Ronita Biswas | National Law University, Orissa | 14th February 2020
Dileep Kumar Shukla v. Union of India (W.P.(C) 1904/2018)
Facts
The Petitioner had secured 780th rank in the CSE, 2011. He was suffering from low vision (LV).
Based on his overall merit position and specifically in terms of merit position in the Blind/Low Vision (B/LV) category, the Petitioner was allotted IIS (JG).
The case of the Petitioner was that since no reservation was indicated in the IRS (IT) and the IRS (C & CE) for candidates belonging to the B/LV category, the Petitioner had given lower preference to these two services. The Petitioner’s contention before the Central Administrative Tribunal (CAT) was based on s.32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act), which required appropriate governments to identify posts in establishments which could be reserved for persons with disabilities. And further to appoint “in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from-
- Blindness or low vision (B/LV);
- Hearing Impairment (HI)
- Locomotor disability or cerebral palsy (LDCP), in the posts identified for each disability.
The proviso to s. 33 also provides that it is open to appropriate government to exempt establishments from the provisions of s. 33 of the PWD Act by issuing notification, “having regard to the type of work carried on in any department or establishment”.
The case of the Petitioner was that the Cadre Controlling Authority (CCA) of the IRS (IT) and the IRS(C & CE) had not taken any such exemption for reserving posts in the B/LV category, as required by s. 33 of the PWD Act. Thus, it was obligatory for the Dept. of Revenue, Ministry of Finance to provide reservations for the B/LV category in the posts under IRS (IT) and the IRS(C & CE), against the vacancies.
When the Petitioner filed the application before the CAT in 2013, the decision of the SC in Government of India v. Ravi Prakash Gupta (2010) 2 SCC (L&S) 448 had already been rendered. In terms of the said judgement, if, at the time of the allotment of services to successful candidates, seats in the disabled category remain vacant, then such ‘backlog’ seats must preferably be allotted to candidates in the same category. The Petitioner contended that from the date of the coming into force of the PWD Act till the date of the allotment of the service to him, 12 vacancies of IRS (IT) and IRS (C & CE) had occurred and, that therefore, one vacancy in either service could easily have been allotted to him.
Before the CAT, the Petitioner also relied on the reply received by him from the Central Board of Direct Taxes (CBDT) stating that persons with B/LV were not eligible to serve in the IRS (IT). Hence, there was no notification issued by the Central Government exempting the CCA of the IRS (IT) and IRS (C & CE) from providing reservation to the PH category, especially to persons belonging from the B/LV category. This was in violation to s. 33 of the PWD Act.
Stand of the respondent before the CAT
The stand of the Ministry of Personnel, Public Grievances and Pension, Government of India (Respondent 1) was that in terms of Note 1 below Rule 2, Rule 3, and Rule 22 of the Civil Services Examination Rules, 2011 (CSE Rules), the number of vacancies in each service are calculated and reported directly by the concerned (CCA) to the UPSC for filling up through the CSE. After the results of the CSE are declared, the UPSC forwards to Respondent 1, a list of successful candidates as well as the category to which each candidate belongs. This is equated with the total no. of vacancies to be filed up in the CSE, for allocation to various services in accordance with the vacancies reports by the CCA to the UPSC. This is done by considering the candidates’ preference for various services, their medical status and vacancies in particular categories i.e. SC/ST/OBC/PH and General. According to Respondent No. 1, its role was confined to allocation of service to the candidates declared successful, whose dossiers had been sent to it by the UPSC.
Further, given the preferences expressed by the Petitioner, he was found eligible for the IAAS (as per his rank), and was accordingly allotted to that service. The stand taken was that “there is no vacancy in IRS (IT) and IRS (C & CE)”, and also that he had assigned a lower preference to the aforesaid services vis-à-vis the IAAS and that therefore he could not be allocated to either of these services. Moreover, the IRS (IT) and IRS (C & CE) were not providing reservation for visually impaired persons.
