Rajasthan High Court, Jodhpur & Anr. v. Neetu Harsh & Anr.
A.S. BOPANNA,J.
1. Leave granted.
2. The appellants herein were the respondent Nos. 2 and 3 in the
writ petition bearing DBCWP No.692 of 2017 which was considered
and disposed of by the High Court of Judicature for Rajasthan at Jodhpur.
Through the order dated 04.05.2017 the writ petition was allowed and
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the appellants herein were directed to consider the candidature of the
private respondent herein for appointment on the post of Civil Judge-
cum-Judicial Magistrate in the Civil Judge Cadre aga inst the two
vacancies reserved for disabled candidates in the Rajasthan Judicial
Service Examination, 2016 and provide appointment as per merit of said
category, if she is otherwise eligible. The said order and direction of the
High Court is assailed herein primarily on the contention that the private
respondent herein had not applied against the vacanciesadvertis ed for
the physically challenged category but had applied as a General Category
candidate and as per the merit list she was not entitled to be appointed
as there were more meritorious candidates in the General Category and
the appointment having been made, the process has been completed.
3. The brief facts are that the appellants herein had issued a
Notification calling for applications for recruitment to the post of Civil
Judge-cum-Judicial Magistrate in the Civil Judge Cadre for 72 posts.
Among the same, two posts were kept reserved for pers ons with
disabilities. The private respondent herein had responded to the said
Notification butfiled the application indicating her category as “General”
and in the column provided for indication of the claim under the Differently
Abled Category had mentioned “No”. Hence, for all purposes pri vate
respondent herein was considered as a General category candidate and
had accordingly appeared for the preliminary examination. On being
declared successful she had appeared for the main examinati on and
thereafter in the interview also as General category ca ndidate without
reliance being placed on the disability certificate. The result was declared
on 15.11.2016. In the said list the marks obtained by all the candidates
were disclosed. The petitioner had obtained 136 marks and she was
placed at Serial No.137. As against the two vacancies for the differently
abled persons, one of the applicants who had obtained 138 marks was at
Serial No.57. It is subsequent thereto the private respondent made a
representation dated 28.11.2016 with a request to consider her candidature
under the category for Differently Abled persons as visuall y impaired
and to provide the appointment. The said representation be ing taken
note, the private respondent was informed that her candidature under
the category of Differently Abled persons cannot be accepted . It is in
that view the private respondent claiming to be aggrieved filed the writ
petition seeking direction for consideration of her request. While seeking
consideration under the Differently Abled category the claim is that the
RAJASTHAN HIGH COURT, JODHPUR & ANR. v. NEETU
HARSH & ANR. [A.S. BOPANNA,J.]
private respondent is having 80% disability as indicated in the certificate
dated 05.07.2010 issued by the competent doctor.
4. The High Court while taking note of the contention, though had
passed an elaborate order the main consideration appears to be that
though two vacancies were kept reserved for Differently Abled persons,
only one vacancy is filled in by way of providing appointment t o the
candidate named Ms. Renu Motwani at Serial No.57. In that rega rd,
though there is no definite material on record the High Cour t has also
observed that in the earlier examination for the same post he ld in the
year 2013 the private respondent herein was allowed to appear in the
physically handicapped category because she was having 80% disability.
In that view, though it is not in dispute that the private respondent had
indicated her category as “General” in the application, the Hig h Court
was of the view that even though a mistake was committed by the
candidate, the representation submitted by her subsequently ou ght to
have been considered sympathetically and in this regard it was observed
that the object of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 (hereinafter referred
to as the “PWD Act”) should have been kept in view. In that regard the
position of law relating to the consideration under the said Act was taken
note and the provisions contained therein not to fill up the vacancies by
any other category but to carry forward the same was also taken into
consideration.In that background the consideration required herein is as
to whether the High Court was justified in its approach in applying the
proposition of providing opportunity toDifferently Abled Per sonsas
provided under PWD Act, notwithstanding the fact that the issue presently
related to the appointment of the Judicial Officer in the backdrop of the
provisions contained in the Rajasthan Judicial Service Rules governing
the same and the vacancy is filled up. Further, the issue also is as to
whether the direction is justified when no application was filed seeking
benefit of the reserved category.
