VIVEK SINGHversusSTATE OF U.P. & ANR.

                             [2016] 4 S.C.R. 276


A                              VIVEK SINGH
                                      v.
                          STATE OF U.P. & ANR.
                       (CivilAppealNo. 10381 of2014)
                             AUGUST 26, 2016
B
              [S.A. BOBDE AND ASHOK BHUSHAN, JJ.]
          Service Law - Selection under physically handicapped
    category - Backlog quota - Appellant applied under the physically
    handicapped category, in Combined State/Upper Subordinate Service
    Examination 2001 - His first preference was for the post of Deputy
c   Collector and second preference was for the post of Trade Tax Officer
    - Appellant was duly selected - U.P. Public Service Commission
    appointed him as a Trade Tax Officer - Appellant filed writ petition
    seeking post Qf Deputy Collector - Meanwhile in 2011, State
    Government issued requisition for appointment on post of Deputy
D   Collector to fill backlog quota for physically handicapped category
    for the year 2001-2002 - Relying on the State Governments
    requisition, appellant modified his prayer - High Court declined relief
    on ground that entire seniority list will get disturbed- Held: Direction
    to accommodate the appellant in selection year 2001-2002 would
    create difficulties in the seniority of those who have been appointed
E
    every year since then -Appeal accordingly dismissed - Persons with
    Disabilities (Equal Opportunity, Protection of Rights and Full
    Participation) Act, 1995.
          Dismissing the appeal, the Court
          HELD: 1. Direction to accommodate the appellant in the
F   selection year 2001-2002 would create difficulties in the seniority
    of those who have been appointed every year since then, as
    observed earlier some of the Deputy Collectors who have been
    appointed may have got promoted. [Para 12] [280-G]
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10381
G   of2014.
           From the Judgment and Order dated I 0.05.2013 ofthe High Court
    ofJudicature, at Allahabad in Civil Misc. Writ Petition No. 8334 of2004.
          Raju Ramchandran, Sr.Adv., RajivTyagi, Dwakar Kumar, Mythili
    Vijay Kumar Th all am, Vikram Aditya Narayan,Advs. for the Appellant.
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                                      276
            VIVEK SINGH v. STATE OF U.P. & ANR.                                277



    P. N. Misra, Sr. Adv., Ms. Archana Singh, Abhisth Kumar, Shrish            A
Kumar Misra, Ad vs. for the Respondents.
      The Judgment of the Court was delivered by
       S. A. BOBDE, J. I. On 29.01.2001, the U.P. Public Service
Commission invited applications for filling up 800 posts through the
Combined State/Upper Subordinate Service Examination 2001 . Amongst             B
others the posts to be filled up were Deputy Collector-9 posts, Deputy
S.P. - 67 posts and Trade Tax Officer- 12 posts.
      2. The appellant applied for selection under the physically
handicapped category along with the necessary certificate. His first
preference was for the post of Deputy Collector and second preference           c
was for the post of Trade Tax Officer. The appellant was duly selected
and placed at Sl.No.38 in the overall merit list. The U.P. Public Service
Commission recommended the appellant's appointment as a Trade Tax
Officer under the quota reserved for physically handicapped candidates.
      3. The appellant filed a writ petition before the Allahabad High Court    D
praying for appointment on the post of Deputy Collector. However, pending
the writ petition, he joined as a Trade Tax Officer in November, 2004.
        4. On26.11.2010, in National Federation of the Blind, U.P. Branch
and others vs. State ofUttar Pradesh & others', the Allahabad High Court
passed an interim order directing the State Governmentto henceforth not         E
fill up any vacancy unless a reservation of3% was provided to physically
handicapped candidates from the initial stage, i.e., from the stage of
advertisement itself. The relevant portion of the order reads as follows:-
       "As an interim measure, we fi1rther direct that henceforth, the
       State Government or its authorities shall not fill up any vacancy        F
       falling within the domain of the State Government or its
       instrumentalities unless from the initial stage i.e. from the stage
       of advertisement of posts for recruitment to fill up the posts,
       reservation of 3% under the Act is earmarked and
       simultaneously filled up from open recruitment process. The
       State shall ensure that not only the quota of blind persons but          G
       also the quota of other categories under the Act shall be filed
       up si111ulta11eously while making recruitment of various posts
       falling under the domain of the State Government and its
       ins trumen ta Iities.
'Writ Petition No.6047 (MB) of2009                                              H
278              SUPREME COURT REPORTS                          [2016] 4 S.C.R.


