Shekhar Agarwal, Member (A):
The applicant is seeking the following relief:-
â(i)Â Allow this application.
(ii)Â Consequently direct respondent no.1 to draw up the IAS reservation roster keeping in view its own OMs and the principles that vacancies are to be considered from the year 1996 and that a vacancy arising first shall be filled first irrespective of which CSE it was filled through.
(iii)Â Consequently, direct respondent no.1 to allocate and appoint the applicant to the Indian Administrative Service on the basis of his 3rd rank in CSE 2010 in the visually impaired category and the then existence of 6 (backlog and fresh) vacancies. The respondent should also be directed that the applicant s appointment shall carry with it all consequential benefits such as those of seniority.
(iv)Direct respondent no.2 to draw up the IFS reservation roster as per the laid down rules, starting from the recruitment year 1996 and putting Hearing, Locomotor and Visual disability categories at points 1, 34 and 67 respectively in the reservation roster.
(v)Â Consequently direct the respondents to appoint visually impaired persons to the IFS on the basis of CSE 2010 as well (against 1 vacancy of 2020 and 2 backlog vacancies).
(vi) Grant any other relief which your Lordships deem fit and proper in the circumstances of the case and in the interest of justice.
Award the cost.â
2. Brief facts of the case are that the applicant was a candidate for the Civil Services Examination (CSE), 2010 under the categories of visually impaired persons. While appearing for the said examination he had given Indian Administrative Service (IAS) as his first service preference, Indian Foreign Service (IFS) as second and Indian Corporate Law (ICL) as his third preference. He qualified in the said examination securing 3rd rank amongst the category of visually impaired persons. He was allotted the Indian Corporate Law service which he has joined. His contention is that he should have been allotted IAS which was his first preference or IFS which was his second preference.
3. The applicant, who argued his case in person, stated that under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Act) are entitled to all benefits including that of reservation in public employment. This Act came into force from the year 1996. Under Section-33 of this Act reservation for persons with disabilities in public employment is provided for. Section-33 reads as follows:-
Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three percent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from:
Blindness or low vision,
Hearing impairment,
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.
The applicant argued that Central Government is bound to reserve 1 per cent of posts for the visually impaired in the IAS, IFS and other organized services. Despite the Act coming into force, Government of India did not implement reservation in terms of the statutory provisions. Consequently, persons with disabilities took the matter to Court. One such petition, WP(C) No. 6706/2002, titled Ravi Kumar Arora Vs. Union of India and Another was allowed by Honble High Court vide its judgment dated 15.04.2004 whereby a writ of mandamus was issued to the Government of India to appoint the applicant, who was visually impaired. It was held that Government of India could not have refused benefit of reservation in the organized Civil Services to persons with disabilities from the date the Act came into force. In pursuance of the aforesaid directions, Government of India issued instructions for proper implementation of Section-33 of the Act vide its O.M. No. 36035/3/2004-Estt(Res) dated 29.12.2005. As per the provisions of these instructions, carry forward of unfilled vacancies as backlog vacancies is provided for. It is also provided that oldest backlog vacancy is to be filled prior to any subsequent vacancy and fresh vacancy shall be filled when all backlog vacancies have been filled. It was also clarified that reservation of persons of disabilities has to be given effect from 1996. This was done by means of an O.M. No. 36035/8/2003-Estt (Res) dated 26.04.2006. In pursuance thereof appointments were made to the IAS of visually impaired persons. Further, in the case of Ravi Prakash Gupta Vs. UOI, SLP(C) No. 14889 of 2009, the Honble Supreme Court laid down on 07.07.2010 that vacancies though have arisen since the enactment of the Act are also to be filled, notwithstanding the argument that the vacancy was not identified or recruitment in that category was not made. It was also held that backlog vacancies will not lapse if an attempt to recruit against the same was not made.
4. The applicant s contention is that the respondents have not implemented the reservation correctly. Had they done so, the applicant would have been entitled to appointment either to IAS or IFS. According to him, the roster point for visually impaired category is point number 1 in a block of 100 for each CSE. However, respondent No.2 have not maintained the roster in the prescribed format. On the date on which the impugned order dated 11.08.2011 was passed by which the applicant was allotted ICL service, there were 6 reserved vacancies (including 5 backlog) in the IAS and 3 in the IFS (including 2 backlog and 1 fresh for CSE 2010. However, the applicant was illegally denied allocation to these services. He has, therefore, argued that the relief he has prayed for should be granted to him.
