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TMI Blog2020 (1) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... emption to the Ministry of Revenue from the applicability of Section 33 of the PWD Act. At this juncture, it requires to be noted that Section 34 of the Rights of Persons with Disabilities Act, 2016 which has replaced the PWD Act is in pari materia Section 33 of the PWD Act. 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 impugned order of the CAT is set aside - Respondents will within a period of eight weeks from the date of receipt of a certified copy of this order, ascertain which posts in the IRS (IT) and IRS (C CE) earmarked for PH category can be allocated for those with B/LV - petition disposed off. - W.P.(C) 1904/2018 - - - Dated:- 20-1-2020 - JUSTICE S. MURALIDHAR AND JUSTICE TALWANT SINGH Petitioner: Petitioner-in-person. Respondents: Mr. Kirtiman Singh, CGSC with Mr. Waize Ali Noor and Mr. Rohan Anand, Advocates for UOI. Mr. Naresh Kaushik, Ms. Shriambra and Ms. Vibhuti, Advocates JUDGEMENT Dr. S. Muralidhar, J.: 1. The challenge in this petition is to an order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) Blindness or low vision ( B/LV ); (ii) Hearing Impairment ( HI ); (iii) Locomotor disability or cerebral palsy ( LDCP ), in the posts identified for each disability. 5. In terms of the proviso to Section 33, it was open to the appropriate government to exempt establishments from the provisions of Section 33 of the PWD Act by issuing a notification, having regard to the type of work carried on in any department or establishment. 6. The case of the Petitioner is that the Cadre Controlling Authority ( CCA ) of the IRS (IT) and the IRS (C CE) has not taken any such exemption from reserving posts in the B/LV category, as required by the aforesaid Section 33 of the PWD Act, from the Central Government. In other words, it was contended that as against the vacancies for which the CSE, 2011 was conducted, it was obligatory for the Department of Revenue, Ministry of Finance to provide reservations for the B/LV category in the posts under the IRS (IT) and the IRS (C CE) as well. 7. At the time when the Petitioner filed the O.A. before the CAT in 2013, the decision of the Supreme Court in Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All the services except IRS (IT) and IRS, (C CE) should provide reservation to persons with visual disabilities on the condition that these persons should be able to perform with the help of appropriate assistive devices including computer and software. 10. The fact, however, remains that there was no notification issued by the Central Government, in terms of the proviso to Section 33 of the PWD Act, exempting the CCA of the IRS (IT) and IRS (C CE) from providing reservations to the PH category, in particular to persons in the B/LV category. Stand of the Respondents before the CAT 11. The stand of the Ministry of Personnel, Public Grievances and Pension, Government of India, Respondent No. 1 before the CAT, 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 the Respondent No. 1 a list of successful candidates as well as the category to which each candi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department of Revenue, which is the CCA for IRS (IT) and IRS (C CE) has enjoyed exemption from allocating any vacancy for the B/LV sub-category and accordingly a Gazette Notification had been issued. The Revenue Department has made such an assertion in its reply to the applicant's RTI query, vide Annexure A-4 letter dated 17.05.2013. 15. At the same time, the CAT noted that from the letter dated 18th November, 2016 of the Ministry of Social Justice and Empowerment, it appeared that no exemption had been granted to any Department from the purview of Section 33 of the PWD Act. It was conceded that after the decision in Ravi Prakash Gupta (supra) and the subsequent decision of the Supreme Court in Union of India v. National Federation of the Blind (2013) 10 SCC 772, the Department 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Ravi Prakash Gupta (supra). 20. The precise grievance of the Petitioner is about the failure of the Respondents to make reservations for visually-impaired candidates in the IRS (IT) and the IRS (C CE). He states that there is 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. Mr. Shukla submitted that the CAT had erred gravely in not following the binding decision of this Court as well as Supreme Court 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. 21. Mr. Shukla also referred to the latest reply received by him on 26th November, 2019 from the Department of Revenue, Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e IRS (C CE) as well as the IRS (IT), apart from recognising the B/LV category, also provide reservation for the Multiple Disabilities category. 26. As regards vacancies, the Respondents have been unable to dispute the fact of existing vacancies, including a huge backlog of vacancies in the PH category that remain to be filled. 27. The Court is unable to find in the pleadings any justification by the Respondents for the failure to provide for reservations to the PH category from 1996 onwards. This position was squarely dealt with in the Ravi Prakash Gupta (supra) by the Supreme Court. In that case, the Supreme Court observed as under: 15. Although, the Delhi High Court has dealt with the aforesaid questions, we wish to add a few observations of our own in regard to the objects which the legislature intended to achieve by enacting the aforesaid Act. The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerebral palsy. Appointment of 1 blind person against 1 vacancy reserved for him/her will be made against a vacancy in an identified post for instance, the post of peon, which is identified for him in group D. Similarly, one hearing impaired will be appointed against one reserved vacancy for that category in the post of store attendant in group D post. Likewise, one person suffering from locomotor disability or cerebral palsy will be appointed against the post of Farash group D post identified for that category of disability. It was argued on behalf of Union of India with reference to the post of driver that since the said post is not suitable to be manned by a person suffering from blindness, the above interpretation of the Section would be against the administrative exigencies. Such an argument is wholly misconceived. A given post may not be identified as suitable for one category of disability, the same could be identified as suitable for another category or categories of disability entitled to the benefit of reservation. In fact, the second part of the Section has clarified this situation by providing that the number of vacancies equivalent to 1% for each of the aforemention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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