Supreme Court Slams Centre For Not Filling PwD Vacancies, Directs Appointment Of Visually Impaired Candidate Who Cleared CSE 2008

The Supreme Court on Monday(July 8) criticized the Centre for making a 100 per cent visually impaired candidate who cleared the Civil Services Examination (CSE) “run pillar to post” for his appointment despite a large number of backlog vacancies for persons with disabilities.

A bench of Justice Abhay S Oka and Justice Pankaj Mithal said that there is a “gross default” on part of the Union of India in implementing the Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act, 1995 (PWD Act).

“the affidavits filed by the appellant-Union of India bring a sorry state of affairs on record. The appellant failed to implement the provisions of the PWD Act, 1995...Respondent no.1 has been made to run from pillar to post to get an appointment, though there is a large backlog of vacancies in various PWD categories”, the court observed.

Pankaj Srivastava, who is 100 percent visually impaired, appeared in the Civil Services Examination (CSE) in 2008, listing preferences for the Indian Administrative Services (IAS), Indian Revenue Services-Income Tax (IRS (IT)), Indian Railway Personnel Service (IRPS), and Indian Revenue Service-Customs and Excise (IRS (C&E)).

Despite passing the written and interview stages, he was not appointed, leading him to file an Original Application before the Central Administrative Tribunal (CAT), New Delhi. His primary argument was that the backlog vacancies under the PWD Act were not filled.

On October 8, 2010, the CAT directed the Union Public Service Commission (UPSC) and the Department of Personnel and Training (DoPT) to calculate backlog vacancies and consider him for service allocation within six months. On September 9, 2011, the UPSC informed Srivastava that he was not included in the merit list within the available vacancies for the PH-2 (Visually Impaired) category, prompting him to file another application.

On May 30, 2012, CAT ordered UPSC to adjust candidates selected on merit in the unreserved/general category and appoint visually impaired candidates in the reserved category. On August 30, 2012, UPSC again informed Srivastava that he was not qualified for the PH-2 (VI) quota.

The Union of India challenged CAT's May 30, 2012, order in the Delhi High Court, which dismissed the writ petition on October 11, 2013. Consequently, it filed the present appeal before the Supreme Court.

On August 31, 2023, the Supreme Court noted that the Union of India had not implemented reservations under the PWD Act, 1995, in civil services from 1996 to 2009, resulting in multiple litigations by disabled individuals. The Union's affidavit dated April 29, 2022 revealed 41 backlog vacancies from 1996 to 2009, with 5 for VI candidates. The Union claimed IRS (C&CE) and IRS (IT) categories were excluded from VI reservations under Section 33 of the 1995 Act, but no notification to this effect was produced.

The court directed the Union to redo the exercise of identifying backlog vacancies for VI candidates, noting the potential for at least 17 such vacancies if IRS (C&CE) and IRS (IT) were included. The court also directed consideration of vacancy interchange under Section 36 of the 1995 Act, given the prolonged failure to implement reservations.

The Union of India, in an affidavit dated January 9, 2024, reported compliance with the court's order but claimed that Srivastava could not be accommodated based on the new calculations.

The court noted that Srivastava ranked 11th among PH-2 (VI) candidates after the last recommended candidate. The Union's stand, claiming IRS (IT) and IRS (C&E) vacancies were exempt from VI reservations since 2007, lacked basis in an exemption notification under Section 33, the court reiterated.

In the affidavit dated January 9, 2024, the Union stated that there are total 75 vacancies for PWD candidates in IRS (IT). The court opined that the respondent's case could have been considered by applying interchange within categories as per Section 36 of the PWD Act, 1995.

“Unfortunately, in this case, at all stages, the appellant has taken a stand which defeats the very object of enacting laws for the benefit of persons with disability. If the appellant had implemented the PWD Act,1995, in its true letter and spirit, respondent no.1 would not have been forced to run from pillar to post to get justice”, the court said.

The court issued the following directions under Article 142 of the Constitution:

1. Srivastava and the other ten candidates above him in the merit list of CSE-2008 shall be considered for appointment against the backlog vacancies of PWD candidates in IRS (IT) or other services/branches.

2. Appointments must be made within three months, without arrears of salary or seniority benefits.

3. For retirement benefits, their service shall be counted from the date of appointment of the last VI candidate in CSE-2008.

4. These directions are issued as a one-time measure and shall not serve as a precedent.

Case no. – Civil Appeal No. 3303 of 2015

Case Title – Union of India Pankaj Kumar Srivastava & Anr.

Citation : 2024 LiveLaw (SC) 444