SUMIT KAUR Vs. UOI AND ORS

JUDGEMENT

(1.) The petitioner is aggrieved by the non-selection and appointment to any Central Service pursuant to the Central Civil Services Examinations held in 2003. She is a polio-afflicted candidate and, consequently, suffers from locomotor disability. In terms of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereafter referred to as the Act ), complaining of arbitrariness in the method of selection, and non-adherence to the provisions of the Act, she approached the CAT by filing O.A. No.2559/2004. That application was dismissed by the impugned order of 20.04.2005. It is contended by the petitioner that the respondents were obliged to earmark at least 14 clear vacancies in the Civil Services Examination held in 2003. In support of this, it is urged that the total vacancies notified at the relevant time, inviting applications from eligible candidates, were 414.

(2.) The petitioner s counsel urged that the impugned order is in error as it ignores the total number of posts which had to be earmarked for reservation under 3% quota. Learned counsel submitted that the appointment given to one Sh. Arvind Kumar Guptarya in the circumstances, was contrary to the Scheme of the Act since he was lower in merit than the petitioner, the petitioner ought to have been offered that post. The petitioner had obtained 384th rank, whereas the said candidate had obtained 413th rank in the merit list. The respondents submission in this regard is that the number of vacancies for physically handicapped persons notified, i.e. 4, in the Civil Services Examination of 2003 was based upon the existing circular of 2001 which required determination/identification of vacancies having regard to the functional abilities of persons with disabilities. In these circumstances, the final figure of 4 posts earmarked under the Act could not be characterized as arbitrary. So far as the submission with regard to preference of selection and appointment of less merited candidate aforesaid was concerned, it was pointed out that Sh. Arvind Kumar Guptarya was accommodated not only as a person with disability, but also on account of his being an OBC candidate, and entitled to reservation on that score. Besides being hearing impaired, one of the posts earmarked in the AFHQ service was available for persons with his disability, but not for a candidate with locomotor disability. It was lastly urged that the petitioner has now been appointed to the Indian Revenue Service (IRS) as a result of her being successful in the Civil Services Examination, 2006.

(3.) It is evident from the above discussion, as indeed the CAT s impugned order, that the respondents had applied the 3% reservation as against the posts identified. This was based upon the then existing circulars which - as later judgments of the Supreme Court have shown - was not correct. While working out 3% quota under the Act, all establishments and administrative agencies have to take into consideration the total number of vacancies, and not merely those which are identified, and not only amongst those from identifiable cadre. To that extent, the circular is contrary to law, as held in Union of India and Ors. v. National Federation of the Blind and Anr, 2013 10 SCC 772. At the same time, the Court notes, however, that that alone would not be determinative of the merits of the case. In the present instance, the petitioner, no doubt, obtained 384th rank but at the same time, she is a general merit candidate suffering from locomotor disability. The candidature of Arvind Kumar Guptarya was accepted, on the other hand, because he was a hearing impaired candidate belonging to the OBC category for whom clear vacancies existed in the identified cadre. The vacancy in the AFHQ was not identified for locomotor disability. Furthermore, that candidate was not impleaded in the present proceeding, either here or in the CAT.