# National Federation of the Blind v. State of U.P

- **Citation:** (2013) 2 ILRA 1031
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-17
- **Case number:** Misc. Bench No.6047 of 2009
- **Bench:** Devi Prasad Singh, Ashok Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-federation-of-the-blind-v-state-of-u-p-42538
- **Pages:** 7

## Headnote

C.S.C.
Sri Rajnish Kumar

Persons
with
Disabilities(Equal
Opportunities,protection of Rights & Full
Participation) Act 1995-Section 32, 33-
Petitioner blind person-seeking direction
to

identify
and
to
ensure
their
appointment over all vacancies of class I,
II, III and 4th w.e.f. 07.02.1996-chief
secretary
directed
to
constitute
committee headed by officer rank of
secretary and principal secretary-fill up all
backlog vacancies within period of 6
month-after giving personal hearing to
the petitioner-petition allowed.

Held: Para-26
Keeping in view unjustifiable approach of
the
State
Government
and
lack
of
effective implementation of the Act, it
shall be appropriate that the Chief
Secretary of the State may constitute a
committee headed by an officer of the
rank of Secretary or Principal Secretary to
monitor the vacancies falling within the
quota of blind as well as physically
handicapped
persons.
All
backlog
vacancies should be filled up within a
period of six months in accordance with
rules.
The
petitioners
and
their
representative are permitted to represent
their cause before the Chief Secretary of
the State of U.P and who shall also
provide personal hearing before the
constitution of Monitoring Committee for
the purpose.

## Text

2 All] National Federation of the Blind Vs. State of U.P.

1031
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.07.2013

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
HON'BLE ASHOK PAL SINGH, J.

Misc. Bench No.6047 of 2009

National Federation of the Blind Petitioner
Versus
State of U.P.

 Respondent

Counsel for the Petitioner:
Sri Sudhir Kumar Misra
Sri Arun Kumar Mishra

Counsel for the Respondent:
C.S.C.
Sri Rajnish Kumar

Persons
with
Disabilities(Equal
Opportunities,protection of Rights & Full
Participation) Act 1995-Section 32, 33-
Petitioner blind person-seeking direction
to

identify
and
to
ensure
their
appointment over all vacancies of class I,
II, III and 4th w.e.f. 07.02.1996-chief
secretary
directed
to
constitute
committee headed by officer rank of
secretary and principal secretary-fill up all
backlog vacancies within period of 6
month-after giving personal hearing to
the petitioner-petition allowed.

Held: Para-26
Keeping in view unjustifiable approach of
the
State
Government
and
lack
of
effective implementation of the Act, it
shall be appropriate that the Chief
Secretary of the State may constitute a
committee headed by an officer of the
rank of Secretary or Principal Secretary to
monitor the vacancies falling within the
quota of blind as well as physically
handicapped
persons.
All
backlog
vacancies should be filled up within a
period of six months in accordance with
rules.
The
petitioners
and
their
representative are permitted to represent
their cause before the Chief Secretary of
the State of U.P and who shall also
provide personal hearing before the
constitution of Monitoring Committee for
the purpose.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard Mr. S.K. Rungta, learned
counsel appearing for the petitioners
assisted by Mr. Sudhir Kumar Mishra and
Smt. Sangeeta Chandra, learned Addl.
Chief Standing Counsel for the State as
well as Mr. Rajneesh Kumar, learned
counsel appearing on behalf of U.P. Public
Service Commission.

2. Learned counsel for the petitioners is
a blind person pursuing the present
controversy for his colleagues who have not
been given appointment by the State
Government in pursuance to statutory
mandate provided by the "Persons With
Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995"
(in short, 1995 Act). The 1995 Act came into
force on 7.2.1996. According to the
petitioners' counsel, in spite of repeated
orders passed by this Court, the Government
has been failed to comply with statutory
mandate to identify and fill up 1% vacancies
by blind persons. He further submits that
admittedly, the State Government has not
filled up the vacancies ignoring the statutory
mandate and the judgment of Hon'ble
supreme court decided on 7.7.2010 in
Special Leave Petition (C) No.14889 of
2009 Government of India versus Ravi
Prakash Gupta and another.

3. While assailing the conduct of the
State Government, it is vehemently
argued by the petitioners' counsel that the
State of U.P has adopted dilatory tactics
by not complying with statutory mandate
provided under 1995 Act.
1032 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

4. On the other hand, Smt. Sangeeta
Chandra, learned Addl. Chief Standing
Counsel submits that it is not adversarial
of litigation and the government is very
well trying to identify and fill up the
quota of blind persons. At no stage, the
government is trying to curtail the rights
of blind persons.

