ASHOK KUMAR GIRIversusGOVT. OF INDIA AND ORS.

                             [2016] 2 S.C.R. 960



A                          ASHOK KUMAR GIRi

                                      v.

                        GOVT. OF INDIA AND ORS.
                        (Civil Appeal No. 4476of2016)
B
                               APRIL 27, 2016
             [FAKKIR MOHAMED IBRAHIM KALIFULLA
                          AND S. A. BOBDE, JJ.l
C        Person with Disabilities. (Equal Opportunity. Protection of
  Rights and Full Protection) Act, 1995 - ss. 32, 33 - Reservation for
  differently abled persons - Computation of - Held: Reservation for
  differently abled persons would have to be computed on the basis
  of total vacancies of the cadre and not on the basis of the vacancies
D available in the identified post, namely, at the time of notification
  calling for applications to fill up the available vacant vacancies -
  Order passed by the Iligh Court set aside and matter remitled to
  back to the High Court to decide the writ petition afresh in light of
  the decision in *National Federation of the Blind and Others·s case.
E           *Union of India and Another v. National Federation of
            the Blind and Others 2013 (9) SCR 1023:(2013) 10
            sec 772 - relied on.
                            Ca~e Law Reference

            2013 (9) SCR 1023        relied on       Para 5
F
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 44 76 of
    2016.
          From the Judgment and Order dated 20.10.2014 of the Division
    Bench of the High Court of Judicature at Patna in L. P.A. No. 303 of
G   2014.
            Ms. Rani Chhabra, Ms. Priyanka Sony, Ad vs. for the Appellant.
          Neeraj Kishan Kaul, ASG, Ms. Sunita Rani Singh, Sanyat Lodha,
    Sarfrez Ahmed, D. S. Mahra, Ad vs. for the Respondents.
H
                                      960
     ASHOK KUMAR GIRi v. GOVT. OF INDIA AND ORS.                                    961



      The following Order of the Court was delivered                                 A
                                ORDER
      Leave granted.
      Heard learned counsel for the appellant and Mr. N.K. Kaul, learned
Additional Solicitor General oflndia for the respondents.                            B
       By the impugned order, the Division Bench of the High Court of
Patna, while taking note of the fact, namely, the number of vacancies
which were sought to be filled up at the instance of Respondent Nos.2
and 3, took the view that based on lhe vacancies notified when the 3%
reservation provided for under the Persons with Disabilities (Equal
Opportunity, Protection ofRights and Full Protection)Act, 1995, since it
                                                                                     c
worked out to 0.27 post there was no scope to reserve any post under
the said category. With that view, the Division Bench declined to grant
any relief to the appellant to claim reservation as a disabled person falling
under the definition of the said Act. At the time, when this special leave
petition was moved before us, taking note of the legal position, namely,             D
3% reservation for the disabled persons can only be at the first instance
 ascertained based on the cadre strength and not based on the vacancies,
 while issuing notice, we directed the parties to examine the said legal
 position. In fact, subsequently, Mr. Kaul, himself, when he appeared on
 16.12.2015, came forward to examine the legal position in the light of
                                                                                      E
 Three-Judge Bench decision of this Court in Union ofJndia and Another
 v. Nalional Federation of the Blind and Others, reported in (2013)
 10 sec 772.
       Today, when this appeal was heard, the learned Additional Solicitor
 General fairly pointed out the ratio laid down by this Court as set out in
                                                                                      F
 paragraph 30, which reads as under:-
        "30. The question for determination raised in this case is whether
        the reservation provided for the disabled persons under Section
        33 of the Act is dependent upon the identification of posts as
        stipulated by Section 32. In Ravi Prakash case, the Government                G
        of India sought to contend that since they have conducted the
        exercise of identification of posts in civil services in terms of Section
        32 only in the year 2005, the reservation has to be computed and
         appHed only with reference to the vacancies filled up from 2005
         onwards and not from 1996 when the Act came into force. This
                                                                                      H
962      SUPREME COURT REPORTS                          [2016] 2 S.C.R.



A     Court, after examining the inter-dependence of Sections 32 and
      33 viz., .i.dentification of posts and the scheme of reservation,
      rejected this contention and held as follows:-
         "25 .... The submission made on behalf of the Union of India
         regarding the implementation of the provisions of Section J3
 B       of the Disabilities Act, 1995, only after identification of posts
         suitable for such appointment, under Section 32 thereof, runs
         counter to the legislative intent with which the Act was enacted.
         To accept such a submission would amount to accepting a
         situation where the provisions of Section 33 of the aforesaid
 c       Act could be kept deferred indefinitely by bureaucratic inaction.
         Such a stand taken by the petitioners before the High Cou1t
         was rightly rejected. Accordingly, the submission made on behalf
         of the Union of India that identification of Groups A and B
         posts in the I.A.S. was undertaken after the year 2005 is not
 D       of much substance.
         26. As has been pointed out by the High Court, neither Section
         32 nor Section 33 of the aforesaid Act makes any distinction
         with regard to Groups A, B, C and D posts. They only speak
         of identification and reservation of posts for people with
         disabilities, though the proviso to Section 33 does empower the
 E
         appropriate Government to exempt any establishment from the
         provisions of the said Section, having regard to the type of
         work carried on in any department or establishment. No such
         exemption has been pleaded or brought to our notice on behalf
         of the petitioners.
 F       27. It is only logical that, as provided in Section 32 of the
         aforesaid Act, posts have to be identified for reservation for
         the purpose of Section 33, but such identification was meant to
         be simultaneously undertaken with the coming into operation
         of the Act, to give effect to the provisions of Section 33. The
 G       legislature never intended the provisions of Section 32 of the
         Act to be used as a tool to deny the benefits of Section 33 to
         these categories of disabled persons indicated therein. Such a
         submission strikes at the foundation of the provisions relating
         to the duty cast upon the appropriate Government to make
         appointments in every establishment.
 H
    -ASHOK KUMAR GIRI v, GOVT OF INDIA AND ORS,                                     963



                xxxxxx                                                              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 prnvisions of Section
         33 are dependent on Section 32 of the Act, as submitted by the              B
         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                   c
         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               D
          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 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,                                E

                 Xxxxxxxxx
         31, 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
                                                                                      F
         vacated, The petitioners are given eight weeks' time from today
         to give effect to the directions of the High Court."
       Having regard to the said authoritative pronouncement by this
Court that 3% reservation for differently abled persons will have to be
computed on the basis of total vacancies of the cadre and not on the
                                                                                      G
basis of the vacancies available in the identified post, namely, at the time
of notification calling for applications to fill up the available vacant
vacancies, it is imperative for the High Court to examine the said position
by applying the various deliberations and reasoning drawn in the above
decision of this Court and also by calling upon the parties, in particular,
                                                                                      H
964               SUPREME COURT REPORTS                          [2016] 2 S.C.R.



A     the respondents herein to furnish the details as regards the cadre strength
      and the available vacancies, if any, to be provided for in the respective
      reserved posts. In the light of above judgment, based on such additional
      information to be furnished by the respondents as well as any information
      to be furnished on behalf of the appellant, it will be appropriate for the
 B    Division Bench to come to a definite conclusion, whether or not the
      appellant will be entitled for any relief to be granted in the writ petition.
             Therefore, while setting aside the impugned judgment, remit the
      case back to the High Court for deciding the writ petition afresh, in the
      light of the judgment of this Court referred to above.
 C          With the above observations and directions, the appeal stands
      disposed of.
      NidhiJain                                                 Appeal disposed of.