Holding

The Supreme Court held that the G.O. is valid, the identification of posts and disability categories is within the State Government’s power, and the High Court’s order striking it down is set aside.

Summary

The State of Uttar Pradesh issued a Government Order (G.O.) on 7 May 1999 identifying certain posts for reservation for persons with disabilities, reserving some posts for hearing‑impaired candidates but not for those with locomotor disability. In a recruitment for 1,651 Safai‑Karmis posts, three percent of vacancies were to be reserved for disabled candidates, and the appellants, who are locomotor‑disabled, applied, appeared for the cycling test and interview, but were not appointed. The Allahabad High Court struck down the G.O., holding that reservation must be available to all categories of disabled persons and that the G.O. was ultra‑violet to Articles 14 and 16 of the Constitution and to Sections 32 and 33 of the Persons with Disabilities Act. On appeal, the Supreme Court held that the High Court misread Sections 32 and 33; the identification of posts and the categories of disability to be filled is a power of the appropriate Government, and the G.O. is valid. Since the Safai‑Karmis posts were not identified for locomotor‑disabled candidates, the appellants were not eligible for appointment. The Court set aside the High Court’s order and dismissed the appeal.

Issues considered

Whether the G.O. dated 7 May 1999, which reserves certain posts only for hearing‑impaired candidates, is ultra vires to Articles 14 and 16 of the Constitution and to Sections 32 and 33 of the Persons with Disabilities Act, 1995.
Whether the identification of posts and the categories of disabled persons to be filled is within the legislative power of the State Government.
Whether the High Court's order striking down the G.O. can be sustained.
Whether the appellants, being locomotor‑disabled, are eligible for appointment to the Safai‑Karmis posts.

Legislation cited

Code of Civil Procedure, 1908s. Order XLI Rule 33
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995s. 32, s. 33
Uttar Pradesh Reservation Act, 1993s. 3

Subjects

Persons with disabilitiesReservationSection 32Section 33Uttar Pradesh Reservation ActEmployment appointmentSafai‑KarmisConstitutional lawDiscrimination

Judgment

836 [2022]REPORTS
SUPREME COURT 6 S.C.R. 836 [2022] 6 S.C.R.

A AJAY KUMAR PANDEY & ORS.
v.
STATE OF U.P. & ORS.
(Civil Appeal No. 4811 of 2022)
B AUGUST 01, 2022
[HEMANT GUPTA AND VIKRAM NATH, JJ.]
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 – ss.32 and 33 –
Reservation for disabled candidates – Eligibility for appointment –
C
State Government circulated G.O. dated 07-05-1999 identifying the
posts which can be manned by suitable disabled candidates under
the Disabilities Act, 1995 – High Court struck down the G.O. holding
that insofar as it provided reservation to persons with disabilities in
the category of hearing impairment alone, it was illegal and ultra-
D vires to Arts. 14 and 16 of the Constitution as well as s.3 of the U.P.
Reservation Act of 1993 and ss.32 and 33 of the Disabilities Act,
1995; and that reservation would be applicable to each category
of disabled persons – Held: The High Court completely misread
ss.32 and 33 of the Disabilities Act, 1995 – Identification of posts
and the category of disabled candidates who could be appointed
E
against the posts reserved is the power conferred on the appropriate
Government, which is the State Government in the present case –
The State Government took a conscious decision to reserve certain
posts for hearing impaired candidates and not for candidates with
locomotor disability – Order of High Court striking the G.O. in
F question as a whole was based on surmises and conjectures, and
thus the said order cannot be sustained in law – Since the posts in
question, i.e. posts of Safai-Karmis were not identified to be filled
up from amongst the candidates having locomotor disability, the
appellant could not be appointed against such category of post,
even though they had appeared for cycling test or for interview –
G
Appellants were not eligible for the appointment against such posts
– Constitution of India, 1950 – Arts. 14 and 16 – U.P. Reservation
Act of 1993 – s.3 – Service Law – Appointment – Of persons with
disabilities.

