REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO.14889 OF 2009  

Govt. of India  through Secretary & Anr. .. Petitioners

Vs. Ravi Prakash Gupta & Anr.  .. Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. The Government of India, through the Secretary,  

Ministry  of  Personnel  &  Public  Grievances,  

Department of Personnel and Training and through  

the  Secretary,  Ministry  of  Social  Justice  and  

Empowerment, has filed this Special Leave Petition

against the judgment and order dated 25th February,  

2009,  passed  by  the  Delhi  High  Court  in  Writ  

Petition (Civil) No.5429 of 2008, allowing the Writ  

Petition  and  setting  aside  the  order  dated  7th  

April, 2008, passed by the Central Administrative  

Tribunal,  Principal  Bench,  New  Delhi,  in  O.A.  

No.1397  of  2007,  filed  by  the  Respondent  No.1  

herein,  and  allowing  the  reliefs  prayed  for  

therein.   

2.  The Respondent No.1 is a visually handicapped  

person who suffers from 100% blindness. He appeared  

in the Civil Services Examination conducted by the  

Union Public Service Commission in the year 2006.  

After  clearing  the  preliminary  examination,  the  

Respondent No.1 appeared for the main examination  

in October, 2006 and was declared successful and  

was,  thereafter,  called  for  a  personality  test  

scheduled  for  1st May,  2007.   Pursuant  to  such  

interview,  the  names  of  474  candidates  who  were  

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selected were released on 14th  May, 2007. In the  

said list, the name of one other visually impaired  

candidate also figured.  The Respondent No.1 was at  

serial no.5 of the merit list prepared for visually  

handicapped  candidates,  who  had  been  declared  

successful  in  the  examination.  According  to  the  

Respondent No.1, although there were more than 5  

vacancies  available  in  the  visually  handicapped  

category, only one post was offered under the said  

category  and  he  was,  therefore,  not  given  

appointment despite the vacancies available.

3. Being  aggrieved  by  the  manner  in  which  

selections  were  made  for  appointment  in  the  

visually handicapped category, the Respondent No.1  

filed a Writ Petition, being Writ Petition (Civil)  

No.5338 of 2007, before the Delhi High Court.  The  

same was subsequently withdrawn since it was the  

Central  Administrative  Tribunal  only  which  had  

jurisdiction to entertain such matters at the first  

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instance.  The  Respondent  No.1,  accordingly,  

withdrew  the  Writ  Petition,  with  liberty  to  

approach  the  Central  Administrative  Tribunal.  

Thereafter, he filed an application under Section  

19 of the Administrative Tribunals Act, 1985, which  

was registered as O.A. No.1397 of 2007, staking his  

claim  for  appointment  under  the  reservation  of  

vacancies  for  disabled  categories  provided  for  

under Section 33 of the Persons with Disabilities  

(Equal Opportunities, Protection, Rights and Full  

Participation) Act, 1995, hereinafter referred to  

as  ‘the  Disabilities  Act,  1995’.  The  basic  

contention of the Respondent No.1 was that since  

the aforesaid Act came into force in 1996 providing  

a statutory mandate for reservation of 3% of the  

posts  available  for  persons  suffering  from  

different  kinds  of  disabilities  enumerated  in  

Section  33  of  the  Disabilities  Act,  1995,  such  

reservation ought to have been in force with effect  

from the date on which the Act came into force.  

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According to the Respondent No.1, if the vacancies  

were  to  be  considered  from  the  year  1996,  then  

instead of one vacancy being declared for the year  

in  question,  there  should  have  been  at  least  7  

vacancies  from  the  reserved  categories  of  

disabilities which were interchangeable.  It was,  

therefore,  the  case  of  the  Respondent  No.1  that  

having regard to the number of appointments made  

with  regard  to  the  disabled  categories  reserved  

under  Section  33  of  the  Disabilities  Act,  1995,  

since the Act came into force, there were at least  

7 posts which could be filled up in the year 2006.  

However,  in  that  year  only  one  post  from  this  

category had been filled.   It was, therefore, the  

case of the Respondent No.1 that being at serial  

no.5 of the list of successful candidates amongst  

the  physically  impaired  candidates,  there  were  

sufficient number of vacancies in which he could  

have been appointed and that the authorities had  

acted contrary to the provisions of the above Act  

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upon the faulty reasoning that the vacancies in the  

reserved posts could not be declared, without first  

identifying the same for the purposes of Sections  

32 and 33 of the Disabilities Act, 1995.  

