ASHA BHIKANRAO SONEWANE Vs STATE OF MAHARASHTRA .
Bench: RANJAN GOGOI,ASHOK BHUSHAN
Case number: SLP(C) No.-000888-000888 / 2000
Diary number: 20876 / 1999
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
C.A. NO. 858 OF 2017 (Arising out of SLP (C) NO. 21587 OF 2013)
UNION OF INDIA & ORS. ……..Petitioners VERSUS
M. SELVAKUMAR & ANR. ……….Respondents
with C.A. No. 859/2017 @ SLP (c) 18420 of 2015 with C.A. No. 860/2017 @ SLP (c) 25885 of 2015
JUDGMENT
ASHOK BHUSHAN J.
Leave granted. 2. These appeals have been filed challenging the
judgments of Madras High Court and Delhi High
Court allowing the writ petitions filed by
Physically Handicapped candidates belonging to
Other Backward Classes (OBC), claiming that they
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are entitled to avail 10 attempts instead of 7
attempts in the Civil Services Examination. The
challenge is on the ground that since the attempts
for Physically Handicapped candidates belonging to
General Category have been increased from 4 to 7,
w.e.f. 2007 Civil Services Examination, there
should be a proportionate increase in attempts to
be taken by Physically Handicapped Candidates
belonging to the OBC Category.
3. C. A. No. …… of 2017 @ Special Leave Petition
(Civil) No. 21587 of 2013 had been filed against
the judgment of the Division Bench of Madras High
Court dated 24.1.2012 in Writ Petition (c)No.
18705 of 2010 titled M. Selvakumar versus Central
Administrative Tribunal and Others.
4. C. A. No. ….. of 2017 @ Special Leave Petition
(Civil) No. 18420 of 2015, Union Public Service
Commission versus Tushar Keshaorao Deshmukh and
Another and C. A. No. ….. of 2017 @ SLP © No.
25885 of 2015 Union of India versus Tushar
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Keshaorao Deshmukh and Another have been filed
against the same judgment of Delhi High Court
dated 13.10.2014 in Writ Petition (c)No. 7377 of
2013.
5. The Delhi High Court in its judgment dated
13.10.2014 has followed the judgment of Madras
High Court in M. Selvakumar’s case (Supra).
CA No. 858 of 2017 @SLP (C) 21587 OF 2013
6. The Respondent M. Selvakumar, an
orthopaedically differently-abled person belonging
to Other Backward Class (OBC) applied for Civil
Services Examination for the first time in the
year 1998. The Respondent took 7 attempts between
the examination held in the year 1998 to 2006, but
failed to qualify the same.
7. Prior to 2007 Examination, Physically
Handicapped candidates belonging to General
Category were entitled to take only 4 attempts
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which were allowed to General Category Candidate
also, whereas, Physically Handicapped candidates
belonging to OBC Category were entitled to take 7
attempts equal to OBC Category candidates also.
There was no restriction on the number of attempts
for candidates belonging to SC/ST Category.
8. The Central Government is authorised to frame
rules for recruitment of Civil Services
Examination as per All India Services Act, 1951.
By Notification dated 29.12.2007, the Central
Government amended the Civil Services Examination
Rule by adding a condition that Physically
Handicapped Candidate belonging to General
Category shall be eligible for 7 attempts.
9. The Respondent submitted his application in
response to the Notification dated 29.12.2007,
appearing for his 9th attempt. The candidature was
not accepted, as he had already exhausted his 7
attempts at the examination. The Respondent filed
an O. A. No. 905 of 2008 before the Central
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Administrative Tribunal, Madras Bench, praying for
the following reliefs:
“(i)To declare that the clause 3(iv) of the notification dated 29.12.2007 in respect of the civil service preliminary examination, 2008 published in the employment news 29.12.2007-04.01.2008 edition as illegal in so far as not giving three more additional attempts to the physically handicapped in the other backward class apart from being discriminatory, violation of article 14 and in violation of the basic frame work of the PWD Act, 1995.