H
836
AJAY KUMAR PANDEY & ORS. v. STATE OF U.P. & ORS. 837

Disposing of the appeal, the Court A
HELD:1. The G.O. dated 7.5.1999 has to be examined in
view of Sections 32 and 33 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995. The High Court has completely misread Sections 32 and
33 of the Act. [Paras 11, 12][843-A-B, F-G] B
2.1. A reading of the impugned judgment of the High Court
shows that 3% posts in each cadre dehors the identification of
the posts are to be reserved for persons with disability, with
blindness or low vision, hearing impairment and locomotor
disability. Such view of the High Court is not the correct C
enunciation of law. The 3% reservation is to be in an establishment
and not in all cadres of an establishment irrespective of the nature
of job. [Para 15][845-F-G]
2.2. A reading of the G.O. dated 7.5.1999 shows that posts
have been identified to be filled up from physically handicapped D
category in category C and D posts. Such identification of the
posts in an establishment is in terms of Section 32(a) of the Act.
Reservation of posts under Section 33 of the Act is not for all
categories of posts irrespective of nature of work to be carried
out. The State Government has taken a conscious decision to
reserve certain posts for hearing impaired candidates and not E
for the candidates with locomotor disability. [Para 16][845-G-H;
846-A-B]
2.3. The G.O. dated 07.05.1999 could not be set aside in
exercise of the power of judicial review on the basis of cursory
glance of the G.O. dated 07.05.1999. The identification of the F
posts and the category of the disabled candidates who could be
appointed against the posts reserved is the power conferred on
the appropriate Government, which is the State Government in
the present case. The order of the High Court striking the G.O.
as a whole is on the basis of surmises and conjectures, thus the G
said order cannot be sustained in law. [Paras 17, 18][846-D-E, G]
3. Since the posts in question, i.e. posts of Safai-Karmis
were not identified to be filled up from amongst the candidates
having locomotor disability, the appellant could not be appointed
H
838 SUPREME COURT REPORTS [2022] 6 S.C.R.

A against such category of post, even though they had appeared for
cycling test or for interview. The appellants were not eligible for
the appointment against such posts. [Paras 18][846-G-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.4811 of
2022.
B From the Judgment and Order dated 15.02.2019 of the High Court
of Judicature at Allahabad in Writ-A No.25148 of 2018.
Dr. Menaka Guruswamy, Sr. Adv., Pradeep Kumar Yadav, Yash
S. Vijay, Utkarsh Pratap, Sanjeev Malhotra, Advs. for the Appellants.

C Ms. Ruchira Goel, Adit Jayeshbhai Shah, Advs. for the
Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order passed by the
D
High Court of Judicature at Allahabad on 15.2.2019 whereby though the
Government Order1 dated 7.5.1999 was struck down, but selection to
the post of Safai-Karmis made in pursuance of the advertisement dated
16.6.2008 was not interfered with.
2. The facts leading to the present appeal are that an advertisement
E was published on 16.6.2008 inviting applications for 1651 posts of safai-
karmis in District Mau, out of which 346 posts were reserved for
Scheduled Caste, 34 for Scheduled Tribe and 445 for Other Backward
Class. It further stated that reservation would also be in respect of the
advertised posts to women, disabled candidates, freedom fighters and
F ex-servicemen as per government decisions, though the number of such
reserved posts has not been specified.
3. The appellants have mentioned in the writ petition filed, the
record of which was called from the High Court, that there were 50
posts reserved for disabled candidates. However, such 50 posts were
G said to be on the basis of 3% of the total posts advertised and not as per
the reservation policy of appointment of the disabled candidates in the
State.
4. In respect of disabled candidates, the State Government had
circulated a G.O. dated 07.05.1999 identifying the posts which can be
H 1
For short, the ‘G.O.’
AJAY KUMAR PANDEY & ORS. v. STATE OF U.P. & ORS. 839
[HEMANT GUPTA, J.]

