Supreme Court sets aside high court order giving relief to persons with locomotor disability

ON August 1, a division bench comprising Justices Hemant Gupta and Vikram Nath set aside the Allahabad High Court's 2019 order which had found the Uttar Pradesh government's 1999 order disqualifying persons with locomotor disability from applying for the posts of sweepers as unconstitutional.

According to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, "locomotor disability" means the disability of the bones, joints or muscles, leading to substantial restriction of the movement of the limbs, or any form of cerebral palsy.

Despite the Medical Council of India informing the Delhi High Court that persons with 80 per cent locomotor disability can apply for postgraduate medical courses, the Supreme Court bench, on Monday, did not find anything wrong with the 1999 policy, being followed by the Uttar Pradesh government, which made persons with locomotor disability ineligible for certain jobs under the state.

On June 16, 2008, an advertisement inviting applications for the posts of safai karmis with the state government in District Mau, was published. Out of the 1,651 posts, 346 posts were reserved for Scheduled Castes, 34 for Scheduled Tribes, and 445 for Other Backward Classes candidates. It further stated that reservations would also be available for women, disabled candidates, freedom fighters, and ex-servicemen as per government decisions, though the number of such reserved posts was not specified.

In respect of disabled candidates, the State Government had circulated a Government Order ('GO') dated May 7, 1999, identifying the posts which can be manned by such suitable disabled candidates under the 1995 Act. The GO states that the posts of Sweeper Dry, Sweeper Wet, Sweeper Sewer, Sweeper Cleaner and Related Workers could be filled up by candidates who are deaf or partially deaf. Whereas, the posts of Daftry, Attendant, Peon, Office Boy, Dusting Man Farash, and Process Server, among others, could be filled up by candidates with locomotor disabilities.

The appellants, being persons with locomotor disability, submitted their application forms with locomotor disability certificates to the effect. They also participated in the cycle test and appeared for the interview but were not appointed, due to which they filed a writ petition before the Allahabad High Court in 2018.

The high court, via an order dated February 15, 2019, noted that under the 1995 Act, there are other forms of disabilities in addition to hearing impairment. It held that all categories of disabled persons were entitled to avail reservation up to three per cent, of which one per cent each is available for disabled candidates suffering from (i) blindness or low vision, (ii) hearing impairment, and (iii) locomotor disability or cerebral palsy. Hence, the high court found the GO to be ultra-vires to the Constitution. However, the safai-karmi selection done pursuant to the 2008 advertisement was not interfered with by the high court.

The appellants challenged this, contending that since the GO dated May 7, 1999, has been struck down, they were entitled to be appointed in the category of persons with locomotor disabilities.

High court's verdict set aside

The Supreme Court observed that the high court has completely misread Sections 32 and 33 of the Act. The Court placed reliance on the cases of Government of India through Secretary & Anr. versus Ravi Prakash Gupta & Anr. (2010) and Union of India & Anr. versus National Federation of the Blind & Ors. (2013), and observed that the high court's observation that three per cent of posts in each cadre de hors the identification of the posts is to be reserved for persons with disabilities, blindness or low vision, hearing impairment, and locomotor disability, is an incorrect enunciation of law.

The Supreme Court observed that the three per cent reservation is to be in an establishment and not in all cadres of an establishment , irrespective of the nature of the job.

The court also observed that the identification of posts in terms of section 32 had been carried out in the GO dated May 7, 1999, even though the list which had to be reviewed every three years was not revised. After such identification, the question of appointment in each establishment arises, where a minimum of three per cent of the vacancies are to be reserved for certain candidates with disabilities, the bench clarified.

Such reservation of posts under section 33 is not for all categories of posts, irrespective of the nature of work to be carried out. The three per cent reservation has to be provided in an establishment and not in every cadre. Additionally, the state government has taken a conscious decision to reserve certain posts for hearing impaired candidates, and not for candidates with locomotor disabilities, the bench further pointed out.

Conclusively, the court held that the impugned GO could not be set aside in the exercise of the power of judicial review based on a cursory glance. Additionally, the identification of the posts which can be filled up by candidates suffering from disabilities is the responsibility and power of the appropriate government under section 32, and once such exercise has been carried out, the government, in terms of section 33, shall reserve one per cent each for the visual disability, hearing impairment and locomotor disability.

Such power of the government cannot be interfered with unless the reservation is arbitrary, irrational or against the objectives sought to be achieved, and on judicially recognized principles, the bench concluded.

Consequently, the court set aside the impugned order of the high court, stating that it was not sustained in law. The court also held that since the posts of safai-karmis are not identified to be filled up from amongst the candidates having a locomotor disability, the appellants could not be appointed against such category of posts, even though they had appeared for cycling test and interview. Thus, the bench found that the appellants were not eligible for the appointment against such posts in terms of the advertisement, and disposed of their appeals.

Click here to view the Supreme Court's full judgment.