Impugned order of the CAT
The CAT held that the Dept. of Revenue, which is the IRS (IT) and IRS (C & CE) “has enjoyed exemption from allocating any vacancy for the B/LV subcategory and accordingly a Gazette Notification had been issued”. At the same time, the CAT noted that no exemption had been granted to any Dept. from the purview of s.33 of the PWD Act. It was conceded that after the decision in Ravi Prakash Gupta and the subsequent decision of the SC in Union of India v. National Federation of the Blind (2013) 10 SCC 772, the Dept. of Revenue had started providing reservation for the B/LV category from 2014 onwards. The CAT also accepted that the carrying-forward of vacancies reserved for persons in the PH category for a period of up to two years and the inter-changeability of the reserved seats amongst the three categories of disabilities i.e. B/LV, HI and LDCP was also now being allowed.
The CAT accepted the plea of the Petitioner. However, it held that since all candidates selected by CSE, 2011 had been allocated the various services, completed their professional training, and confirmed at the respective services it merits serious consideration, “any judicial intervention, at this stage, in the matter of allocation of Services of the selected candidates in CSE – 2011, would trigger tremendous amount of de-stability and upheaval.” Hence the Petitioner’s application was dismissed by the CAT.
The Petitioner challenged the order before the HC.
Petitioner’s contention
The Petitioner submitted that the respondents and the CAT were bound by the decision in Ravi Prakash Gupta case and merely because the vacancies meant to be filled up by candidates from the PH category had been diverted to other categories, the same could not be an excuse for denying relief to those persons from the PH category who approached the CAT for relief.
The precise grievance of the Petitioner was about the failure of the Respondents to make reservations for visually-impaired candidates in the IRS (IT) and the IRS (C & CE). He stated that there was no justification to his not being allocated to the said services despite the availability of vacancies. In the notification for CSE, 2011, a total of 100 vacancies in the IRS (IT) and 88 in the IRS (C & CE) had been notified. There were 12 backlog vacancies in IRS (IT) and 10 in IRS (C & CE). In fact, from 1996 onwards till 2010, there had been a failure to provide for reservations to candidates in the PH category, and therefore, there was a backlog even on that ground. The CAT had erred gravely in not following the binding decision of the SC in Ravi Prakash Gupta (supra). In this context, reliance was placed on the decision in South Central Railway Employees Cooperative Credit Society Employees Union v. B. Yashodabai (2015) 2 SCC 727.
Respondent’s contention
The Respondents pointed out the various anomalies emerging from the replies received by the Petitioner pursuant to his RTI applications to various departments of the Government. He placed compilation of notifications issued for the CSEs held in 2010, 2012, 2017 and 2018 to indicate how reservation in the PH category has been provided for.
Held
At the outset, the Court noted that Appendix-IV of the CSE Rules listed out the services identified suitable for the PH category along with the relevant physical requirements and functional classifications. Therein, IRS (C & CE) identifies only Locomotor Disability and Hearing Impairment as the two disabilities for which there can be reservation, whereas the IRS (IT) includes the B/LV category. Even in the CSE Rules, both the IRS (IT) and the IRS (C & CE), apart from recognising the B/LV category, also provides reservation for the ‘Multiple Disabilities’ category.
The Court observed that the Respondents were unable to dispute and justify for the failure to provide for reservations to the PH category from 1996 onwards, including a huge backlog of vacancies in the PH category that remained to be filled. The Court found that there was no notification issued granting exemption to the Ministry of Revenue from the applicability of Section 33 of the PWD Act.
Reliance was place on the case of Ravi Prakash Gupta wherein the SC explained the legal position- that implementation of the statutory mandate under c. 33 of the PWD Act cannot await identification of posts suitable for appointment under s. 32. The SC held that such a stand “runs counter to the legislative intent” of the PWD Act and if accepted, “would amount to accepting a situation where the provisions of s.33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction.” In other words, the Court would not in the context of failure by the Government to provide reservations for the PH category, be presented with a fait accompli. The Court set aside the judgement of CAT.
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