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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

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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 & others1,  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

1 Writ Petition No.6047 (MB) of 2009

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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.

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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

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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

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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/ Selection year

Total requisition vacancies

Total  no. of  filled vacancies

Roster  point for  Physical Handicapped

Category Remarks

1997-98 20 20 0 The requisition for more than 33 vacancies had not been sent  in  any Selection Year.   By clubbing  all the requisitioned 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 (Spl. Apptt.)

19 93 -

2004-05 -- 93 - 2005-06 14 107 01 Perma-

nent disability

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

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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

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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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