manned by such suitable disabled candidates under Persons with A
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 19952. For the present appeal, relevant clauses of the
G.O. pertaining to Group D posts are reproduced hereunder:
“3. In this regard, the government has identified the posts of Group
‘C’ and Group ‘D’ for the purpose of ensuring reservation in public B
services under Section 32 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 and in the context of the Uttar Pradesh Public Service
(Reservation for Physically Handicapped, Dependents of Freedom
Fighters and ex-military officials) (Amendment) Act, 1997
promulgated by the Department of Personnel. List of identified C
posts is enclosed herewith.
4. I am directed to state that appointment should be made to the
identified posts under the posts reserved for these classes. In the
event of non-filing of the vacancy due to non-availability of suitable
candidates, it shall be carried over to the next recruitment. D

xx xx xx

E

F

G

xx xx xx
2
For short, the ‘Act’ H
840 SUPREME COURT REPORTS [2022] 6 S.C.R.

A APPENDIX A
PHYSICAL REQUIREMENTS

B

C

APPENDIX B

D

E

F

5. A perusal of the above G.O. shows that the posts of Sweeper
G Dry, Sweeper Wet, Sweeper Sewer, Sweeper Cleaner & Related
Workers could be filled up by the candidates who are deaf or partly
deaf. The posts of Daftry, Attendant, Peon, Office Boy, Dusting Man
Farash, Process Server etc. were identified to be filled up by the
candidates with locomotor disability.

H
AJAY KUMAR PANDEY & ORS. v. STATE OF U.P. & ORS. 841
[HEMANT GUPTA, J.]

6. The appellants, being persons with locomotor disability, A
submitted their application forms with locomotor disability certificates to
the effect, that Mr. Ajay Kumar Pandey had 50% Loco Motor Disability.
Chandra Bali Ram had Loco Motor Disability of PPRP left upper limb
60%. Ram Bhawan Singh had Muscular Dystrophy of PPRP Right upper
limb 70%.
B
7. It is the case of the appellants that they participated in the
cycle test and also appeared for interview but were not appointed, which
led them to file writ petition before the High Court in the year 2018. The
High Court held that under the Act, there are other forms of disabilities
in addition to the hearing impairment. Thus, all categories of disabled
persons were found entitled to avail reservation up to 3 percent, of which C
one percent each is available for disabled candidates suffering from (i)
blindness or low vision, (ii) hearing impairment, and (iii) locomotor
disability or cerebral palsy. Hence, the High Court found the G.O. to be
ultra-vires to the Constitution and held as under:
“Section 32 only allows the State Government to identify posts in D
each establishment which can be reserved for persons with
disabilities. The post of Sweeper in the establishment of District
Panchayat Raj Officer is undoubtedly the post which has been
identified for applying reservation in favour of disabled persons.
The purpose of Section 32 stands fulfilled with the said E
identification. Therefore, reservation as per law is applicable on
the said post of Sweeper to the disabled persons.
The disabled persons as per the definition of disability under Section
2 (i) of the Disabilities Act, 1995 includes inter-alia other forms of
disability in addition to hearing impairment. Thus, in view of Section F
33 of the Disabilities Act, 1995 read with Section 3 of the U.P.
Reservation Act of 1993, all categories of disabled persons are
entitle to avail reservation upto 3 percent of which 1 percent each
is available to persons suffering from (i) blindness or low vision;
(ii) hearing impairment; and (iii) locomotor disability or cerebral
palsy. G
xx xx xx
Thus, the respondents cannot even make any intelligible
distinction between the different categories of disabled
persons in the matter of providing reservation when the Acts
H
842 SUPREME COURT REPORTS [2022] 6 S.C.R.

