Holding

The High Court’s direction to consider the private respondent for the reserved post is unsustainable and is set aside.

Summary

The Rajasthan High Court had directed the state to consider a candidate, who had applied for a Civil Judge post as a General category applicant and paid the general fee, for one of the two vacancies reserved for persons with disabilities after she later claimed visual impairment based on a disability certificate showing hemiplegia. The Supreme Court held that because the applicant did not claim the reserved category at the time of filing her application, did not produce the disability certificate then, and paid the higher fee, the claim was belated and the nature of the disability was debatable. The Court further observed that Rule 10(4) of the Rajasthan Judicial Service Rules, 2010 requires unfilled reserved vacancies to be filled by normal procedure and not carried forward, and that a mandamus cannot be issued to direct the authorities to treat the applicant as a differently‑abled candidate. Consequently, the High Court’s order was set aside and the appeal was allowed.

Issues considered

Whether a candidate who did not indicate a claim for reservation for persons with disabilities at the time of application can later be considered for a reserved vacancy.
Whether the High Court’s mandamus directing consideration under the PWD Act is justified when the claim is made belatedly and the nature of disability is uncertain.
Interpretation of Rajasthan Judicial Service Rules, 2010, Rule 10(4) and Section 36 of the Persons with Disabilities Act regarding carry‑forward of reserved vacancies.
Whether the court can act as an expert to determine the type of disability claimed.

Legislation cited

Constitution of Indias. Article 233, s. Article 234, s. Article 309 (proviso)
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995s. 18, s. 19, s. 20, s. 21, s. 22, s. 23, s. 24, s. 25, s. 26, s. 27, s. 28, s. 29, s. 2(b), s. 2(c), s. 2(d), s. 2(e), s. 2(o), s. 2(p), s. 2(t), s. 30, s. 31, s. 32, s. 33, s. 36

Subjects

reservationpersons with disabilitiesjudicial recruitmentRajasthan Judicial Service Rulesdisability certificatemandamusPWD Acteligibilityvacancy carry forward

Judgment

[2019] 11 S.C.R. 829 829

RAJASTHAN HIGH COURT, JODHPUR & ANR. A
v.
NEETU HARSH & ANR.
(Civil Appeal No. 6696 of 2019)
AUGUST 29, 2019
B
[R. BANUMATHI AND A. S. BOPANNA, JJ.]
Judicial Services – Rajasthan Judicial Service Rules, 2010 –
r.10(4) – Persons with Disabilities (Equal opportunities, Protection
of Rights and Full Participation) Act, 1995 – s.36 – Appellants issued
notification calling for applications for recruitment to the post of
Civil Judge-cum-Judicial Magistrate in the Civil Judge Cadre for C
72 posts – Among the same, two posts were kept reserved for persons
with disabilities – Private respondent applied indicating her
category as “General” and in the column provided for indication
of the claim under the Differently Abled Category had mentioned
“No” – Private respondent was declared successful in the D
Preliminary examination, main examination and the interview – She
had obtained 136 marks and 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 –
Subsequent thereto, the private respondent made representation with
a request to consider her candidature under the category for E
differently abled persons as visually impaired and to provide
appointment – Representation was not accepted – Writ petition –
High Court directed appellants to consider the candidature of the
private respondent for appointment in the Civil Judge cadre against
the two vacancies reserved for disabled candidates – Appellants F
contended that disability certificate relied on by the private
respondent showed description of permanent disability as
Hemiplegia-Non-functional hand – However, in the representation
made by her she claimed that she was visually impaired and reference
was made to the same disability certificate – On appeal, held: In
the instant case, whether the disability claimed by the private G
respondent is a locomotor disability or visual impairment is itself a
debatable question, it would not be possible for the Court to act as
an expert and in such circumstance a mandamus to consider the
same in a particular manner would not be justified – It is true that
the employment opportunities to the differently abled persons is to H
829
830 SUPREME COURT REPORTS [2019] 11 S.C.R.

A be provided as a matter of right when a case is made out – However,
when the claim was not made and there are debateable issues, the
direction of the High Court cannot be considered justified – More
so, appellants had acted in terms of Rajasthan Judicial Service
Rules, 2010 and appointed a candidate from the other category for
the vacant disabled category – So, when such appointment has been
B
made, disturbing such candidate at this juncture not justified – Thus,
order passed by the High Court unsustainable – Constitution of
India – Arts.233 and 234 r/w. proviso to Art. 309.
Allowing the appeal, the Court
HELD: 1. Though it is contended by the private respondent
C 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”. That apart the examination fee fixed for General
candidates is Rs. 250/- while for the eligible disabled applicant it
D is fixed at Rs. 50/-. The private respondent in addition to indicating
her category as ‘General’ has paid 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
till the completion of interview. On this aspect, to contend that
E the private respondent cannot make a contrary claim, the
appellants herein has relied on the decision in the case of J&K
Public Service Commission vs. Israr Ahmad. [Para 15][841-A-D]
2. Further the decision in the case of Registrars General,
Calcutta High Court vs. Shriniwas Prasad Shah & Ors. is relied
F 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 applicable to general
candidate was paid. In addition, 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
G
under the category reserved for Differently Abled Persons is not
made. It is also pointed out that even as per the disability certificate
dated 05.07.2010 sought to be relied on at present, the description
of permanent disability is shown as Hemiplegia – Non-functional
hand. It is in that background pointed out that though that is the
H nature of disability indicated therein which will be locomotor
RAJASTHAN HIGH COURT, JODHPUR & ANR. v. NEETU 831
HARSH & ANR.

