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PETITIONER: DAYA RAM TRIPATHI

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH & ANR.

DATE OF JUDGMENT12/12/1986

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) KHALID, V. (J)

CITATION:  1987 SCR  (1) 574        1986 SCC  Supl.  497  JT 1986  1064            1986 SCALE  (2)1079

ACT:     Social  Justice to physically  handicapped  persons--Ap- pointment to the Provincial Civil Service (Executive Branch) denied  to  the appellant on the plea  that  2%  reservation under  G.O.  No. 43/90/66 Appt. 4 dated 18.7.1972  had  been revoked  by the Government letter dated  1.3.1979--Construc- tion  and  scope  of the letter  dated  1.3.1979  explained- Constitution of India, 1950, Article 38.

HEADNOTE:     As  far  back as 1972, the Uttar Pradesh  Government  by G.O.  No.  43/90/66-Apptt. 4 dated July 18,  1972  announced "for the physically handicapped persons, the reservation  in all  the services under the Government shall be 2%". AH  the Government  Departments were directed to follow  the  policy for reservation in services accordingly. Later, by G.O.  No. 7/4/1971-Personnel-2  dated May 20, 1978 the  Government  of Uttar  Pradesh while affirming the "reservation of 2%  posts for the’ appointment of disabled persons in all the services under the Government", defined who a physically  handicapped person  was.  Pursuant to a letter from the  Public  Service Commission there was  a proposal not to reserve any post for disabled  persons  in  the Provincial  Civil  Service.  This proposal,  however,  did not result in the issuance  of  any G.O.  by the Government. But the Public  Service  Commission was  informed  by  the  Government  by  their  letter  dated 1.3.1979 that none of the categories of disabled persure was suitable  for appointment to the U.P. Civil Service  (Execu- tive  Branch) and no reservation for disabled persons  might be made in the Provincial Civil (Executive Branch)  Service. In  1981  the Chief Secretary, Government of  Uttar  Pradesh addressed  all  the Secretaries to the Government,  Head  of Department  and Commissioners in Uttar Pradesh pointing  out that though a provision for reservation of 2% posts was made for  physically  handicapped persons by  G.O.  No.  43/90/66 dated July 18, 1972 in the services under the State  Govern- ment, appointments had not been made of handicapped  persons in accordance with the reservation. The necessity of  making appointments  of physically handicapped persons to  the  re- served  posts was impressed upon all the Secretaries,  Heads of  Departments  and Commissioners and it  was  particularly brought  to their attention that 1981 had been  declared  as

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"the International Year for 575 the  physically Handicapped Persons’. It was  also  directed that vacancies should be carried forward and efforts  should be  made  to ensure that the maximum  number  of  physically handicapped persons were appointed.     The  appellant, a disabled person who was successful  at the combined State Services Examination held in 1982 by  the Uttar Pradesh Public Service Commission was offered the post of  Manager Marketing and Economic Survey instead of a  post in  the Provincial Civil Service (Executive) Branch  on  the ground  that the reservation of 2% to the  disabled  persons had  been revoked by the Government letter  dated  1.3.1979. The  Writ Petition filed by the appellant was  dismissed  by the Allahabad High Court. Hence the appeal by special leave. Allowing the appeal, the Court.     Held:  A perusal of the letter dated 1.3.1979  indicates that  it was confined to "recruitment on the basis  of  Com- bined State Services Examination, 1978". It was not intended to be an amendment of G.O. No. 43/90/66 dated July 18,  1972 or G.O. No. 7/4/1971 dated May 20, 1978. It was not intended to  depart from general rule of reservation of 2%  posts  in favour  of  disabled persons in the case of  the  Provincial Civil Service (Executive Branch). Further in the face of the communication in 1981 by the Chief Secretary drawing  atten- tion  of all departments to the G.O. 1972, it is now  futile for  the Government to contend that the appellant cannot  be appointed   to  the  Provincial  Civil  Service   (Executive Branch).  Having announced very rightly their  determination to rehabilitate physically handicapped persons, by reserving posts  for them in all the services of the  Government,  the Government cannot now create needless hurdles. [577C-H]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4460  of 1986.     From  the  Judgment and Order dated  16.10.1985  of  the Allahabad  High Court in Civil Misc. Writ Petition No.  5440 of 1983. S.N. Kacker and J.M. Khanna for the Appellant: Anil Dev Singh and Mrs. Shobha Dikshit for the Respondents. The Judgment of the Court was delivered by 576     CHINNAPPA REDDY, J: Special leave granted. The appellant is  a physically handicapped person. He has  an  orthopaedic problem. He suffers from a permanent impediment of the  left leg, the result Of an old compound fracture. His  impediment did not prevent him from good academic performance. He  went further. He appeared at the combined State Services Examina- tion  held  in February, 1982 by the  Uttar  Pradesh  Public Service Commission. According to the advertisement issued by Commission, one post in the Provincial Civil Service (Execu- tive Branch) was reserved for handicapped persons.  However, the appellant was offered the post of Manager, Marketing and Economic  Survey instead of a post in the  Provincial  Civil Service (Executive Branch). He was not offered a post in the Provincial  Civil Service (Executive Branch) on  the  ground that the reservation of 2% in the Uttar Pradesh Civil  Serv- ices for physically handicapped persons had been revoked  by the  State  Government by their letter dated  1.3.  1979  in regard  to the Provincial Civil Service (Executive  Branch). Thereupon the appellant filed a Writ Petition under  Article 226  of  the Constitution in the Allahabad High  Court.  The