4. The case of the Respondent No.1 having been  

negated  by  the  Tribunal,  the  Respondent  No.1  as  

indicated hereinbefore, moved the High Court and  

the  High  Court,  upon  accepting  the  Respondent  

No.1’s case, set aside the order of the Central  

Administrative Tribunal dated 7th April, 2008, and  

allowed the Respondent No.1’s O.A. No.1397 of 2007  

filed before the Tribunal. While allowing the said  

application, the High Court, upon observing that a  

clear vacancy was available to which the Respondent  

No.1  could  be  accommodated  on  the  basis  of  his  

position in the merit list, issued a mandamus to  

the Respondent No.1 to offer him an appointment to  

one of the reserved posts by issuing an appropriate  

appointment letter, within six weeks from the date  

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of  the  order.  Certain  consequential  orders  were  

also passed together with cost of Rs.25,000/- to be  

paid by the Petitioner herein.   

5. On behalf of the Government of India, which is  

the Petitioner herein, learned Additional Solicitor  

General,  Ms.  Indira  Jaising,  submitted  that  the  

submissions advanced on behalf of the Respondent  

No.1 which had been accepted by the High Court,  

were not tenable and that the Government of India  

had been actively involved in complying with the  

provisions of the Disabilities Act, 1995, after it  

came into force.  The learned ASG contended that  

the Government of India had been making reservation  

for physically handicapped persons in Group ‘C’ and  

‘D’ posts from 1977 and in order to consider the  

growing  demand  from  the  visually  handicapped  

persons, a meeting for identification of jobs in  

various  Ministries/Departments  was  scheduled  in  

1985 and 416 such posts were identified in Group  

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‘A’ and ‘B’ posts. In 1986, an Office Memorandum  

was  issued  by  the  Department  of  Personnel  &  

Training  (DoPT)  providing  for  preference  to  be  

given to handicapped person for these posts.  In  

1988, another Office Memorandum was issued by the  

Government  of  India  indicating  that  the  

identification done in the year 1986 would remain  

valid till the same was modified.   After the Act  

came  into  force  in  1996,  a  further  Office  

Memorandum  was  issued,  whereby  reservation  of  

physically handicapped persons in identified Group  

‘A’ and Group ‘B’ posts/services was extended to  

posts which were to be filled up through direct  

recruitment. Learned ASG submitted that in 1999 the  

Ministry  of  Social  Justice  &  Empowerment  

constituted an Expert Committee to identify/review  

posts in categories ‘A, ‘B’, ‘C’ and ‘D’, in which  

recommendations  were  made  for  identification  of  

posts for the visually handicapped persons.  The  

report of the Expert Committee was accepted by the  

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Ministry in 2001 and posts were duly identified for  

persons  with  disabilities.  Learned  ASG,  however,  

made it clear that the 416 posts, which had been  

identified  in  1985,  did  not  include  All  India  

Services and that for the first time in 2005, the  

posts  of  the  Indian  Administrative  Service  were  

identified  in  compliance  with  the  provisions  of  

Section  33  of  the  Disabilities  Act,  1995  and  

pursuant  to  such  identification,  the  posts  were  

reserved and filled up. Ms. Jaising also submitted  

that  reservation  upto  3%  of  vacancies  in  the  

reserved posts were, accordingly, identified with  

effect from 2006 and the claim of the Respondent  

No.1 for appointment on the basis of the argument  

that the reservation should have taken effect from  

1996 when the Act came into force, was liable to be  

rejected.

6. Appearing  in-person,  Mr.  Ravi  Prakash  Gupta,  

the Respondent No.1 herein, strongly defended the  

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impugned judgment of the High Court and urged that  

the Special Leave Petition filed by the Government  

of India was liable to be dismissed.  Mr. Gupta  

submitted  that  the  fact  that  he  was  completely  

blind  was  known  to  the  Petitioners  and  their  

respective  authorities  from  the  very  beginning,  

since he had annexed his blindness certificate with  

his original application in the proforma provided  

by the Union Public Service Commission (U.P.S.C.),  

which  showed  the  percentage  of  his  blindness  as  

100%.  However,  the  main  thrust  of  Mr.  Gupta’s  

submissions  was  that  when  the  Disabilities  Act,  

1995, came into force in 1996, it was the duty of  

the  concerned  authorities  to  reserve  3%  of  the  

total  vacancies  available  immediately  thereafter.  