A            Accordingly, the Government of UP. shall issue a circular
             within one week from today. We may caution the State
             Government that non-compliance of the order passed by this
             Court today shall amount to contempt of this Court and this
             Court may proceed suo moto against those who are at fault in
             not filling the vacancies of blind and disabled persons under
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             the Act."
      This was in view of the Persons with Disabilities (Equal Opportunity,
      Protection of Rights and Full Participation) Act, 1995 (hereinafter referred
      to as the' Act').
             5. The High Court cautioned the State Government that non-
c     compliance ofthe Order would amount to contempt of Court. In pursuance
      ofthis Order, the State Government carried out the following exercise:
               On 13.1.2011 in pursuance of the aforesaid exercise, the State
      Government issued a requisition to the Public Service Commission for
      selection ofsuitable candidates belonging to the physically handicapped
 D    category for appointment on 5 posts of Deputy Collector by a special
      recruitment drive to fil I up the backlog quota. In the said letter, I post of
      Deputy Collector for the year2001-2002 i.e. the year in which the appellant
      had appeared and was declared successful was also directed to be filled
      up.
 E           6. In the pending writ petition, the appellant modified his prayerand
      claimed that since 1 out of the 5 posts of Deputy Collector was to be filled
      up underthe special recruitment drive for physically handicapped category,
      included the post for the year 2001-2002 in which the appel Iant appeared
      and was selected, he is entitled to be selected therein.
             7. The High Court accepted that the post of Deputy Collector for
 F    selection in the year 200 l-2002 was amenable to reservation for physically
      handicapped category under the horizontal quotaof3%. The High Court
      noted the contention of the State that for the year 2001-2002, I post of
      Deputy Collector for physically handicapped category was identified as
      backlog; that however does not mean that the appellant is entitled to be
 G    appointed on that post. The High Court reiterated the settled position of
       law that reservation for the physically handicapped category was to be
      provided as a matter of law and that such reservation was to be made on
      the basis of total sanctioned strength and not on the basis of available
      vacancy ofa recruitment year. However, the Court declined relief to the
      appellant on the ground that ifthe appellant is adjusted against the sole
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            VIVEK SINGH v. STATE OF U.P. & ANR.                                 279
                      rs. A. BOBDE, J.l
vacancy forthe year 2001-2002, the entire seniority list will get disturbed.    A
The High Court proceeded to hold that in the year 2001-2002 all the 9
posts for which requisition was made were filled up. However, the High
Court also noted that in the year2010 it was found that 1 post out of9 could
have been reserved for physically handicapped candidates. The appellant
could not be given appointment in that recruitment year since the posts
                                                                                 B
were filled up. In particular, theHigh Court observed that many recruitments
have taken place between 2001-2002 till the date of the decision of the
High Courton I 0.05.2013 and ifthe appellant is given appointment with
retrospective effect from 2001-2002, the entire seniority position of the
recruitment of that year as well as the subsequent years will get disturbed.
The High Court noted that the gap between the recruitment year and the           c
year in which the appointment was claimed was more than 10 years and
since then recruitments have taken place almost every year.
       8. Before us, Mr. Raju Ramchandran, learned senior counsel for
the appel !ant argued that the High Court has accepted the legal entitlement
of the appellant and yet did not grant any relief. It was submitted that the     D
appellant is entitled for relief in view of the clear requirement of the law.
On the other hand, it was submitted on behalf of the State that the State
carried out an exercise in pursuance of the interim Order of the High
CoUli in the caseofNational Federation ofthe Blind, U.P Branch (supra)
where the CoUli directed the State Government not to fi 11 up any vacancy
unless from the stage of the advertisement itself, reservation of 3% is          E
earmarked for the physically handicapped candidates. The State further
carried out an exercise to determine the roster points on which such
reservation would be available as follows:-
  Exam/        Total    Total no.      Roster    Category        Remarks
  Selection requisi offilled           point for
  year         tion     vacancies Physical
                                                                                 F
               vacanc                  Handica-
               ies                     nned
  1997-98 20            20             0                     The
   1998-99 20           40             01        P.B.        requisition for
  1999-00 10            50             -                     more than 33
                                                                                 G
  2000-01 09            59             -                     vacancies had
  2001-02 15            74             01        P.O.        not been sent
  2002-03 --            93             -                     in any
  2003-04 19            93             -                     Selection Year.
  (Sp!.                                                      By  clubbing
  Apptt.)                                                                        H
280                SUPREME COURT REPORTS                          [2016] 4 S.C.R.


A      2004-05     --      93      -                  all the requisitioned posts on
       2005-06      14     107     01    Penmnent     the basis ofroster the
                                         disabilitv   vacancies had been identified
       2006-07     08       ]]5    -                  and accordingly 5 vacancies
       2007-08     22       137    01    P.B.         are calculated for filling up by
       2008-09     14       151    -                  backlog for various categories
8      2009-10     32       183    01    P.O.         of physical handicapped
       Total:      183      183    05                 candidates.

            9. It was pointed out on behalf of the State that for the year 2000-
      200 l in which 9 vacancies for Deputy Collector arose, there was no roster
      point forthe persons with disability. Such a point is available in the next
c     year i.e. 2001-2002. Therefore, in any case the appellant could not have
      been considered for the 9 vacancies which arose in the year 2000-200 l. It
      is pointed out on behalf ofthe State that as a result of the aforesaid exercise,
      5 vacancies are calculated for filling up the backlog and have been filled
      up in accordance with the roster.
D             l 0. Mr. Ramchandran contested this position by submitting that the
      exercise has been carried out by the State from 1997-1998 as is apparent
      from the chart. According to Mr. Ramchandran this could have been
      carried out from 1995 in which case according to his calculation the roster
      point could have been shifted to accommodate the appellant. lt is not
E     possible to agree with this point since the exercise was undertaken in
      pursuance of the Order of the High Court and the year 1997-1998 was
      taken as the starting point since that is the first year after the Act came
      into force on 01.01.1996.
              11. We are satisfied that the reservation which must be provided
      for, as a matter of law has been duly provided by the State which has in
 F    fact determined the roster point which was calculated for the number of
      posts that ought to have been reserved from the year 1997-1998 to 2009-
      2010 and have accordingly made appointments. It is another matter that
      the appellant has not been appointed thereto.
              12. In any case, we agree with the observation of the High Court
G     that a direction to accommodate the appellant in the selection year 2001-
      2002 would create difficulties in the seniority of those who have been
      appointed every year since then, as observed earlier some of the Deputy
      Collectors who have been appointed may have got promoted.
             13. Lastly, we see no merit in the appeal and it is hereby dismissed.
      Ankit Gyan                                                     Appeal dismissed.
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