5. Respondent No.1 (DoPandT) have filed a detailed affidavit in which they have admitted to the fact that the implementation of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 started only from the year 2006. Thereafter, they have given details of the total appointments made in the IAS as well as in the visually impaired category in that service. According to them starting from 1996 and upto 2010 Examination all together 1298 appointments have been made to the IAS. That one percent reservation in all 13 candidates were to be appointed in the visually impaired category. They have gone on to give list of 13 candidates so appointed. According to which one candidate was appointed on the basis of 2005 examination, 4 on the basis of 2006 examination, 2 on the basis of 2007 examination, 2 on the basis of 2008 examination, 3 on the basis of 2009 examination and 1 on the basis of 2010 examination. Thus, according to them all the 13 vacancies in the IAS have been filled and there is no vacancy available for the applicant in the IAS.
6. Regarding the IFS, respondent No.1 has stated that starting from the year 1996 and going upto 2010 year examination, a total 281 appointments have been made to the IFS. With 1 percent reservation 3 posts were to be given to the visually impaired category. As on date 2 candidates have already been appointed on the basis of 2008 Examination and one vacancy of the 2009 Examination has been blocked for one candidate, namely, Sh. Yashwant G.V. as per directions of Madras Bench of CAT. Thus, according to them even in the IFS there is no vacancy against which the applicant could be considered for appointment. They have claimed that they have fully implemented the directions of Honble Supreme Court and have filled all the vacancies reserved for the visually impaired category.
7. We have heard both sides and perused the material placed on record.
8. The respondents have given year-wise details of vacancies that have arisen in IAS, IFS and also demonstrated how the appointments have been made of visually impaired category persons. According to the data presented by them there is now no vacancy available for the applicant in the IAS or the IFS. Admittedly, the applicant was 3rd in the merit in the 2010 Examination in the visually impaired category. In that year as per information given by the respondents one appointment of the visually impaired category has been made in the IAS. That vacancy has gone to Ms. K. Radhika Aiyer. After that the quota of visually impaired category including the backlog gets filled. The said Ms. Radhika Aiyer undisputedly was higher in merit as compared to the applicant. Thus, allocation of IAS to her in preference cannot be faulted. As far as the IFS is concerned, the respondents have demonstrated that in the year 2010 as per the roster no vacancy was available for visually impaired category. The applicant while arguing his case could not point out any discrepancy in the data presented by the respondents.
9. He, however, argued that the aforesaid Act came into force from the year 1996. Therefore, appointment to services under this Act should have started from that very year itself. This would imply that the reservation for the physically handicapped should have been applicable even for the 1995 Examination for which recruitments were made during 1996. However, the respondents have implemented the Act from the 1996 Examination. According to him, this was in violation of the provisions of the Act.
10. We have considered this argument of the applicant. The aforesaid Act came into force w.e.f. 1996 but the process of CSE 1995 must have started in the year 1995 itself. The computation of vacancies, the issue of advertisement inviting applications etc. would have all been done prior to the Act coming into force. Even the examination would have commenced before that. It would, therefore, not have been possible to implement the Act from the 1995 Examination. The O.M. of DoPandT dated 26.04.2006 directs all establishments to prepare reservation roster starting from the year 1996 only. Moreover, in Writ Petition (C) No. 5429/2008 titled Ravi Prakesh Gupta Vs. UPSC and Ors., the Honble High Court of Delhi on 25.02.2009 has analyzed the provisions of DoPandT s O.M. dated 26.04.2006 and have observed as follows:-
Following position follows from the reading of this OM:
(a) Reservation for persons with disabilities were to be earmarked from the year 1996;
(b) If the vacancies so earmarked had not been filled up by reservation in the previous year, they had to be treated as having been carried forward to the first recruitment year occurring after the issue of the said OM and were to be filled as such;
(c) Only if it was not possible to fill up such reserved vacancies during the following recruitment years and within a further period of two years thereafter, they were to be treated as lapsed.
(d) The mandate of even this OM was to calculate the backlog from the year 1996 and fill up the same in the following year. The OM is dated 26.04.2006 and therefore, the vacancies which were to be filled up in the year 2007 were to be done in the aforesaid manner.
It is obvious from the above that the Hon ble High Court has accepted the argument of the Government of India that the backlog of vacancies with disabilities is to be calculated from the examination year 1996 to be filled from the year 2007. Lastly, even if the contention of the applicant were to be accepted, one more vacancy in IAS would become available of the 1995 Examination. This is because as per applicant s own contention, 80 appointments were made to the IAS on the basis of 1995 Examination. However, since the applicant is 3rd in the merit list of 2010 Examination, this vacancy would not immediately go to him. Moreover, as per orders of Hon ble High Court all the backlog vacancies including this extra vacancy would have been offered to the candidates of 2005 Examination since filling up of vacancies started from that year. Thereafter, in case suitable candidates were not available, this would have carried forward to subsequent years. We do not see how the applicant would have benefited by this.
11. As far as IFS is concerned in the CSE 1995, 16 appointments were made. Even if this number is added to the total 281 appointments made from 1996 examination, an extra vacancy for the visually impaired category would not become available.
12. We, therefore, do not find any merit in the arguments of the applicant. The O.A. is dismissed. There shall be no order as to costs.