Judicial Service-A Candidate Applied For General Category Cannot Subsequently Claim Seat Reserved For Disabled Candidate:SC [Read Judgment]

The Supreme Court has held that a Candidate Applied for General Category cannot claim the seat reserved for disabled candidates at a later stage.

The Bench comprising Justices R Banumati and AS Bopanna dismissed the claim of a visually impaired candidate who had filled the application form under General category, and later claimed  a seat reserved for Persons with Disabilities (PWD) category in Rajasthan Judicial Service Examination, 2016.

Background

The appeal titled "Rajasthan High Court, Jodhpur & Anr. v. Neetu Harsh & Anr." was filed against the order of the Rajasthan High Court which directed the Appellants to consider the candidature of the Respondent, Neetu Harsha for appointment to the post of Civil Judge cum Judicial Magistrate against two vacancies reserved for disabled candidates in the Rajasthan Judicial Service Examination, 2016.

In the high court, the Respondent had claimed to be a differently abled person with 80% visual impairment having inadvertently filled the form as a general category candidate instead of a reserved category candidate. She had further submitted that in the earlier examination for the same post held in 2013, she had filled the form under PWD category and was allowed by the Appellants to appear in that category. In this view she submitted that even though a mistake was committed in filling the form, her case ought to have been considered sympathetically and the object of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act) should have been kept in view.

Appellant's Submissions

Notably, two vacancies were kept reserved for differently abled persons that year and only one seat was filled by a PWD category candidate. The Appellants contested in appeal that the remaining one seat could not at this juncture be allotted to the Respondent on the following grounds:

1. Rule 10(4) of the Rajasthan Judicial Service Rules, 2010 prescribes that unfilled seats will not be carried forward to the subsequent year and will be filled in by a more meritorious candidate from the General category. Thus, a general category candidate had already been appointed vis-à-vis the seat in question.
2. The Respondent could not be said to have mistakenly filled the form under General category since she ought to have noticed, despite her disability, that she paid Rs.250/¬ as fee for General category candidate instead of Rs. 50 for PWD category or that she did not upload her disability certificate. Moreover, the disability certificate was not produced till the completion of interviews. Reliance was placed upon J&K Public Service Commission v. Israr Ahmad (2005) 12 SCC 498.
3. The certificate relied upon by the Respondent described her permanent disability was Hemiplegia– Non-functional hand while in the present case she had claimed 80% visual impairment.

Respondent's Submissions

Responding to Appellant's contentions, the Respondent clarified that visual impairment was a consequence of Hemiplegia.

Next she submitted that a post reserved for a differently abled person should have been kept vacant to be carried forward to the next recruitment for want of candidate in view of Section 36 of PWD Act. Thus Rule 10(4) of the Rajasthan Judicial Service Rules, 2010 would not be sustainable.

Section 36 of the PWD Act provides: "Vacancies not filled up to be carried forward".

Findings

Dismissing the Respondent's submissions, Justice A.S. Bopanna said "…employment opportunities to the differently abled persons is to be provided as a matter of right when a case is made out and there is no need for sympathetic consideration".

He said that the Respondent could not challenge the vires of the rules governing recruitment since the same were not specifically challenged in their pleadings. Thus it held "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".

Further, her claim under the PWD category should have been made in the application and the disability certificate should have been produced along with the application. With regards the confusion if the disability was due to Hemiplegia or visual impairment, the court said "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".

Hence the court held that the order passed by the High Court was unsustainable and it was accordingly set aside.

Appearance: Senior Advocate Meenakshi Arora for the Appellants and Senior Advocate Pallav Shishodia for the Respondent

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