(ii)Consequently direct the 2nd respondent to extend three more attempts to the applicant for the Civil services preliminary examination.
(iii) Pass such other orders or direction as this Hon’ble Tribunal may deem fit in the circumstances of the case and to award costs and render justice.”
This application was contested by the Union of
India.
10. The Tribunal vide its judgment and order dated
17.03.2010, refused to condone the delay of 883
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days in filing the application and consequently
dismissed the same. The Respondent filed a Writ
Petition before the Madras High Court, challenging
the order of the Tribunal. The High Court vide its
judgment and order dated 24.01.2012, allowed the
writ petition, setting aside the order of the
Tribunal. It was held that increasing number of
attempts in respect of Physically Handicapped
candidates in the General Category from 4 to 7 and
not increasing proportionally the attempts for
Physically Handicapped candidates belonging to OBC
Category candidates is arbitrary. It was held
that the Petitioner (Respondent in the present
appeal) is further entitled to 3 more chances. The
Union of India aggrieved by the said judgment has
filed the SLP (c) No. 21587 of 2013.
C.A. No. 859 Of 2017 @ S.L.P.(C) NO.18420 OF 2015 & C.A. No. 860 Of 2017 S.L.P.(C) NO.25885 OF 2015
11. The common respondent in the aforesaid appeals
is a Physically Handicapped candidate belonging to
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the OBC Category who had submitted an application
for Civil Services Examination, 2012. Although, he
was permitted to appear in the Preliminary
Examination but when he submitted the detailed
application form for appearing in the Main
Examination, the Union Public Service Commission,
having noticed that he had already exhausted his 7
attempts at the examination, issued a show cause
notice and rejected his candidature for the 2012
Examination. The candidate aggrieved by the
rejection of his candidature filed an O. A. No.
930 of 2013 in the Central Administrative Tribunal
Principal Bench, Delhi.
12. The O.A. was contested by the Commission,
stating that the applicant in his application had
not correctly mentioned the number of attempts
undertaken by him, and after scrutiny it was found
that he had already availed as many as 8 attempts
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at the examination, exhausting the maximum number
of attempts permissible to his Category, i.e.
Physically Handicapped candidates belonging to OBC
Category, thereby his candidature was rightly
cancelled. It was also submitted that the Writ
Petitioner had not approached the court with clean
hands as he had not disclosed correctly, the
number of attempts undertaken by him. There being
suppression of the facts and the applicant not
being eligible to appear in 2012 Examination, his
candidature was rightly rejected.
13. The Tribunal vide its judgment and order dated
19.07.2013 dismissed the O. A. The Respondent
challenged the order of the Tribunal before the
Delhi High Court by filing a Writ Petition (c) No.
7377 of 2013. The Respondent in his Writ Petition
relied upon judgment of the Madras High Court in
M. Selvakumar (supra). The Delhi High Court held
that as long as the declaration of law as held in
M. Selvakumar’s case stands, the Tribunal ought to
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have followed it. The Delhi High Court following
the judgment of M. Selvakumar agreed with the view
of the Madras High Court, and stated that in the
case of OBC Candidates, 7 attempts permitted to
both physically-abled candidates and those with
disability is discriminatory. The Delhi High
Court allowed the Writ Petition and set aside the
rejection of the candidature of the Petitioner and
directed for declaration of the result and if the
Petitioner was found successful, his claim for
appointment was directed to be processed.
14. The Union Public Service Commission filed an
appeal challenging the above judgment dated
13.10.2014 and this Court on 08.07.2015 stayed the
operation of the aforesaid judgment of the Delhi
High Court.
15. We have heard Mrs. V. Mohana, Senior Advocate
Mr. Sanyat Lodha, Ms. Gunwant Dara and Mr. Mukesh
Kumar Maroriya for the appellants and Mr.
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Rajanmani, Ms. Jyoti Mendiratta and Mr. Satya
Mitra for the respondents.