The plea of non-identification of posts prior to  

the year 2006 was only an attempt to justify the  

failure of the Petitioners to act in terms of the  

Disabilities Act, 1995.  Mr. Gupta submitted that  

the High Court had negated such contention made on  

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behalf of the Petitioners and rightly directed the  

Petitioners to calculate the number of vacancies in  

terms of Section 33 of the above Act from 1996 when  

the said Act came into force.

7. Mr. Gupta then submitted that in terms of the  

Department’s OM No.3635/3/2004 dated 29th December,  

2005, reservations have been earmarked and should  

have been made available from 1996 itself and in  

the  event  the  vacancies  could  not  be  filled  up  

owing to lack of candidates, the same could have  

been carried forward for two years after which the  

same could have been treated as lapsed.   Mr. Gupta  

submitted that although the Petitioners were fully  

aware of the said Office Memorandum, they chose not  

to act on the basis thereof and as admitted on  

behalf of the Government of India, the IAS cadre  

was identified in 2006 for the purposes of Section  

33 of the Disabilities Act, 1995.  In fact, the Act  

remained  on  paper  as  far  as  visually  challenged  

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candidates  were  concerned  and  only  after  the  

judgments of the Delhi High Court in the case of  

Ravi Kumar Arora and in the case of T.D. Dinakar  

were delivered, that the identification process was  

started.   Mr.  Gupta  submitted  that  it  would  be  

pertinent to mention that the two above-mentioned  

candidates  were  appointed  in  the  Civil  Services  

without  waiting  for  identification  of  their  

respective  services  on  the  orders  of  the  High  

Court.  

8. Mr.  Gupta  submitted  that  the  plea  of  non-

identification of posts in the IAS till the year  

2006  could  not  absolve  the  petitioners  of  their  

statutory obligation to provide for reservation in  

terms of Section 33 of the aforesaid Act.

9. During the course of hearing, leave had been  

granted to one A.V. Prema Nath and one Mr. Rajesh  

Singh  to  intervene  in  the  proceedings.  The  

submissions made by the Respondent No.1 have been  

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repeated and reiterated on behalf of the Intervenor  

No.1, Shri A.V. Prema Nath by A. Sumathi, learned  

Advocate.  His written submissions are embellished  

with references to various decisions of this Court,  

including the decision in  Francis Coralie Mullin  

vs. Administrator, Union Territory of Delhi & Ors.  

[(1981) 1 SCC 608], regarding the right to life  

under Article 21 of the Constitution.  The main  

thrust of the submissions is with regard to the  

denial of rights to persons with disabilities under  

Section  33  of  the  Disabilities  Act,  1995,  which  

prevent them from enjoying their fundamental rights  

to equality and the right to live, by the State.   

10. More detailed submissions were made by Mr. S.K.  

Rungta, learned Advocate, appearing on behalf of  

the Intervenor No.2, Mr. Rajesh Singh, and it was  

also  sought  to  be  pointed  out  that  the  said  

intervenor was himself a candidate from amongst the  

visually impaired candidates and had, in fact, been  

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placed at serial no.3 in rank in the merit list for  

visually  impaired  candidates  in  the  Central  

Services Examinations, 2006, whereas the Respondent  

No.1 had been placed at serial no.5.   In other  

words, what was sought to be projected was that  

Shri  Rajesh  Singh  had  a  better  claim  for  

appointment  from  amongst  the  visually  impaired  

candidates over the Respondent No.1 and that if the  

vacancies  in  the  reserved  category  were  to  be  

calculated  from  1996  and  even  from  2001,  when  

identification  of  posts  in  respect  of  Civil  

Services forming part of the IAS Cadre was sought  

to be effected and a notification to that effect  

was issued, the Respondent No.1 could not have been  

appointed.

