Seats Reserved For PWD Category Candidates Cannot Be Sub-Classified On The Basis Of Caste: Gauhati High Court

While granting relief to the petitioner, who was excluded from the recruitment drive conducted by the Assam Government merely for the fact that he was a general category candidate with physical disability, the Single Judge Bench of Justice Suman Shyam held,

"…this Court is of the unhesitant opinion that having reserved four vacancies to be filled up by PWD candidates and having permitted the General Category candidates to participate in the recruitment process, there was no scope for the authorities to further reserve those four vacancies in PWD category to be filled up only by candidates belonging to OBC/ MOBC or ST(H) category."

Factual Background:

The writ petitioner herein was a general category candidate but he was suffering from hearing impairment to the extent of more than 60%. As such, he had submitted his candidatures as PWD candidate belonging to the General Category for the Veterinary Department.

Aggrieved by non-inclusion in the select list, the present petition was filed seeking a writ of mandamus directing the respondents to appoint him against the quota reserved for the Person With Disabilities ("PWD") category candidates.

Appearing for the State of Assam, Additional Advocate General P.N. Goswami and Standing Counsel K. Konwar, appearing for the APSC, contended that in the advertisement notice itself the respondents have mentioned that out of the four vacancies reserved for PWD candidates, three of them were meant for OBC/ MOBC category and one post for ST(H) category. Thus, it is evident from the advertisement notice itself that even amongst the PWD candidates, there was further classification of the reserve category posts by confining those four posts only for the benefit of OBC/ MOBC and ST(H) candidates.

Senior Counsel K.N. Choudhury, who appeared for the petitioner, placed reliance on the judgment of the Supreme Court in Mahesh Gupta & Ors. v. Yashwant Kumar Ahirwar & Ors., (2007) 8 SCC 621, and contended that law is firmly settled that further reservation amongst the disabled on the basis of caste, creed or religion would be impermissible.

Judgment:

The Court held that there is no wrangle at the bar that as many as 4 (four) posts of Veterinary Officer/ Block Veterinary Officer were reserved for being filled up by candidates belonging to PWD category. However, as per the advertisement notice, these four posts were meant only for candidates with physical disability belonging to OBC/ MOBC and ST(H) category.

From the advertisement notice, it is clear that the recruitment process was not a special drive for intake of only reserved categories candidates belonging to OBC/ MOBC/ ST(H) category but the same was meant for General Category candidates as well. As a matter of fact, out of the 113 posts as many as 16 posts were meant for the general category candidates. There is also no dispute about the fact that the petitioner suffers from disability, being a person suffering from hearing handicap. As such, he would have been entitled to the benefit of reservation meant for the PWD hearing handicap category. It further observed,

"In the case of Mahesh Gupta (Supra) referred to by the learned counsel for the petitioner, the Hon'ble Supreme Court has categorically held that a disabled is a disabled and therefore, the question of making further reservation on the basis of cast, creed and religion would not ordinarily arise. Such a view has been expressed by observing that disabled are by themselves a special class and to that extent their further classification may not be justified. Similar is the view expressed in the case of M. Selvakumar & Anr. (Supra) wherein it has been observed that physically handicapped category is a category in itself and the persons who are physically handicapped have to be treated alike in extending the relaxation and concession regardless of the fact whether they belong to a general category or OBC category."

The Court also recorded that it is to be borne in mind that India is a signatory to the Beijing proclamation which aims at providing equal opportunities to persons with disabilities. In fulfilment of India's commitment as a signatory to the Beijing proclamation, the Parliament had enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Act makes it obligatory for the State and its instrumentalities to reserve posts for being filled up by persons with disabilities. As per Section 32 of the Act, the appropriate Government, which is the State Government of Assam in this case, is required to identify posts in every establishment that can be reserved for persons with disability.

Under Section 33 of the Act, the Government would not only have a statutory obligation to identify posts which can be reserved for persons with disability but would also have to earmark such vacancies, not less than 3%, for being filled up only by persons with disability. Such mandate of the statute is dehors any sub-classification and over and above any reservation based on caste, creed and religion.

For the reasons stated, the Court set aside the order issued by the third respondent (the Secretary, APSC) dated 30-11-2018. The State was directed to consider the case of the petitioner, within sixty days, for appointment in the post of Veterinary Officer/ Block Veterinary Officer against one of the three vacancies reserved for being filled up by PWD category candidates.

Case Title: Saidur Rahman v. The State of Assam & Ors.

Case No.: WP(C)/758/2019

Date of Judgment: 14 February 2022

Coram: Justice Suman Shyam

Citation: 2022 LiveLaw (Gau) 13