5. The petitioners' counsel has
submitted a written argument also. The
factual controversy depicted therein has
not been disputed by other side. From the
argument advanced by the parties' counsel
and the pleading on record, the factual
position is discussed hereinafter.

6. The foundation of the present writ
petition
dates
back
to
the
office
memorandum dated 9.6.2009 whereby the
State of U.P has proceeded with special
drive for recruitment of candidates to
clear the backlog vacancies. While
proceeding to fill up the backlog
vacancies through special recruitment
drive, no effective steps were taken to fill
up the quota of blind persons. Hence, the
petitioners approached this Court.

7. It was as far back as in the year
1972, the Government of U.P issued an
order providing 2% reservation for all
categories of persons with disabilities
including blind, hearing impaired and
locomotor disabled. On 8.6.1982, the
government took a decision to fill up the
vacancies of blind persons through special
recruitment drive since they were not
considered for appointment in pursuance
to the aforesaid Government Order. In
consequence thereof, 213 blind candidates
were appointed by the State Government
to fill up the backlog vacancies between
1972-82. It was in the year 1995, the
Parliament enacted 1995 Act(supra).
Apart from other things, the 1995 Act
provides for 3% reservation to the persons
with disabilities in all establishments of
appropriate Government to be equally
distributed to the extent of 1% each
among them and utilisation of vacancies
in identified posts for appointment against
1%
reservation
for
each
of
three
categories of persons with disabilities,
viz. Blind and low vision, hearing
impaired and locomotor disabled and
cerebral palsy respectively.

8. The State Government in
pursuance to the statutory mandate issued
an order dated 20.9.1997 to implement the
Scheme of reservation for physically
impaired persons. It appears that from
time to time recruitments were done but
the statutory mandate was not complied
with in its letter and spirit.

9. Between 1999 to 31.3.2010,
1,57,510 vacancies were advertised for
Group C post. 79826 vacancies were
filled up. It has been stated that out of
79826, 2445 were disabled but the
number of blind was only 49. In case the
quota of blind persons are calculated at
the rate of 1%, then it will come to 798.
The respondents have not provided detail
with regard to factual position of
subsequent period.

10. 3955 Group D vacancies were
advertised during the aforesaid period, out
of which 3733 were appointed which
includes 92 physically disabled persons but
only 11 were blind persons although the
quota of blind comes to 37. It has been
brought on record that from 1.2.2007 to
November, 2010, U.P. Secondary Board
made appointments against 2763 vacancies
out of which 79 were disabled but quota for
the blind was not made available though in
2 All] National Federation of the Blind Vs. State of U.P.

1033
terms of 1% reservation, 27 blind persons
ought to have been appointed.

11. 7968 persons were appointed as
Assistant Teacher out of which, 238 were
disabled. Submission is that though 79
blind persons ought to have been
appointed but no one succeeded to seek
appointment under the quota. It has been
brought on record that in 2008, 88,385
persons were appointed out of which 1932
were disabled and 399 persons were
blind. Against the vacancies of 88,385,
total 884 blind persons should have been
appointed but it was not done.

12. From the factual matrix on record
discussed hereinabove, there appears to be
no room of doubt that the State has not
taken the case of blind persons seriously. It
has been stated that the rights of physically
disabled persons including the blinds cannot
be curtailed by the State from being selected
and appointed in terms of the statutory
mandate. It is further stated that in
accordance with the Government Order
dated 3.2.2008, all vacancies under Group
C and Group D posts both identified and
unidentified should have been taken into
account but it appears that the State
Government acted in violation of its own
office memorandum dated 3.2.2008 while
computing the quota of blind persons and
proceeding with appointment and selection.

13. Sections 32 and 33 of the 1995
Act are relevant for disposal of present
controversy. For convenience, they are
reproduced as under :

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

Section 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."

14. A plain reading of the aforesaid
provisions reveals that it shall be
obligatory on the part of the State to
identify the posts in the establishments
which can be reserved for the persons
with disability. The Parliament to its
wisdom used the word, "establishments"
which means the different posts across the
table which shall include all the categories
of posts in the government. In case there
are some posts in Class-II or Class-I cadre
which can be very well occupied by blind
1034 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

persons or physically impaired or disabled
persons, then it is not permissible for the
State not to identify the posts. Neither
Section 32 nor Section 33 of 1995 Act
makes any distinction with regard to Class
A, B, C and D posts. Of course, option is
open for the Government to identify the
posts.