disability, in the representation dated 28.11.2016 which was made A
belatedly the private respondent has claimed that she is visually
impaired, more than 80% and the reference made is to the same
disability certificate dated 05.07.2010. 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
B
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 certificate was required to be produced
along with the application since the nature of the disability was a
matter which was to be considered by the recruiting authorities
concerned, if need be on medical examination. If visual C
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. [Paras 16 and 17][841-H; 842-A-F]
3. Therefore, in a circumstance where the issue is whether D
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 mandamus 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 persons is to E
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
debateable issues, though this Court could empathise with the
cause of the private respondent the nature of direction issued by F
the High Court in any event cannot be considered as justified.
This is more so, in a circumstance where the appellants had acted
in terms of the Rajasthan Judicial Service Rules, 2010 when no
other claim was available and had appointed a candidate from the
other category and when such appointment has been made,
disturbing such candidate at this juncture also will not be justified. G
Hence for all the afore stated reasons, this Court finds the order
dated 04.05.2017 passed by the High Court to be unsustainable
and the same is accordingly set aside. [Para 18][842-F-H; 843-
A-B]
H
832 SUPREME COURT REPORTS [2019] 11 S.C.R.

A Government of India through Secretary & Anr. v. Rani
Prakash Gupta (2010) 7 SCC 626 : [2010] 7 SCR
851; Union of India & Anr. v. National Federation of
the Blind (2013) 10 SCC 772 : [2013] 9 SCR 1023;
Rajeev Kumar Gupta & Ors. v. Union of India & Ors.
(2016) 13 SCC 153 : [2016] 3 SCR 407; V. Surendra
B
Mohan v. State of Tamil Nadu & Ors. (2019) 4 SCC
237 : [2019] 1 SCR 954; J&K Public Service
Commission v. Israr Ahmad (2005) 12 SCC 498;
Registrars General, Calcutta High Court v. Shriniwas
Prasad Shah & Ors. (2013) 12 SCC 364 : [2013] 3
C SCR 211 – referred to.
Case Law Reference
[2010] 7 SCR 851 referred to Para 10
[2013] 9 SCR 1023 referred to Para 10
[2016] 3 SCR 407 referred to Para 10
D
[2019] 1 SCR 954 referred to Para 14
(2005) 12 SCC 498 referred to Para 15
[2013] 3 SCR 211 referred to Para 16
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6696
E of 2019.
From the Judgment and Order dated 04.05.2017 of the High Court
of Judicature for Rajasthan at Jodhpur in D.B. Civil Writ Petition No.692
of 2017.
Ms. Meenakshi Arora, Sr. Adv., Mukul Kumar, Advs. for the
F Appellants.
Pallav Shishodia, Sr. Adv., H. D. Thanvi, Bheem Kant Vyas,
Rimjhim Mathur, V. K. Harsh, Rishi Matoliya, Advs. for the Respondents.
The Judgment of the Court was delivered by
A.S. BOPANNA,J.
G
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
H
RAJASTHAN HIGH COURT, JODHPUR & ANR. v. NEETU 833
HARSH & ANR. [A.S. BOPANNA,J.]

the appellants herein were directed to consider the candidature of the A
private respondent herein for appointment on the post of Civil Judge-
cum-Judicial Magistrate in the Civil Judge Cadre against 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
B
High Court is assailed herein primarily on the contention that the private
respondent herein had not applied against the vacanciesadvertised 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. C
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 persons with
disabilities. The private respondent herein had responded to the said D
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 private
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 examination and E
thereafter in the interview also as General category candidate 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 F
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 visually impaired
and to provide the appointment. The said representation being taken
note, the private respondent was informed that her candidature under G
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
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834 SUPREME COURT REPORTS [2019] 11 S.C.R.

A 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,
B only one vacancy is filled in by way of providing appointment to the
candidate named Ms. Renu Motwani at Serial No.57. In that regard,
though there is no definite material on record the High Court has also
observed that in the earlier examination for the same post held in the
year 2013 the private respondent herein was allowed to appear in the
physically handicapped category because she was having 80% disability.
C In that view, though it is not in dispute that the private respondent had
indicated her category as “General” in the application, the High Court
was of the view that even though a mistake was committed by the
candidate, the representation submitted by her subsequently ought to
have been considered sympathetically and in this regard it was observed
D 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
E 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 Personsas
provided under PWD Act, notwithstanding the fact that the issue presently
related to the appointment of the Judicial Officer in the backdrop of the
F 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
G appellants, Mr. PallavShishodia, senior advocate for 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 relating to
H
RAJASTHAN HIGH COURT, JODHPUR & ANR. v. NEETU 835
HARSH & ANR. [A.S. BOPANNA,J.]