16. Learned counsel for the appellants submits
that the view taken by both the Madras High Court
and the Delhi High Court, that there is
discrimination, since attempts permitted for
Physically Handicapped candidates belonging to the
General Category and that of Physically
Handicapped candidates belonging to OBC Category
have been made equal, is erroneous. It is
contended that Physically Handicapped candidates
both of General Category and OBC are entitled for
7 chances as per Civil Services Examination Rules.
The candidature of the Respondents in both the
appeals having exhausted their 7 permissible
attempts, was rightly rejected. The Madras High
Court although did not quash the Civil Services
Examination Rule, but had directed that Physically
Handicapped candidates belonging to OBC should be
given 3 additional attempts on erroneous grounds.
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It is contended that the relaxation granted to
different categories of candidates in the Civil
Services Examination is a matter of policy for the
Union of India and there being no error in the
said policy, the High Court ought not to have
tinkered with the Civil Services Examination
Rules, by directing something contrary to the
Rules. It is submitted that after the 2007
Examination, the attempts for Physically
Handicapped candidates belonging to General
Category were increased to 7, which is at par with
the Physically Handicapped candidates belonging to
the OBC Category. There is neither any
discrimination nor any arbitrariness.
17. Refuting the submission of the learned counsel
for the appellant, learned counsel for the
respondents contended that the Government to
achieve the objective of increasing the
representation of disabled persons in the Civil
Services has increased the number of attempts for
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Physically Handicapped candidates belonging to
General Category by 3 more attempts. The
aforesaid increase of 3 more attempts ought to
have been granted to disabled persons of the OBC
category as well. Equating the number of attempts
for disabled persons from open category with the
number of attempts for disabled persons in the OBC
Category, the Government is treating the unequals
equally which is forbidden under Article 14 and
16(1).
18. Learned counsel for the respondents has placed
reliance on the decision of the Delhi High Court
in Writ Petition (c) No. 4853 of 2012 Anamol
Bhandari (Minor) through his Father/Natural
Guardian versus Delhi Technological University
decided on 12.09.2012 and of this Court in Indra
Sawhney and Others versus Union of India and
Others 1992 Suppl. (3) SCC 217, State of Kerala
and Another versus N. M. Thomas and Others (1976)
2 SCC 310, Union of India and Another versus
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National Federation of the Blind & Others (2013)
10 SCC 772 and judgment of this Court in Justice
Sunanda Bhandare Foundation versus Union of India
and Others (2014) SCC 383. Learned counsel has
also relied on Press Note dated 27th April, 2007
issued by Government of India, Ministry of
Personnel, Public Grievances and Pensions as well
as the report of May 2007 issued by the World Bank
“People with disabilities in India……………………….. from
commitments to outcomes”.
19. We have considered the submissions of the
learned counsel of the concerned parties and
perused the records. Before we proceed to the
respective submissions of the learned counsel for
the parties, it is relevant to refer to the Civil
Services Examination Rules which governed the
field. The Respondent in Madras High Court case
has appeared in 2008 Examination whereas
Respondent in Delhi High Court Case has appeared
in 2012 Examination in which, their respective
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candidatures were rejected on the ground that they
have exhausted the maximum permissible attempts
i.e. 7.
20. The Notification dated 29.12.2007 has been
filed as Annexure P-1 to SLP(C) 21587 of 2013 for
governing 2008 Examination. Para 4 which pertained
to the number of attempts is as follows:
“4. Every candidate appearing at the examination who is otherwise eligible, shall be permitted four attempts at the examination.
Provided that this restriction on the number of attempts will not apply in the case of Scheduled Castes and Scheduled Tribes candidates who are otherwise eligible:
Provided further that the number of attempts permissible to candidates belonging to Other Backward Classes, who are otherwise eligible, shall be seven. The relaxation will be available to the candidates who are eligible to avail of reservation applicable to such candidates.
Provided further that a physically handicapped will get as many attempts as are “available to other
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non-physically handicapped candidates of his or her community, subject to the condition that a physically handicapped candidate belonging to the General Category shall be eligible for seven attempts. The relaxation will be available to the physically handicapped candidates who are eligible to avail of reservation applicable to such candidates.”