A provide for reservation in favour of all categories of disabled
persons.
In view of the aforesaid facts and circumstances, we are of the
opinion that the Government Order No. 4161/63-1-99-18(24)/97
dated 07.05.1999 insofar as it provides reservation to persons with
B disabilities in the category of hearing impairment alone is illegal
and ultra-vires to Article 14 and 16 of the Constitution of India as
well as Section 3 of the U.P. Reservation Act of 1993 and Sections
32 and 33 of the Disabilities Act, 1995. The reservation would be
applicable to each category of disabled persons in accordance
with the provisions of U.P. Reservation Act of 1993 read with
C Disabilities Act, 1995.” (Emphasis Supplied)
8. The learned counsel for the appellants contended that once the
G.O. dated 7.5.1999 has been struck down, as a consequence thereof,
the appellants were entitled to be appointed in the category of persons
suffering from locomotor disability.
D
9. On the other hand, Ms. Ruchira Goel, learned counsel for the
State submitted that the G.O. itself has been wrongly struck down by the
High Court. It was contended that the High Court has completely misread
the G.O. dated 7.5.1999 as the posts have been reserved keeping in
view the requirement of the posts to be filled up by the candidate seeking
E appointment. It was pointed out that for the posts of Sweeper (Dry, Wet,
Cleaner & Related Workers) etc., reservation has been provided to deaf
and partially deaf candidates, whereas for the persons with locomotor
disability, reservation for the posts of Daftry, Attendant, Peon, Office
Boy etc. has been provided. Therefore, striking down of the G.O. dated
F 7.5.1999 was not tenable. Ms. Goel relies upon the principles of Order
XLI Rule 33 of the Code of Civil Procedure, 19083 to contend that the
ultimate order of the High Court can be maintained on other grounds
than what weighed with the High Court while dismissing the writ petition.
10. It was also contended that vide G.O. dated 8.12.2010, it has
G been decided that in future, no recruitment to any Class-IV posts (except
the lowest cadre of technical post) would be made and the arrangements
would have to be made by way of outsourcing only. Therefore, the High
Court was correct in law in not disturbing the selection process, as on

3
H For short, the ‘Code’
AJAY KUMAR PANDEY & ORS. v. STATE OF U.P. & ORS. 843
[HEMANT GUPTA, J.]

the date of the order, there could not be any appointment to the Class-IV A
posts.
11. The G.O. in question dated 7.5.1999 has to be examined in
view of Sections 32 and 33 of the Act. Such provisions read thus:
“32. Identification of posts which can be reserved for
persons with disabilities.—Appropriate Governments shall— B

(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 C
the developments in technology.
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 D
suffering from—
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy,
E
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 F
of this section.”
12. We have heard learned counsel for the parties and are of the
opinion that the High Court has completely misread Sections 32 and 33
of the Act.
13. Sections 32 and 33 came up for consideration before this Court G
in a judgment reported as Government of India through Secretary &
Anr. v. Ravi Prakash Gupta & Anr.4 wherein it has been held as under:

4
(2010) 7 SCC 626 H
844 SUPREME COURT REPORTS [2022] 6 S.C.R.

A “29. 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
B
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
C 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
D
years after which they would lapse. Since in the instant case such
a situation did not arise 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.”
(Emphasis Supplied)
E
14. The said judgment was considered by this Court in Union of
India & Anr. v. National Federation of the Blind & Ors.5 wherein it
was held as under:
“37. Admittedly, the Act is a social legislation enacted for the
F benefit of persons with disabilities and its provisions must be
interpreted in order to fulfil its objective. Besides, it is a settled
rule of interpretation that if the language of a statutory provision
is unambiguous, it has to be interpreted according to the plain
meaning of the said statutory provision. In the present case, the
plain and unambiguous meaning of Section 33 is that every
G appropriate Government has to appoint a minimum of 3%
vacancies in an establishment out of which 1% each shall be
reserved for persons suffering from blindness and low vision,
persons suffering from hearing impairment and persons suffering
from locomotor disability or cerebral palsy.
H 5
(2013) 10 SCC 772
AJAY KUMAR PANDEY & ORS. v. STATE OF U.P. & ORS. 845
[HEMANT GUPTA, J.]

