If Carried-Forward Seat For PwD Not Filled In Successive Recruitment, Unreserved Category Candidate Becomes Entitled To It: MP High Court

Madhya Pradesh High Court has held that reserved posts that are 'carried forward' to the successive recruitment year for persons with disabilities, shall be filled by General category candidate if no suitable person with disability is available.

The single judge bench of Justice Sanjay Dwivedi observed that the term 'shall' has been used in Section 36 of the Persons with Disabilities Act (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It thus held that such reserved posts remaining should be given to eligible candidates from the unreserved category if there are no suitable persons with any of the categorical disabilities.

“…Since using the word 'shall' in the provision clearly implies that it is mandatory to fill-up the vacancy by appointing a person other than person with disability and as such the respondent-employer is under obligation to fill-up the vacancy by a person belonging to general category…”, the bench sitting at Indore added that the petitioner-candidate who is first among those in the waiting list should be appointed to fill up the vacant reserved post.

Section 36 states that vacancies not filled shall be carried forward. However, if there are no eligible persons with disabilities in the successive recruitment year, even after the interchange of three categories of disabilities, then such posts 'shall' be filled by persons from the general category.

The subject matter was regarding the appointment of the petitioner candidate who secured first place on the waiting list after the recruitment process. The recruitment to be made was to the post of mining officer against the vacancy of a disabled person. The court, after hearing both sides, inferred that the employer is required to fill the vacancy when no suitable person with any of the disabilities, including blindness or low vision, hearing impairment, locomotor disability or cerebral palsy, was found in the succeeding year.

“…Although the respondents have stated that a person securing position in the waiting list has no right to claim appointment, but here in the case at hand, it is the statute which creates right in favour of the petitioner as per Section 36 of Act, 1995 and as such the claim of the petitioner for appointment to the post of Mining Officer in other category for the post reserved for disabled candidate can be considered”, the court held.

The counsel for the petitioner, Adv. Shoeb Hasan Khan, submitted that the post for disabled persons had been remaining vacant since the past recruitment year. Section 36(2) of the Act allows for the conversion of carried forward vacant posts to posts of unreserved category, the counsel added.

The respondent Commission argued that the life of the waiting list had expired after one year, and hence, the claim of the petitioner has become redundant. The petitioner candidate, in turn, emphasised that the dispute was initially raised and was pending before the court during the said lifetime of the waiting list.

Advocate Nikhil Bhatt appeared for the MP Public Service Commission.

Case Title: Satish Kumar Mishra v. M.P. Public Service Commission District Indore & Ors.

Case No: Writ Petition No.13300/2017

Citation: 2024 LiveLaw (MP) 138

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