21. Another rule which is of the relevance here is
Rule 6. Rule 6(a) provides that candidate must
have attained ‘the age of 21 years and must not
have attained the age of 30 years as on the 1st of
August…………..’
“6(a) a candidate must have attained the age of 21 years and must not have attained the age of 30 years on the 1st of August, 2008 i.e. he must have been born not earlier than 2nd
August, 1978 and not later than 1st
August, 1987.
Rule 6(b) provides for relaxation of upper age limit. Rule 6(b) (i), (ii) and (vii) with note one which is relevant is as quoted below:
6(b)The upper age-limit prescribed above will be relaxable:
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(i) Up to a maximum of five years if a candidate belongs to a Scheduled Caste or a Scheduled Tribe;
(ii)Up to a maximum of three years in the case of candidates belonging to Other Backward Classes who are eligible to avail of reservation applicable to such candidates;
(vii)upto a maximum of 10 years, in the case, of blind, deaf-mute and Orthopaedically handicapped persons,
Note I-Candidates belonging to the Scheduled Castes and the Scheduled Tribes and the Other Backward Classes who are also covered under any other clauses of Rule 6(b) above, viz. those coming under the category of Ex-servicemen, persons domiciled in the State of J & K, blind, deaf-mute and orthopaedically handicapped etc. will be eligible for grant of cumulative age-relaxation under both the categories.”
22. The Rules as extracted above for 2008
Examination are identical with regard to Civil
Service Examination 2012 as it appears from the
Notification dated 04.02.2012, brought on record
in SLP (C) No. 18420 of 2015. The reference of
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Rule for 2008 Examination as quoted above shall be
sufficient to decide the issue.
23. Article 16 of the Constitution provides for
equality of opportunity in matters of public
employment. The State in terms of Article 16 of
the Constitution provides two types of
reservations i.e. a vertical or social reservation
as provided for in Article 16 sub clause (4) and
horizontal reservation which is referable to
Article 16 sub clause (1). Special reservation in
favour of physically handicapped, women etc. under
Article 16(1) or 15(3) of the Constitution are the
instances of horizontal reservation.
24. A 9-Judges Bench in Indra Sawhney and Others
versus Union of India and Others
1992 Suppl. (3) SCC 217 had elaborately
considered both the concepts of reservation. In
Para 812 of the said judgment, Justice B. P.
Jeevan Reddy, has referred to both the types of
reservations. It was held that horizontal
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reservations cut across the vertical reservation.
Following was stated:
“812. There are two types of reservations, which may, for the sake of convenience, be referred to as ‘vertical reservations’ and ‘horizontal reservations’. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations – what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC)
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category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains – and should remain – the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.”
25. In the present case before us, issues centre
around, the second category of reservation i.e.
horizontal reservations which is provided for
candidates belonging to the Category of Physically
Handicapped. In the Civil Services Examination
both vertical and horizontal reservations are
provided for. The reservation for SC/ST and Other
Backward Classes (OBC) which has been provided for
in the Civil Services Examination with regard to
number of posts is not in issue rather what is the
content of horizontal reservation provided for
Physically Handicapped Category in Civil Services
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Examination is up for consideration. Especially,
as to whether in grant of relaxation with regard
to number of attempts to appear in the Civil
Services Examination in context of Physically
Handicapped candidates of General Category to 7
and not further increasing the number of attempts
for OBC Physically Handicapped candidates from 7,
there is a discrimination or violation of Article
14 of the Constitution, is the moot question to be
answered.
26. From the Rules of Civil Services Examination,
as noticed above following result in context of
number of attempts is discernable:
“(i)Every candidate appearing at the examination who is otherwise eligible, shall be permitted 4 attempts at the examination
(ii)The first proviso to the rules provided that the restriction of the number of attempts will not apply in the case of SC/ST candidates
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(iii) The Second proviso of the Rule provided that attempts permissible to candidates belonging to Other Backward Class shall be 7.
