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under G.O. No. 43/90/66 Appt. 4 dated 18.7.1972 had been
revoked by the Government letter dated 1.3.1979--Construc-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
"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
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-
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