15. In the present case, it appears
that
the
government
assumed
that
identification is to be done only of Class
III and Class-IV posts and not the posts
falling within the higher category of
government
department.
While
identifying the posts, it is necessary for
the government to look into the nature of
job of different categories including
Class-I, Class-II, Class-III and Class-IV
and find out whether the blinds may be
accommodated and discharge duty. Under
Section 33, reservation has been made
from blindness or low vision, hearing
impairment and locomotor disability or
cerebral palsy.

16. Mr. Rungta while assailing the
conduct of the State invited attention to
some of the advertisements which reveals
that while advertising the vacancies,
conditions have been imposed that the
low vision or the blind persons should be
a person who can drive a cycle. We feel
that such condition imposed by the
appointing authority seems to be against
the spirit of Clause (1) of Section 33. By
imposing condition that a candidate
should possess efficiency to ride a cycle
virtually amounts to curtail the statutory
rights available to the blind persons under
Clause (1) of Section 33. No such
condition should have been imposed by
the government while advertising the
vacancies for any of the posts within its
jurisdiction to select and recruit the blind
persons. The medical certificate furnished
by the blind persons that he or she is blind
or physically impaired will suffice to
claim appointment under the provisions of
1995 Act and any such condition imposed
by the government while advertising the
vacancies shall be against the letter and
spirit of Section 33 of the 1995 Act.

17. Our attention has been invited to
the judgment of Hon'ble Supreme Court
in the case of Ravi Prakash Gupta (supra).
Their Lordships while reaffirming the
judgment of Delhi High Court has held as
under :

"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 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
2 All] National Federation of the Blind Vs. State of U.P.

1035
and posts were not 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."

18. Hon'ble Supreme Court has
upheld the judgment of Delhi High Court
long back as on 7.7.2010. Even after lapse
of 2 1⁄2 years, neither the statutory mandate
nor the judgment of Hon'ble supreme Court
has been complied with by the State
Government of U.P in its totality.

19. Smt. Sangeeta Chandra, learned
Additional
Chief
Standing
Counsel
submits
that
the
government
has
identified the posts and issued the
Government Order dated 13.1.2011 under
Section 32 of 1995 Act even for Group A
and Group B posts. Mere identification on
the part of the government without
complying with the provisions of Section
33 is not sufficient. The identification is
of 13.1.2011 but the fact remains that the
quota of blind persons necessary to be
filled up have not yet been exhausted by
the State by identifying the posts of
Groups A, B, C and D category. The
government seems to have not discharged
its statutory liability.

20. The factual position discussed
herein above with regard to backlog has
not been disputed by the respondents
while filing affidavit. Once there is
backlog under the blind quota and while
making selection from time to time, the
whole of the quota has not been filled up
and still the blinds are running from pillar
to post and roaming round the State
Government of U.P. for their cause and
justice, it does not show that the State has
acted in true spirit of law while
discharging its constitutional and statutory
obligation. Since the controversy relates
to different departments, it is not possible
for this Court to monitor the conduct of
every department. It shall be appropriate
that the Chief Secretary of the State be
directed to meet out the requirement of
law to fill up the backlog vacancies with
regard to blind persons and monitor the
same.

21. It has been stated by learned
Addl. Chief Standing Counsel that that in
some of the departments, quota has been
filled up but the fact remains that the
backlog pointed out by the petitioners and
the existing anomalies while filling up the
vacancies referred to above have not been
disputed.

22. Justice is a social virtue and it
may be granted only by well organised
social order. With regard to concept of
justice, Hans Kelsen observed :-

"No
other
question
has
been
discussed so passionately, no other
question has caused so much precious
blood and so many bitter tears to be shed;
no other question has been the object of
1036 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

so much intensive thinking by the most
illustrious thinkers from plato to Kant,
and yet this question is today as
unanswered as it ever was. It seems that it is
one of those questions to which the resigned
wisdom applies that man can not find a
definite answer, but can only improve the
question. The longing for justice is man's
eternal longing for happiness. It is
happiness that man can not find alone, as an
isolated individual and seeks in society.
Justice is social virtue and it can be
guaranteed by a social order." (Kelsen
Hans, What is Justice ? At 1-2 (1957)

23. With the changing phase of
society, the old notion of justice has
undergone sea change. The orthodox
approach of justice has now supplemented
by modern concept of social justice to
wipe the tear of lowest strata of society.
The modern approach is to look at the
notion of justice from the point of view of
citizen to whom just treatment was due.