38. To illustrate, if there are 100 vacancies of 100 posts in an A
establishment, the establishment concerned will have to reserve a
minimum of 3% for persons with disabilities out of which at least
1% has to be reserved separately for each of the following
disabilities : persons suffering from blindness or low vision, persons
suffering from hearing impairment and the persons suffering from
B
locomotor disability or cerebral palsy. Appointment of 1 blind
person against 1 vacancy reserved for him/her will be made
against a vacancy in an identified post for instance, the post
of peon, which is identified for him in Group D. Similarly,
one hearing impaired will be appointed against one reserved
vacancy for that category in the post of Store Attendant in C
Group D post. Likewise, one person suffering from locomotor
disability or cerebral palsy will be appointed against the post
of “Farash”, Group D post identified for that category of
disability. It was argued on behalf of the Union of India with
reference to the post of driver that since the said post is not suitable
D
to be manned by a person suffering from blindness, the above
interpretation of the section would be against the administrative
exigencies. Such an argument is wholly misconceived. A given
post may not be identified as suitable for one category of disability,
the same could be identified as suitable for another category or
categories of disability entitled to the benefit of reservation. In E
fact, the second part of the section has clarified this situation by
providing that the number of vacancies equivalent to 1% for each
of the aforementioned three categories will be filled up by the
respective category by using vacancies in identified posts for each
of them for the purposes of appointment.” (Emphasis Supplied)
F
15. A reading of the impugned judgment of the High Court shows
that 3% posts in each cadre dehors the identification of the posts are to
be reserved for persons with disability, with blindness or low vision, hearing
impairment and locomotor disability. We find that such view of the High
Court is not the correct enunciation of law. The 3% reservation is to be
in an establishment and not in all cadres of an establishment irrespective G
of the nature of job.
16. A reading of the G.O. dated 7.5.1999 shows that posts have
been identified to be filled up from physically handicapped category in
category C and D posts. Such identification of the posts in an establishment
H
846 SUPREME COURT REPORTS [2022] 6 S.C.R.

A is in terms of Section 32(a) of the Act. Although, such list is to be reviewed
every three years taking into consideration the development in technology,
however the said exercise appears to have not been undertaken. But
the identification of posts in terms of Section 32 of the Act has been
carried out in the G.O. dated 7.5.1999. After such identification, the
question of appointment in each establishment arises where the vacancies
B
not less than 3% are to be reserved for the candidates with blindness or
low vision, hearing impairment and locomotor disability. Such reservation
of posts under Section 33 of the Act is not for all categories of posts
irrespective of nature of work to be carried out. The 3% reservation has
to be provided in an establishment and not in every cadre. The State
C Government has taken a conscious decision to reserve certain posts for
hearing impaired candidates and not for the candidates with locomotor
disability.
17. We find that the G.O. dated 07.05.1999 could not be set aside
in exercise of the power of judicial review on the basis of cursory glance
D of the G.O. dated 07.05.1999. The identification of the posts which can
be filled up by candidates suffering from disabilities is the responsibility
of the appropriate Government under Section 32 of the Act, which is the
State Government in the present case. Once such exercise has been
carried out, the appropriate Government in terms of Section 33 of the
Act shall reserve 1% each for the visual disability, hearing impairment
E and locomotor disability. The identification of the posts and the category
of the disabled candidates who could be appointed against the posts
reserved is the power conferred on the appropriate Government. Such
exercise and the reservation of posts could not have been interfered
with without holding such reservation to be totally arbitrary, irrational or
F against the objectives sought to be achieved and on judicially recognised
principles.
18. We find that the order of the High Court striking the G.O. as a
whole is on the basis of surmises and conjectures, thus the said order
cannot be sustained in law. Since the posts of Safai-Karmis are not
G identified to be filled up from amongst the candidates having locomotor
disability, the appellant could not be appointed against such category of
post, even though they have appeared for cycling test or for interview.
The appellants were not eligible for the appointment against such posts
in terms of the advertisement. The G.O. dated 07.05.1999 is part of the
advertisement and therefore, the appellants cannot claim appointment
H
AJAY KUMAR PANDEY & ORS. v. STATE OF U.P. & ORS. 847
[HEMANT GUPTA, J.]

against the post reserved for disabled candidates only for the reason A
that they are locomotor disabled candidates when such post was not
reserved for the Safai-Karmis.
19. Consequently, the order of the High Court striking aside the
G.O. dated 7.5.1999 is set aside. Thus, we do not find any merit in the
present appeal. The appeal is disposed of accordingly. B

Bibhuti Bhushan Bose Appeal disposed of.

C

D

E

F

G

H