AJAY KUMAR PANDEY & ORS. versus STATE OF U.P. & ORS.

Citation: [2022] 6 S.C.R. 836 · Decided: 01-08-2022 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Disposed off

Judgment (excerpt)

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AJAY KUMAR PANDEY & ORS.
v.
STATE OF U.P. & ORS.
(Civil Appeal No. 4811 of 2022)
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 –
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-
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
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
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 –
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.
[2022] 6 S.C.R. 836
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Disposing of the appeal, the Court
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]
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
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
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
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
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
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
AJAY KUMAR PANDEY & ORS. v. STATE OF U.P. & ORS.
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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. [Par

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