24. Pt. Jawahar Lal Nehru while
defending Directive Principles of State
Policy (Part IV of Constitution) in the
Constituent Assembly debate stressed
that, to quote :

"the first task of this Assembly is to
free India through a new Constitution, to
free the starving people, and to cloth
nacked masses, and to give every Indian
the fullest opportunity to develop himself
according to his capacity. The service of
India means the service of the millions
who suffer. It means the ending of
poverty and ignorance and disease and
inequality of opportunity. The ambition of
the greatest man of our generation has
been to wipe every tear from every eye.
That may be beyond us, but as long as
there are tears and sufferings, so long our
work will not be over. With the
independence, the national revolution
would be completed, but the social
revolution must go on. Freedom was not
an end itself, only, means to an end,... that
end being the raising of the people.. to
higher levels and hence the general
advancement of humanity."

25.Knowledge is not vested only in
the able persons. There has been great
thinker, philosopher, Poets and Scientists
who were physically disabled and blind
but the services rendered by them made
ever-lasting imprint on the sand of human
history. Some of them are Tilly Aston,
Louis Braille, Francis Joseph Campbell,
Kenneth Jernigan, Helen Keller, Juan
Carlos
Gonzalez
Leiva,
Erik
Weihenmayer, David Alexander Paterson,
Surdas, John Milton.

25. Apart from above, one of the
most
famous
and
surviving
legend
Scientist
'Stephen
Hawking'
is
a
physically crippled person but a leading
personality of Theoretical Physics.

26. Keeping in view unjustifiable
approach of the State Government and lack
of effective implementation of the Act, it
shall be appropriate that the Chief Secretary
of the State may constitute a committee
headed by an officer of the rank of Secretary
or Principal Secretary to monitor the
vacancies falling within the quota of blind as
well as physically handicapped persons. All
backlog vacancies should be filled up within
a period of six months in accordance with
rules. The petitioners and their representative
are permitted to represent their cause before
the Chief Secretary of the State of U.P and
who shall also provide personal hearing
before the constitution of Monitoring
Committee
for
the
purpose.
2 All] Vishal Kumar Srivastava Vs. State of U.P. and Ors.

1037

27. In view of above, the writ
petition is allowed. A writ in the nature of
mandamus is issued directing the State
Government to fill up all the backlog
vacancies of blind persons to the extent of
1% in every department in case already
not filled up, expeditiously, say within a
period of six months. Henceforth no
advertisement
shall
be
made
and
vacancies shall be filled up while
proceeding
with
recruitment
in
government departments, corporation and
local bodies without making a provision
with regard to vacancies of physically
handicapped persons including blind
persons.

The
Chief
Secretary
of
the
Government of U.P shall constitute a
Committee
to
monitor
and
ensure
compliance
of
the
judgment.
All
vacancies including backlog quota shall
be filled up with regard to blind persons
within the aforesaid period of six months.
The Chief Secretary of State of U.P shall
file a personal affidavit in this Court
indicating under what manner the backlog
quota of blind persons has been filled up.
He
shall
also
grant
time
to
the
representative of blind persons including
Mr. S.K. Rungta who is present in this
Court to invite his attention to different
backlog quota as well as irregularity
committed by different departments in
filling the vacancies meant for blind
persons and pursue their cause.

Registry to take follow up action.
The affidavit filed by the Chief Secretary
shall be placed before the Bench
immediately after six months.

The
writ
petition
is
allowed
accordingly. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.05.2013

BEFORE
THE HON'BLE SHABUHUL HASNAIN, J.

Service Single 6769 of 2007

Vishal Kumar Srivastava
 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
R. Vijay Singh

Counsel for the Respondents:
C.S.C.

U.P. Koshagar Lipikiya Sewa Niyamawali
1978-Rule16- Criteria for promotionjunior clerk to senior Assistant-petitioner
alongwith two others were considered
for
promotion-D.P.C.
found
eligible-
considering
criteria
for
promotionseniority
cum
suitability-rejection
of
unfit-other two promoted-by impugned
order
only
reason
disclosed-non
completion of 7 years as per -G.O.-
subsequently clarified to be applicable in
particular individual case-more over G.O.
can not override statutory provisionheld-petitioner entitled for promotion in
pursuance of recommendation of DPCwithout
entitlement
of
salary
on
promotional
post
e.g.
notional
promotion-but this period shall be taken
in
account
while
considering
next
promotion, and other benefits.

Held: Para-6
Accordingly, the order dated 10.8.2007
rejecting the case of the petitioner for
promotion is set aside. The case of the
petitioner should be considered for giving
him promotion from the date when his
name was considered and was illegally
rejected. His seniority should reckon from
the date aforesaid three persons were given
promotion. Since he has not worked on
promoted post hence it will be treated to be