5. We have heard Ms. Meenakshi Arora, senior advocate for the
appellants, Mr. PallavShishodia, senior advocate fo r the private
respondent and perused the appeal papers.
6. The Notification dated 12.03.2016 issued by the appellants herein
inviting online application in the prescribed format for the competitive
exam for the direct recruitment to Civil Judge Cadre, 2016 rel ating to
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the reservation and the procedure for consideration of Differently Abled
Persons reads as hereunder:
Total
No.
of
Posts
Year Reserved Persons with
disabilities (Differently
abled)
70 Current
Vacancies
37 out
of
which
11
posts
reserved
for
woman
11 out
of
which 3
posts
reserved
for
women
8 out of
which 2
posts
reserved
for
woman
14 out
of
which 4
posts
reserved
for
woman
Out of 70
vacancies, 2
posts
reserved for
persons
with
disabilities
2 Backlog - - 2
(Backlog)
- -
“3. Regarding the reservation for disabled persons:
A. According to Rajasthan persons with Disabilities ( Equal
Opportunities, Protection of Rights and Full Participation) Rules,
2011, aforesaid posts shown to have been reserved for disable d
persons are reserved for applicants having Locomotor Disability
and Cerebral Palsy (L.D & C.P) and visual impaired. Aforesaid
reserved posts have been reserved for applicants having under
mentioned disabilities.
Locomotor Disability And Cerebral Palsy (L.D. & C.P)
O.L. – One leg affected (R or L)
B.L. – Both legs affected (Mobility not to be restricted)
O.A. – One Arm affected (R or L)
Visual Impaired (Blind & Low Vision)
B– Blind (Mobility not to be restricted)
LV– Low Vision (Mobility not to be restricted)”
“5. In case of non-availability of fit and suitable candidate for the
posts reserved for women and disabled candidates, these posts
RAJASTHAN HIGH COURT, JODHPUR & ANR. v. NEETU
HARSH & ANR. [A.S. BOPANNA,J.]
shall be filled as per the procedure and manner prescribe d in
Rajasthan Judicial Services Rules, 2010 (as amended).
6. A married woman candidate in order to receive benefit o f
reserved category shall have to present caste certificate (S.C./
S.T./O.B.C.) issued on the basis of the name, place of residence
and income of her father.”
“5. Exam fee :
Applicant shall have to pay exam fee in accordance with his/
her category.
A. Exam fee for the candidates belonging to general category,
creamy layer from backward class/special backward class /applicants
from other States shall be Rs.250/-.
B. Examination fee for the candidates of non-creamylayer from
other backward class/special backward class shall be Rs .150/-.
C. Examination fee of Candidates belonging to scheduled caste/
scheduled tribe of Rajasthan and all eligible disabled applicants shall be
Rs.50/-.”
7. In response to the above said Notification the private respondent
submitted her application and in Column 2.4 –‘Category’ it was indicated
as “General”, in Column 3.1 – ‘Persons with Disability’ – it was indicated
as “No”. Further in the declaration it is stated that the private respondent
has carefully read the terms and conditions of the Notification, instructions
and relevant rules before filling up the application form online and to
abide by them. It is also declared that the informations made ar e true,
complete and correct. In the Column for payment of the application fee
the sum of Rs.250/- prescribed as the fee for General Category Candidate
along with the commission charges of Rs.10/-, in all amounting to Rs.260/
- is paid. Pursuant to the application being in order the admission card
was generated providing the Roll No.5046 and the category was indicated
therein as “General”. It is on the said basis the private respondent had
appeared for the preliminary examination, main examination and the
interview. Based on the same the statement of marks of all the candidates
in the order of merit was published on 15.11.2016. It is only thereafter
the private respondent made a representation dated 28.11.2016 wherein
she claims that she is visually impaired more than 80% and the Medical
Board issued the disability certificate dated 05.07.2010. It is further
837
indicated in the representation that she hadinadvertently not mentioned
the physically handicapped category in the application form. Sh e has
also stated that during the previous year she had appeared as a candidate
under the category of Persons with Disabilities and there fore she be
considered against the other vacant post.
