VIVEK SINGH Vs STATE OF U.P
Bench: S.A. BOBDE,ASHOK BHUSHAN
Case number: C.A. No.-010381-010381 / 2014
Diary number: 21503 / 2013
Advocates: RAJIV TYAGI Vs
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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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