the reservation and the procedure for consideration of Differently Abled A
Persons reads as hereunder:

Total Year Reserved Persons with
No. disabilities (Differently
of abled)
B
Posts
70 Current 37 out 11 out 8 out of 14 out Out of 70
Vacancies of of which 2 of vacancies, 2
which which 3 posts which 4 posts
11 posts reserved posts reserved for
posts reserved for reserved persons
reserved for woman for with C
for women woman disabilities
woman
2 Backlog - - 2 - -
(Backlog)

D
“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 disabled
persons are reserved for applicants having Locomotor Disability E
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)
F
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)
G
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
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836 SUPREME COURT REPORTS [2019] 11 S.C.R.

A shall be filled as per the procedure and manner prescribed in
Rajasthan Judicial Services Rules, 2010 (as amended).
6. A married woman candidate in order to receive benefit of
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
B and income of her father.”
“5. Exam fee:
Applicant shall have to pay exam fee in accordance with his/
her category.

C 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/-.
D 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
E 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 are true,
complete and correct. In the Column for payment of the application fee
F
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
G 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
H
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HARSH & ANR. [A.S. BOPANNA,J.]

indicated in the representation that she hadinadvertently not mentioned A
the physically handicapped category in the application form. She has
also stated that during the previous year she had appeared as a candidate
under the category of Persons with Disabilities and therefore she be
considered against the other vacant post.
8. The learned senior counsel for the appellants has contended B
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 C
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 D
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 E
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 F
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 G
&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 H
838 SUPREME COURT REPORTS [2019] 11 S.C.R.

A 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 earlier
B
years and the unfilled vacancies of the earlier year were also required to
be carried forward, the same was also not the contention before 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.
C 11. However, one aspect of the matter which is to be taken note
is with regard to the contention of the learned senior counsel for the
private respondent that the mandamus issued by the High Court 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
D 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, therefore,
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
E 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 Act,
instead of carrying forward to the next recruitment the same 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 would be
F 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
G any other sufficient reason, such vacancy shall be carried forward
in the succeeding recruitment year and if in the succeeding
recruitment year also suitable person with disability is not available,
it may first be filled by interchange among the three categories
and only when there is no person with disability available for the
H
RAJASTHAN HIGH COURT, JODHPUR & ANR. v. NEETU 839
HARSH & ANR. [A.S. BOPANNA,J.]

post in that year, the employer shall fill up the vacancy by A
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.” B
13. In that backdrop what is to be taken note is also the Rajasthan
Judicial Service Rules, 2010 framed under the Notification 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; C
“ DEPARTMENT OF PERSONNEL
(A-Gr.2)
NOTIFICATION
Jaipur, January 18, 2010 D
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 E
regulating recruitment to the posts in, and the conditions and other matters
related to the service of persons appointed to the Rajasthan Judicial
Service, namely:- “
In the said Rajasthan Judicial Service Rules, Rule 10(4) reads as
hereunder: F
“(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 G
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
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840 SUPREME COURT REPORTS [2019] 11 S.C.R.

A 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.”
B 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
C &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 with 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
D 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 before
this Court. In that context while considering the matter, this Court had
E 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
F provisions of the Constitution was taken note with reference to the earlier
judgments of this Court. Though the said decision is not in relation to
Section 36 of the PWD Act, 1995, prima facie when it is noticed 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
G the Constitution of India, the Rule being operated will be justified. As
already noted, neither the notification nor the Rule were under challenge.
In terms thereof the appellants on taking note that there is no other
application/applicant seeking the appointment under the category reserved
for Differently Abled Persons has filled up by selecting the next meritorious

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candidate from the other category. Hence in a circumstance where no A
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”. That apart the B
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 paid 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 till the C
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: D
5. We have considered the rival contentions advanced by both
the parties. The contention of the first respondent cannot 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 E
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 stage
of the main examination he cannot avail of reservation on the
ground that he was successful in getting the required certificate
only at a later stage. The nature and status of the candidate who F
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 of the G
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 H
842 SUPREME COURT REPORTS [2019] 11 S.C.R.

A 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 applicable to general
candidate was paid.In addition, the learned senior counsel 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
B
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 disability
certificate dated 05.07.2010 sought to be relied on at present, the
description of permanent disability is shown as Hemiplegia – Non-
C 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 the
private respondent has claimed that she is visually impaired, more than
80% and the reference made is to the same disability certificate dated
D 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 certificate was
required to be produced along with the application since the nature of
E 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.
F 18. Therefore, in a circumstance where the issue is whether 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 mandamus to
consider the same in a particular manner would not also be justified. It is
G 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 debateable
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
H
RAJASTHAN HIGH COURT, JODHPUR & ANR. v. NEETU 843
HARSH & ANR. [A.S. BOPANNA,J.]

considered as justified. This is more so, in a circumstance where the A
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 04.05.2017
B
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.
C
Ankit Gyan Appeal allowed.

D

E

F

G

H