8. The learned senior counsel for the appellants has contended
that the private respondent did not make a claim under the quota for the
category of Differently Abled Persons in the application and the claim
presently made is merely because only one of the posts was filled up by
a Differently Abled Person with locomotor disability and the other post
if there was a claim would have been for visually impaired and as such
the private respondent is claiming visual impairment at this stage. As per
the Rajasthan Judicial Service Rules, 2010 the unfilled seat will have to
be filled up in accordance with the normal procedure and, such vacancy
will not be carried forward to the subsequent year. In that circumstance,
it is contended that out of the vacancies which was reserved for
Differently Abled Persons, the second vacancy which was available to
a visually impaired person has been filled in by a more meritorious
candidate from the General category in the absence of a visually impaired
candidate, which is the normal procedure referred to in the Rules.
9. The learned senior counsel for the private respondent on the
other hand has made a detailed reference to the provisions of the PWD
Act, 1995,more particularly to the definitions as contained in Sections
2(b) to (e), (o), (p), (t) as also to Sections 18 to 32, 33 and 36 as contained
therein.
10. However, we do not find it necessary to advert more in detail
to the said provisions since in the instant case it is not as if no reservation
for Differently Abled Persons was made in the Recruitment Notification
concerned nor is it a case where the Recruitment Notification is under
challenge on the ground of not providing reservation. Further the decisions
relied upon by the learned senior counsel for the private respondent in
the case of Governmentof India through Secretary &Anr. vs. Rani
Prakash Gupta (2010) 7 SCC 626; in the case of Union of India
&Anr. vs. National Federation of the Blind (2013) 10 SCC 772 and in
the case of Rajeev Kumar Gupta &Ors. vs. Union of India &Ors.
(2016) 13 SCC 153, wherein this Court has addressed the issues relating
to backlog of vacancies, the employer having not identified the post, the
duty cast on the Government and the statutory bodies as per cadre
RAJASTHAN HIGH COURT, JODHPUR & ANR. v. NEETU
HARSH & ANR. [A.S. BOPANNA,J.]
strength and the number of posts to be reserved,would not be of assistance
since the very writ petition in the instant case before the High Court was
not predicated on the basis that the Notification issued in the year 2016
did not make enough provisions for Differently Abled Persons. Further
though the learned senior counsel for the private respondent hascontended
before us that enough representation was not given from the ea rlier
years and the unfilled vacancies of the earlier year were also required to
be carried forward, the same was also not the contention bef ore the
High Court nor has the private respondent hereinchallenged the said
Notification dated 12.03.2016 on those groundsby offering herself as a
candidate under the Category of Differently Abled Persons.
11. However, one aspect of the matter which is to be taken note
is with regard to the contention of the learned senior counse l for the
private respondent that the mandamus issued by the High Co urt is
sustainable since the vacancy could not have been filled up by any other
category but ought to have been carried forward and in that circumstance
if the provision as contained in Section 36 of PWD Act is kept in view,
the action of the appellants herein in operating Rule 10(4) of the Rajasthan
Judicial Service Rules, 2010 would not be sustainable. It is, therefo re,
contended by the learned senior counsel for the private respondent that
in such circumstance in any event one post reserved for the Differently
Abled person in the selection for the year 2016 should have been kept
vacant to be carried forward to the next recruitment for want of candidate
and in that background keeping in view Section 36 of the PWD Ac t,
instead of carrying forward to the next recruitment the sam e being
ordered to be filled up by an available Differently Abled person is justified.
12. In order to appreciate this aspect of the matter it woul d be
necessary to take note of the provision as contained in Section 36 of the
PWD Act, 1995 which reads as hereunder:
“Vacancies not filled up to be carried forward – Wherein any
recruitment year any vacancy under section 33 cannot be filled
up due to non-availability of a suitable person with disability or, for
any other sufficient reason, such vacancy shall be carried forward
in the succeeding recruitment year and if in the succe eding
recruitment year also suitable person with disability is not available,
it may first be filled by interchange among the three categori es
and only when there is no person with disability available for the
839
post in that year, the employer shall fill up the va cancy by
appointment of a person, other than a person with disability.
Provided that if the nature of vacancies in an establishment is
such that a given category of person cannot be employed, the
vacancies may be interchanged among the three categories with
the prior approval of the appropriate Government.”
