Persons With Disabilities Entitled To Horizontal Reservation Cutting Across "All Categories": Uttarakhand HC Quashes UKPSC Recruitment Notification

The Uttarakhand High Court has quashed an advertisement issued by the Uttarakhand Public Service Commission notifying vacancies for the post of Assistant Professors in Government Colleges, finding it to be in violation of Rule 11(4) of the Rights of Persons with Disability Rules, 2017 and the Supreme Court's decision in Indra Sawhney vs. Union of India and Anr.

The notification prescribed Horizontal reservation in a manner that in the Un-reserved category, no reservation was available to the physically handicapped candidates in the subject of Political Science. Similarly, in the History, no reserved seat was shown for a physically handicapped candidate who may also be a Scheduled Tribes candidate.

A division bench of Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe observed,

"The manner in which the State has sought to apply Horizontal reservations is completely contrary to the decision of the Supreme Court in Indra Sawhney (Supra)...Persons with disabilities are entitled to horizontal reservation cutting across all categories."

The Court explained that an otherwise eligible and qualified candidate/person with disability would first be allocated a seat and depending on whichever category that person belongs to, i.e. whether the person is a Scheduled Caste, Scheduled Tribe, Other Backward Classes, or is a General Category candidate, the seat in that category would stand exhausted.

In Indra Sawhney the Supreme Court had elucidated that Horizontal reservations cut across the vertical reservations and persons selected against this quota will be placed in the appropriate category. "If he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments."

Similarly, Rule 11(4) of the 2017 Rules prescribes that reservation for persons with disabilities in accordance with the provisions of section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class.

The UKPSC in its counter affidavit submitted that their manner of working out horizontal reservation had been prescribed by the State of Uttarakhand. The State of Uttarakhand has also filed its counter affidavit, in which it stated that the impugned advertisement was issued in lieu of a government order dated 22.05.2020. The GO had stated that "if under horizontal reservation no eligible candidate is found fit for selection, the selection for the said post will be done as per norms of general selection except for the posts reserved for Divyang (Disabled Person)"