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Writ Petition was dismissed by the High Court on the  ground that there was no reservation of posts for physically handi- capped  persons in the Provincial Civil  Service  (Executive Branch). The appellant has come before us under Article  136 of the Constitution.     As  far  back as 1972, the Uttar Pradesh  Government  by G.O.  No.  43/90/66-Apptt. 4 dated July 18,  1972  announced "for the physically handicapped persons, the reservation  in all the services under the Government shall be 2%." All  the Government  Departments were directed to follow  the  policy for reservation in services accordingly. Latter, by G.O. No. 7/4/1971-Personnel-2  dated May 20, 1978 the  Government  of Uttar  Pradesh while affirming the "reservation of 2%  posts for the appointment of disabled persons in all the  services under the Government," defined who a physically  handicapped person was and added the following instruction:--     "That in this context, I have to make it clear that  the physical  disability should not be of the nature  which  may cause  interference in discharge of duties  and  obligations attached to the concerned service. Accordingly if the  serv- ice  is as such that it require continuous use of eye,  then in  such case reservation cannot be given to the blind  per- sons.  In  the  same manner if  some  services  specifically involves  the  hearing faculty then no  reservation  can  be given to the deaf persons in such services and in a  service where the use of a particular organ of the body 577 is  to be used then the person disabled of  that  particular organ  cannot be given reservation in that service.  On  the basis of the principle every department will issue necessary orders regarding reservation for the post under their subor- dination."     It  appears  that there was some discussion  within  the department  pursuant  to a letter from  the  Public  Service Commission and their was a proposal not to reserve any  post for  disabled persons in the Provincial Civil Service.  This proposal,  however,  did not result in the issuance  of  any G.O.  by the Government. But the Public  Service  Commission was  informed by the Government by their letter  dated  1.3. 1979  that  none of the categories of disabled  persons  was suitable  for appointment to the U.P. Civil Service  (Execu- tive  Branch) and no reservation for disabled persons  might be made in the Provincial Civil (Executive Branch)  Service. A  perusal of the letter dated 1.3. 1979 indicates  that  it was confined to "recruitment on the basis of Combined  State Services  Examination, 1978". It was not intended to  be  an amendment  of G.O. No. 43/90/66 dated July 18, 1972 or  G.O. No.  7/4/1971  dated May 20, 1978. It was  not  intended  to depart  from  general  rule of reservation of  2%  posts  in favour  of  disabled persons in the case of  the  Provincial Civil  Service (Executive Branch). Again in 1981  the  Chief Secretary,  Government  of Uttar Pradesh addressed  all  the Secretaries  to  the Government, Heads  of  Departments  and Commissioners  in Uttar Pradesh pointing out that  though  a provision for reservation of 2% posts was made for physical- ly handicapped persons by G.O. No. 43/90/ 66 dated July  18, 1972  in the services under the State  Government,  appoint- ments had not been made of handicapped persons in accordance with  the reservation. The necessity of making  appointments of physically handicapped persons to the reserved posts  was impressed upon all the Secretaries, Heads of Departments and Commissioners.  and  it was particularly  brought  to  their attention that 1981 had been declared as ’the  International Year  for the Physically Handicapped Persons’. It  was  also directed  that vacancies should be carried forward  and  ef-

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forts  should be made to ensure that the maximum  number  of physically  handicapped persons were appointed. In the  face of  this  communication from the Chief Secretary,  we  think that it is now futile for the Government to contend that the appellant cannot be appointed to the Provincial Civil  Serv- ice  (Executive Branch). Having announced  their  determina- tion,  very  rightly  too in our  opinion,  to  rehabilitate physically handicapped persons, by reserving posts for  them in all the services of the Government, the Government cannot now create needless hurdles. The State Civil Service (Execu- tive  Branch)  is a large enough service  which  can  easily accommodate physically handicapped 578 persons  in suitable posts. A direction will, therefore,  be issued  to  the Government of Uttar Pradesh to  appoint  the appellant  to  the Uttar Pradesh  Civil  Service  (Executive Branch)  with effect from the date on which he  should  have been  appointed in the ordinary course. He will be  entitled to  all the other service benefits. He is also  entitled  to costs. The appeal is allowed accordingly. S.R.                                                  Appeal allowed. 579