13. In that backdrop what is to be taken note is also the Rajasthan
Judicial Service Rules, 2010 framed under the Notifi cation dated
18.01.2010 which is in exercise of the power conferred by Article 233
and 234 read with proviso to Article 309 of the Constitution of India. The
Notification reads as hereunder;
“ DEPARTMENT OF PERSONNEL
(A-Gr.2)
NOTIFICATION
Jaipur, January 18, 2010
G.S.R.81 .- In exercise of the powers conferred by Article 233
and 234 read with proviso to Article 309 of the Constitution of India and
all other powers enabling him in this behalf, the Governor of Rajasthan
in consultation with the Rajasthan Public Service Commission and the
High Court of Judicature for Rajasthan hereby makes the following rules
regulating recruitment to the posts in, and the conditions and other matters
related to the service of persons appointed to the Rajast han Judicial
Service, namely:- “
In the said Rajasthan Judicial Service Rules, Rule 10(4) reads as
hereunder:
“(1) x x x x x x
(2) x x x x x x
(3) x x x x x x
(4) Reservation of posts for Persons with Disabilities as defined
in the Rajasthan Employment of Disabled Persons Rules, 2000,
shall be 3% category-wise which shall be horizontal and shall be
available only at the time of initial recruitment. In the event of
non-availability of eligible and suitable persons with disabilities in
a particular year, the vacancy so reserved for them shall be filled
RAJASTHAN HIGH COURT, JODHPUR & ANR. v. NEETU
HARSH & ANR. [A.S. BOPANNA,J.]
in accordance with the normal procedure and such vacancies shall
not be carried forward to the subsequent year.
Provided that the total number of posts reserved for all such
categories in a direct recruitment shall not exceed 50% of the
total vacancies.”
14. The Rule therefore framed is under the provisions of the
Constitution of India which relates to the selection of the Judicial Officers,
for which the yardsticks could be laid down in the Rules. On this aspect
of the matter the decision relied on by the learned senior counsel for the
appellants in the case of V. Surendra Mohan vs. State of Tamil Nadu
&Ors . (2019) 4 SCC 237 would be apposite. In the said case, this Court
in a matter relating to the selection for the post of Civil Judge (Junior
Division) to the Tamil Nadu Judicial Service was confronted w ith a
situation whereunder the Notification prescribed the percentage of
disability at 40 to 50 % forpartially blind and partially deaf for selection.
The candidate who had assailed the action possessed the disability
certificate mentioning the disability at 70 %. Since under Section 33 of
the PWD Act, 1995 no restriction on disability to the extent of 40 to 50%
can be put, the restriction on disability as per the Notification was assailed
before the Madras High Court which culminated in the appeal befo re
this Court. In that context while considering the matter, this Court had
adverted to the issue as to whether the restriction on disability is in breach
of the provisions of the PWD Act, 1995 and is it to be set aside. In that
context, the validity of the Tamil Nadu State Judicial Service (Cadre and
Recruitment) Rules, 2007 vis-a-vis the provisions of the PWD Act, 1995
was examined and the power under which the Rules 2007 (which is akin
to the Rajasthan Rules, 2010) being framed, as empowered under the
provisions of the Constitution was taken note with reference to the earlier
judgments of this Court. Though the said decision is not in relat ion to
Section 36 of the PWD Act, 1995, prima facie when it is no ticed that
Rule 10(4) is contained in the Rules,2010 framed in exercise of the powers
conferred under Article 233 and 234 read with proviso to Article 309 of
the Constitution of India, the Rule being operated will be just ified. As
already noted, neither the notification nor the Rule were under challenge.
In terms thereof the appellants on taking note that there is no ot her
application/applicant seeking the appointment under the category reserved
for Differently Abled Persons has filled up by selecting the next meritorious
841
candidate from the other category. Hence in a circumstance wh ere no
challenge is laid to the Rule the action to that extent would be justified.
