2020 (1) TMI 885 - HC - Indian Laws

High Court directs identification of suitable posts in IRS for visually impaired candidates & notional pay fixation.

DILEEP KUMAR SHUKLA Versus UNION OF INDIA & ORS.

The High Court set aside the Central Administrative Tribunal's decision and directed the Respondents to identify posts in the Indian Revenue Service ... Allocation of Petitioner either to the Indian Revenue Service (Income Tax), Group ‘A’ [‘IRS (IT)’] or to the Indian Revenue Service (Customs & Central Excise), Group ‘A’ [‘IRS (C&CE)’] - petitioner under the quota for the Physically Handicapped (‘PH’) category - HELD THAT:- The Court finds from the replies given to the Petitioner from time to time under the RTI, that there were indeed unfilled vacancies in the PH quota in both the IRS (IT) and the IRS (C&CE), and that these ought to have been carried forward for at least two years. The second fact that emerges is that the CAT proceeded on the erroneous premise that the Department of Revenue had been granted exemption from the applicability of Section 33 of the PWD Act in terms of the proviso thereto. Although the minutes of the meeting held at the Ministry of Social Justice and Empowerment on 23rd November 2007 noted that “considering the nature of jobs performed in IRS (IT) and IRS (C&CE), these services were not considered suitable for persons with visual disabilities”, the fact remains that there was no notification issued granting exemption to the Ministry of Revenue from the applicability of Section 33 of the PWD Act. At this juncture, it requires to be noted that Section 34 of the Rights of Persons with Disabilities Act, 2016 which has replaced the PWD Act is in pari materia Section 33 of the PWD Act. The Court would not in the context of failure by the Government to provide reservations for the PH category, be presented with a fait accompli. The impugned order of the CAT is set aside - Respondents will within a period of eight weeks from the date of receipt of a certified copy of this order, ascertain which posts in the IRS (IT) and IRS (C & CE) earmarked for PH category can be allocated for those with B/LV - petition disposed off. Issues Involved:1. Reservation for Physically Handicapped (PH) category in the Indian Revenue Service (IRS) (Income Tax) and IRS (Customs & Central Excise).2. Compliance with Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act).3. Legality of the Central Administrative Tribunal's (CAT) decision dismissing the Petitioner’s Original Application (O.A.) No. 2958/2013.4. Justification for non-allocation of IRS (IT) and IRS (C & CE) posts to visually impaired candidates.5. Impact of the Supreme Court decisions in Ravi Prakash Gupta and Union of India v. National Federation of the Blind on the case.Issue-wise Detailed Analysis:1. Reservation for PH Category in IRS (IT) and IRS (C & CE):The Petitioner, who secured a rank of 780 in the Civil Services Examination (CSE) 2011 and belongs to the low vision (LV) category, sought allocation to the IRS (IT) or IRS (C & CE). The CAT dismissed his application, noting that no reservations were indicated for the B/LV category in these services. The Petitioner argued that the Cadre Controlling Authority (CCA) had not sought exemption from reserving posts for the B/LV category, as mandated by Section 33 of the PWD Act.2. Compliance with Sections 32 and 33 of the PWD Act:Sections 32 and 33 of the PWD Act require identification and reservation of posts for persons with disabilities, including 1% each for blindness or low vision, hearing impairment, and locomotor disability or cerebral palsy. The Petitioner contended that the CCA of IRS (IT) and IRS (C & CE) did not obtain any exemption from the Central Government to exclude these services from such reservations.3. Legality of CAT's Decision:The CAT's decision was based on the assumption that the Department of Revenue had been exempted from allocating vacancies for the B/LV category, which was contradicted by a letter from the Ministry of Social Justice and Empowerment stating no such exemption was granted. The CAT also expressed concerns about judicial intervention destabilizing the allocation of services to candidates who had already completed their training.4. Justification for Non-allocation of IRS (IT) and IRS (C & CE) Posts:The Petitioner argued that the failure to reserve posts for the B/LV category in IRS (IT) and IRS (C & CE) was unjustified, especially given the backlog of vacancies for the PH category. The Respondents maintained that the Petitioner was allocated to the Indian Information Service (Junior Grade) based on his preferences and rank, and that IRS (IT) and IRS (C & CE) were not suitable for visually impaired persons.5. Impact of Supreme Court Decisions:The Supreme Court in Ravi Prakash Gupta held that the implementation of Section 33 of the PWD Act cannot be deferred indefinitely by bureaucratic inaction. The Court emphasized that the legislative intent was to ensure reservations for persons with disabilities, irrespective of the identification of posts. This decision, along with Union of India v. National Federation of the Blind, highlighted the obligation to reserve a minimum of 3% vacancies for persons with disabilities, including 1% for blindness or low vision.Judgment and Directions:The High Court set aside the CAT's order and directed the Respondents to:i) Ascertain which posts in IRS (IT) and IRS (C & CE) can be allocated to the B/LV category within eight weeks.ii) Examine whether the Petitioner can be accommodated in any such earmarked PH vacancies for B/LV and issue appropriate orders within a further eight weeks.iii) Ensure that the Petitioner, if appointed, will not receive arrears of pay but will have notional fixation of pay for seniority and promotions, dating back to his initial appointment in the IIS (JG) after qualifying in the CSE, 2011.The petition was disposed of in these terms.