11. It was further submitted that in the decision  

of this Court in The National Federation of Blind  

vs. Union Public Service Commission & Ors. [(1993)  

2  SCC  411],  the  demand  by  blind  candidates  for  

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being permitted to write the examination in Braille  

script, or with the help of a Scribe, for posts in  

the IAS was duly accepted for recruitment to the  

lowest  posts  in  the  service  reserved  for  such  

persons.  It was also held that blind and partially  

blind  persons  were  eligible  for  appointment  in  

Government  posts.   It  was  submitted  that  the  

submissions made on behalf of the Petitioners that  

the  notification  in  respect  of  the  services  in  

respect of the Group ‘A’ and ‘B’ services in the  

IAS in 2005 was not a fresh exercise, but only an  

attempt  to  consolidate  and  strengthen  the  

identification already available and that such an  

exercise could at best be said to be enabling and  

supplementary action for the smooth implementation  

of the statutory provisions containing the scheme  

of reservation for persons with disabilities, could  

not be taken as an excuse to postpone the benefit  

which  had  already  accrued  to  candidates  falling  

within 3% of the vacancies indicated in Section 33  

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of the Disabilities Act, 1995.  It was also urged  

that after the issuance of OM dated 29th December,  

2005 and OM dated 26th April, 2006, there was hardly  

any room for the Government of India to deny the  

benefit  of  reservation  to  persons  with  

disabilities,  including  the  blind,  in  Civil  

Services encompassing the IAS from the year 1996  

itself.   Furthermore, since the Act itself did not  

make any distinction between Group ‘A’ and Group  

‘B’ services and Group ‘C’ and Group ‘D’ services,  

it was not available to the Government of India to  

contend  that  since  identification  had  been  done  

only for Group ‘C’ and Group ‘D’ services, prior to  

the year 2005, reservation in respect of Group ‘A’  

and ‘B’ services, which include the IAS, for which  

identification was commenced in 2005, would only be  

available thereafter.  

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12. On  behalf  of  the  Intervenor  No.2,  it  was  

submitted  that  the  Special  Leave  Petition  was  

liable to be dismissed with exemplary costs.

13. We have examined the matter with great care  

having regard to the nature of the issues involved  

in relation to the intention of the legislature to  

provide  for  integration  of  persons  with  

disabilities into the social main stream and to lay  

down a strategy for comprehensive development and  

programmes  and  services  and  equalization  of  

opportunities for persons with disabilities and for  

their  education,  training,  employment  and  

rehabilitation amongst other responsibilities.  We  

have considered the matter from the said angle to  

ensure  that  the  object  of  the  Disabilities  Act,  

1995, which is to give effect to the proclamation  

on  the  full  participation  and  equality  of  the  

people with disabilities in the Asian and Pacific  

Region, is fulfilled.

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14.  That  the  Respondent  No.1  is  eligible  for  

appointment in the Civil Services after having been  

declared  successful  and  having  been  placed  at  

serial no.5 in the disabled category of visually  

impaired candidates, cannot be denied.  The only  

question  which  is  relevant  for  our  purpose  is  

whether  on  account  of  the  failure  of  the  

Petitioners to identify posts for persons falling  

within the ambit of Section 33 of the Disabilities  

Act, 1995, the Respondent No.1 should be deprived  

of the benefit of his selection purportedly on the  

ground that there were no available vacancies in  

the said category.   The other question which is  

connected with the first question  and  which  also  

requires  our  consideration  is  whether  the  

reservation  provided  for  in  Section  33  of  the  

Disabilities  Act,  1995,  was  dependent  on  

identification of posts suitable for appointment in  

such categories, as has been sought to be contended  

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on behalf of the Government of India in the instant  

case.  

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 which the Act was  

enacted.  To accept such a submission would amount  

to accepting a situation where the provisions of  

Section  33  of  the  aforesaid  Act  could  be  kept  

deferred  indefinitely  by  bureaucratic  inaction.  

Such a stand taken by the petitioners before the  

High Court was rightly rejected.  Accordingly, the  

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submission made on behalf of the Union of India  

that identification of Grade ‘A’ and ‘B’ posts in  

the I.A.S. was undertaken after the year 2005 is  

not of much substance.  As has been pointed out by  

the High Court, neither Section 32 nor Section 33  

of  the  aforesaid  Act  makes  any  distinction  with  

regard to Grade ‘A’, ‘B’, ‘C’ and ‘D’ posts.  They  

only  speak  of  identification  and  reservation  of  

posts  for  people  with  disabilities,  though  the  

proviso to Section 33 does empower the appropriate  

Government  to  exempt  any  establishment  from  the  

provisions of the said Section, having regard to  

the type of work carried on in any department or  

establishment.  No such exemption has been pleaded  

or  brought  to  our  notice  on  behalf  of  the  

petitioners.