15. That apart, though it is contended by the private respondent
that it was a mistake in indicating “No” against the Column 3.1 – ‘Person
with Disability’, what is necessary to be taken note is that against Column
2.4 – ‘Category’,it has been stated as “General”. Th at apart the
examination fee fixed for General candidates is Rs. 250/- while for the
eligible disabled applicant it is fixed at Rs. 50/-. The private respondent
in addition to indicating her category as ‘General’ has pa id the fee of
Rs. 250/- as applicable. Further, though the disability certificate dated
05.07.2010 is presently relied upon, there is no material to indicate that
the same was enclosed along with the application or produced ti ll the
completion of interview. On this aspect,to contend that the private
respondent cannot make a contrary claim, the learned senior counsel for
the appellants herein has relied on the decision in the case of J&K Public
Service Commission vs. Israr Ahmad (2005) 12 SCC 498 wherein it is
held in para 5 as hereunder:
5. We have considered the rival contentions advanced by both
the parties. The contention of the first respondent cann ot be
accepted as he has not applied for selection as a candidate entitled
to get reservation. He did not produce any certificate along with
his application. The fact that he has not availed of the benefit for
the preliminary examination itself is sufficient to treat him as a
candidate not entitled to get reservation. He passed the preliminary
examination as a general candidate and at the subsequent s tage
of the main examination he cannot avail of reservation on the
ground that he was successful in getting the required certifi cate
only at a later stage. The nature and status of the candidate who
was applying for the selection could only be treated alike and
once a candidate has chosen to opt for the category to which he
is entitled, he cannot later change the status and make fresh claim.
The Division Bench was not correct in holding that as a candidate
he had also had the qualification and the production o f the
certificate at a later stage would make him entitled to seek
reservation. Therefore, we set aside the judgment of the Division
Bench and allow the appeal. No costs.
16. Further the decision in the case of Registrars General,
Calcutta High Court vs. Shriniwas Prasad Shah &Ors . (2013) 12
RAJASTHAN HIGH COURT, JODHPUR & ANR. v. NEETU
HARSH & ANR. [A.S. BOPANNA,J.]
SCC 364 is relied on, wherein this Court has disallowed the claim in a
case where in the application the category of reservation was indicated
but certificate was not produced and the fee applicab le to general
candidate was paid.In addition, the learned senior c ounsel for the
appellants herein also refers to the inherent contradictions in the claim
of the private respondent apart from the fact that the claim for
consideration under the category reserved for Differently Abled Persons
is not made.
17. In that regard it is pointed out that even as per the disabili ty
certificate dated 05.07.2010 sought to be relied on at present, the
description of permanent disability is shown as Hemipleg ia – Non-
functional hand. It is in that background pointed out that though that is
the nature of disability indicated therein which will be locomotor disability,
in the representation dated 28.11.2016 which was made belatedly t he
private respondent has claimed that she is visually impaired, more than
80% and the reference made is to the same disability ce rtificate dated
05.07.2010. The learned senior counsel for the private respondent no
doubt has referred to an article relating to Hemiplegia wherein reference
is also made to the difficulties in seeing. The very nature of the contention
would indicate that in the instant facts the claim in the application under
the category should have been made and the disability certifi cate was
required to be produced along with the application since the nat ure of
the disability was a matter which was to be considered by the recruiting
authorities concerned, if need be on medical examination. If visual
impairment as a consequence of Hemiplegia was to be considered, the
percentage of disability by visual impairment will also be relevant and
the same was required to be determined at the appropriate stage.
18. Therefore, in a circumstance where the issue is whethe r the
disability claimed is locomotor disability or visual impairment and the
same itself being a question to be debated, it would not be possible for
the Court to act as an expert and in such circumstance a m andamus to
consider the same in a particular manner would not also be justified. It is
no doubt true that the employment opportunities to the differently abled
personsis to be provided as a matter of right when a case is made out
and there is no need for sympathetic consideration. However, in the
instant facts when the claim was not made and there are deb ateable
issues, though we could empathise with the cause of the private respondent
the nature of direction issued by the High Court in any event cannot be
843
considered as justified. This is more so, in a circumstanc e where the
appellants had acted in terms of the Rajasthan Judicial Service Rules,
2010 when no other claim was available and had appointeda candidate
from the other category and when such appointment has been made ,
disturbing such candidate at this juncture also will not be justified. Hence
for all the afore stated reasons, we find the order dated 04.05.20 17
passed by the High Court to be unsustainable and the same is accordingly
set aside.
19. Accordingly, the appeal is allowed with no order as to costs.
All pending applications stand disposed of.
Ankit Gyan Appeal allowed.
RAJASTHAN HIGH COURT, JODHPUR & ANR. v. NEETU
HARSH & ANR. [A.S. BOPANNA,J.]