Case: RAJASTHAN HIGH COURT JODHPUR Vs. NEETU HARSH

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 Notification but filed 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 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 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 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 private respondent is having 80% disability as indicated in the certificate dated 05.07.2010 issued by the competent doctor.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, 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. 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 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 consideration

Reasoning: 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 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 Government of India through Secretary & Anr. vs. Rani Prakash Gupta (2010) 7 SCC 626  ; in the case of Union of India & 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 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 has contended before us that enough representation was not given from the earlier 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 herein challenged the said Notification dated 12.03.2016 on those grounds by offering herself as a candidate under the Category of Differently Abled Persons.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 & 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 % for partially blind and partially deaf for selection. The candidate who had assailed the action possessed the disability 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 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 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 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 candidate from the other category. Hence in a circumstance where no challenge is laid to the Rule the action to that extent would be justified.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 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 completion of interview.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-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 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 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.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 no doubt true that the 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. 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 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.