the appeal and it is
hereby dismissed.
…………………….…..........….. J.
[S.A.BOBDE]
..............................………J.
[ASHOK BHUSHAN]
NEW DELHI,
AUGUST 26, 2016
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[1] Writ Petition No.6047 (MB) of 2009