New Delhi: Lamenting the fact that a visually impaired candidate was made to run from pillar to post for his appointment despite a large number of backlog vacancies for persons with disabilities, the Supreme Court Monday directed the candidate, along with 10 others, to be considered for appointment against the backlog vacancies reserved for persons with disabilities (PWD), either in Indian Revenue Service (Income Tax) or in other service or branch.
In its judgment, a bench comprising Justices Abhay S. Oka and Pankaj Mithal asserted that there is a “gross default” on part of the Union of India in implementing the Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act, 1995 (PWD Act).
“If the appellant had implemented the PWD Act, 1995, in its true letter and spirit, respondent no.1 would not have been forced to run from pillar to post to get justice,” the court observed.
The judgment came the same day a Supreme Court bench headed by Chief Justice D.Y. Chandrachud issued guidelines for the visual media to ensure a dignified portrayal of persons with disabilities, while asserting that creative freedom does not entail freedoms to lampoon, stereotype, or disparage those already marginalised.
The court was hearing an appeal filed by the Union government challenging a judgment passed by the Delhi High Court which upheld an order passed by the Central Administrative Tribunal.
The respondent, Pankaj Kumar Srivastava, who is 100 percent visually impaired, had participated in the CSE 2008 as a physically challenged person. However, he was denied appointment after undergoing the written test and interview. He alleged that this was due to an error committed by the authority in computing the number of vacancies reserved for physically challenged candidates. He now spent the last 16 years fighting the legal battle before the Central Administrative Tribunal, the Delhi HC, and now the SC.
In its judgment passed Monday, the SC found that the affidavits filed by the central government “bring a sorry state of affairs on record”. It asserted that the government “failed to implement the provisions of the PWD Act, 1995.”
Srivastava, it said, “has been made to run from pillar to post to get an appointment, though there is a large backlog of vacancies in various PWD categories,” and pointed out that he had been fighting for justice since the year 2009.
The Supreme Court then used its powers under Article 142 of the Constitution, directing that Srivastava and 10 other visually impaired candidates who were above him in the merit list of CSE-2008 shall be considered for appointment against the backlog vacancies of PWD candidates either in IRS (IT) or in other service/branch. Article 142 allows the Supreme Court to pass any order necessary to do “complete justice” in any case.
The action giving appointments has to be taken within three months. The appointees will not be entitled to the arrears of salary. However, for retiral benefits, their services shall be counted from the date on which the last candidate of the visually impaired category in CSE-2008 was given an appointment.
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What the law says
The 1995 law directs the government to carve out reservations for three categories of persons — those suffering from blindness or low vision, hearing impairment, and locomotor disability or cerebral palsy. However, it also allows the government to exempt any establishment from the provisions of this section through a notification, having regard to the type of work carried on in any department or establishment.
Section 36 of the Act also says that if any vacancy cannot be filled due to non-availability of a suitable person with disability or, for any other sufficient reason in any recruitment year, such vacancies shall be carried forward in the succeeding recruitment year, and if in the succeeding recruitment year also suitable person with disability is not available, the vacancies may be filled by interchange among the three categories eligible for reservation.
Srivastava had alleged that four visually impaired candidates were selected that year, but without specifying whether they had been selected against reservation quota or against their own merit. He had asserted that five candidates belonging to the visually impaired category candidates ought to have been selected on their own merits, and Srivastava should have been selected against the reserved category.
During the hearing of the case, the Supreme Court, in August 2023, rapped the central government for not implementing the reservations under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in civil services from 1996 till 2009.
It had noted in the order passed in August 2023 that in the years between 1996 and 2009, there were a total of 41 backlog vacancies, out of which, five were for the visually impaired. The central government also informed the Supreme Court in April 2022 that categories of IRS (C&CE) and IRS (IT) were excluded from the reservation under Section 33 of the 1995 Act for the visually impaired. However, since the notification excluding these two categories for the visually impaired was not placed on record, the court had asserted in August last year that reservation will have to be provided to the visually impaired in these two categories as well.
The court had then directed the central government to redo the exercise of ascertaining the backlog vacancies for visually impaired.
It had also pointed out that out of the 41 backlog vacancies, only 22 had been filled. It, therefore, directed the central government to consider allowing interchange for filling of the vacancies.
‘Gross default’
In its judgment passed Monday, the Supreme Court noted that several backlog vacancies exist for the visually impaired categories in IRS (IT), and noted that from CSE-2014, visually impaired category candidates were in fact being selected for IRS (IT).
The order said that the total vacancies of PWD posts for IRS (IT) are 75.
“By applying the principles governing Section 36 of the PWD Act, 1995, the cases of respondent no. 1 and the other 10 candidates who are above him in merit could have been considered, especially when there is a gross default on the part of the appellant – Union of India in promptly implementing the provisions of the PWD Act, 1995,” the court then observed.
It further opined that the central government, at all stages, “has taken a stand which defeats the very object of enacting laws for the benefit of persons with disability.”
The legal struggle
After he was denied appointment, Srivastava approached the Central Administrative Tribunal (CAT), New Delhi, highlighting the backlog vacancies as per the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Through an order passed in October 2010, CAT directed the Union Public Service Commission (UPSC) and the Department of Personnel and Training (DoPT) to calculate the backlog vacancies following the mandate of the 1995 law. They were granted six months to finish the exercise. The Centre was also directed to inform Srivastava if service could be allocated to him.
In September 2011, UPSC informed him that his name did not figure in the merit list of CSE-2008 within the number of available vacancies for the visually imapaired category. This led to Srivastava filing another application before CAT.
In May 2012, CAT then told the UPSC that the candidates selected on their own merits must be adjusted in the unreserved/general category. CAT directed that candidates belonging to the Visually Impaired category must be selected against the reserved category and be given an appointment.
However, in August 2012, UPSC informed Srivastava once again that he was not qualified for appointment in the visually impaired quota. The Centre also challenged the May 2012 CAT judgment in the Delhi high court, which dismissed its appeal. The Centre now approached the Supreme Court with the same challenge.
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