16. It is only logical that, as provided in Section  

32  of  the  aforesaid  Act,  posts  have  to  be  

identified  for  reservation  for  the  purposes  of  

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Section 33, but such identification was meant to be  

simultaneously  undertaken  with  the  coming  into  

operation  of  the  Act,  to  give  effect  to  the  

provisions of Section 33.  The legislature never  

intended the provisions of Section 32 of the Act to  

be used as a tool to deny the benefits of Section  

33  to  these  categories  of  disabled  persons  

indicated therein.  Such a submission strikes at  

the foundation of the provisions relating to the  

duty cast upon the appropriate Government to make  

appointments  in  every  establishment (emphasis  added).  For the sake of reference, Sections 32 and  33 of the Disabilities Act, 1995, are reproduced  

hereinbelow :

“32.Identification of posts which can be  reserved  for  persons  with  disabilities.-  Appropriate Governments shall –  (a) Identify posts, in the establishments,  

which can be reserved for the persons  with disability;

(b) At periodical intervals not exceeding  three years, review the list of posts  

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identified and up-date the list taking  into consideration the developments in  technology.

33.Reservation  of  posts.- Every  appropriate  Government  shall  appoint  in  every  establishment  such  percentage  of  vacancies not less than three per cent for  persons  or  class  of  persons  with  disability  of  which  one  per  cent  each  shall  be  reserved  for  persons  suffering  from-

(i) blindness or low vision; (ii) hearing impairment; (iii)  locomotor  disability  or  cerebral  palsy,

in  the  posts  identified  for  each  disability:

Provided, that the appropriate Government  may,  having  regard  to  the  type  of  work  carried  on  in  any  department  or  establishment  by  notification  subject  to  such  conditions,  if  any,  as  may  be  specified in such notification, exempt any  establishment from the provisions of this  section.”

17. While it cannot be denied that unless posts are  

identified for the purposes of Section 33 of the  

aforesaid Act, no appointments from the reserved  

categories contained therein can be made, and that  

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to such extent the provisions of Section 33 are  

dependent on Section 32 of the Act, as submitted by  

the learned ASG, but the extent of such dependence  

would be for the purpose of making appointments and  

not for the purpose of making reservation. In other  

words, reservation under Section 33 of the Act is  

not dependent on identification, as urged on behalf  

of the Union of India, though a duty has been cast  

upon  the  appropriate  Government  to  make  

appointments in the number of posts reserved for  

the three categories mentioned in Section 33 of the  

Act  in  respect  of  persons  suffering  from  the  

disabilities  spelt  out  therein.   In  fact,  a  

situation has also been noticed where on account of  

non-availability of candidates some of the reserved  

posts could remain vacant in a given year.  For  

meeting such eventualities, provision was made to  

carry forward such vacancies for two years after  

which they would lapse.  Since in the instant case  

such a situation did not arise and posts were not  

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reserved under Section 33  of  the  Disabilities  

Act,  1995,  the question of carrying forward of  

vacancies or lapse thereof, does not arise.  

 18. The  various  decisions  cited  by  A.  Sumathi,  

learned  Advocate  for  the  first  intervenor,  Shri  

A.V. Prema Nath, are not of assistance in the facts  

of this case, which depends on its own facts and  

interpretation  of  Sections  32  and  33  of  the  

Disabilities Act, 1995.

19. We, therefore, see no reason to interfere with  

the  judgment  of  the  High  Court  impugned  in  the  

Special  Leave  Petition  which  is,  accordingly,  

dismissed  with  costs.   All  interim  orders  are  

vacated.  The petitioners are given eight weeks’  

time from today to give effect to the directions of  

the High Court.

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20. The petitioners shall pay the cost of these  

proceedings  to  the  respondent  No.1  assessed  at  

Rs.20,000/-, within four weeks from date.  

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (CYRIAC JOSEPH)

New Delhi Dated:7th July, 2010.

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