(iv)The Third proviso to rule provides that a physically handicapped will get as many attempts as are available to other non-physically handicapped candidates of his or her community, subject to the condition that a physically handicapped candidate belonging to the general category shall be eligible for 7 attempts.”
27. The main plank of the arguments of Respondents
is that prior to 2007 Civil Services Examination,
number of attempts for candidates belonging to
General Category including Physically Handicapped
was only 4 and it was only in 2007 that number of
attempts for physically handicapped candidates of
General Category were increased from 4 to 7. And
since no proportionate increase in the number of
attempts for Physically Handicapped Category
candidates of OBC was made, the grant to the
respondent is arbitrary and discriminatory being
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violative of Article 14. At this juncture, it is
relevant to note the reasons given by Madras High
Court for allowing the writ petitions. In para No.
6 and 7 of the judgment, the Madras High Court
observed as follows:
“6....When the number of attempts has been increased from four to seven in respect of physically challenged candidates in the General Category and when there is no restriction with regard to the number of attempts for physically handicapped candidates in SC/ST category, restricting the number of attempts to seven in respect of physically handicapped candidates in the Other Backward Class Community, is in violation of article 14 of the Constitution of India. Therefore we hold that the number of attempts of seven fixed for physically handicapped candidates in the Other Backward Class Community, is disproportionate to the number of attempts granted to physically handicapped candidates in the General Category.”
“7....In this case admittedly, the number of attempts in respect of
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physically handicapped candidates in the General Category has been increased from four to seven. However, the number of attempts in respect of physically handicapped candidates belonging to Other Backward Class community has not been proportionately increased, which is arbitrary and prejudicial to the interest of the physically handicapped candidates belonging to Other Backward Class Community.”
28. Whether actually there is any discrimination
in number of attempts made available to Physically
Handicapped candidates, belonging to General
Category and those of OBC Category is the question
to be answered. All Physically Handicapped
Category candidates have been granted uniform
relaxation of upper age by 10 years, as per Rule
6, as quoted above in addition to relaxation in
age of 5 years for SC Category candidates and 3
years for OBC Category candidates as per Note-I of
Rule 6, the benefit of age relaxation can be taken
by Reserved Category candidates cumulatively.
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29. Last sub rule of Rule 4 as noted above
indicates that the 3rd proviso contains a theme of
relaxation pertaining to Physically Handicapped
candidates who are eligible to avail reservation
applicable to such candidates. Provided further
that a physically handicapped will get as many
attempts as are available to other non-physically
handicapped candidates of his or her community.
The above is subject to the condition that a
physically handicapped candidate belonging to the
General category shall be eligible for seven
attempts. Thus, a Physically Handicapped
candidate of General Category has been given equal
chance as compared to a Physically Handicapped
candidate belonging to OBC. No discrimination can
be read, when the number of attempts for both the
above categories has been made equal i.e. 7. The
number of attempts for SC/ST candidates is
unlimited within their maximum age limit with
regard to which there is no challenge.
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30. Reservation for Physically Handicapped is a
kind of horizontal reservation, as noted above. As
accepted, physically handicapped persons belonging
to any category i.e. General, OBC, SC/ST have to
be given opportunity to come up and compete in the
mainstream, and enjoy all the benefits and
developments. The Parliament, with a view to
implement the above, enacted ‘The Persons with
Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995’.
31. This court has time and again noted the
State’s obligation to permit overall development
of all its citizens including those who are
differently-abled. Equal opportunities have to be
given to differently-abled persons to come up and
take benefit of public employment. This court in
Union of India and Others versus National
Federation of Blind and Others (2013) 10 SCC 772
has laid down the following in para 23:
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“23. India as a welfare State is committed to promote overall development of its citizens including those who are differently abled in order to enable them to lead a life of dignity, equality, freedom and justice as mandated by the Constitution of India. The roots of statutory provisions for ensuring equality and equalization of opportunities to the differently abled citizens in our country could be traced in Part III and Part IV of the Constitution. For the persons with disabilities, the changing world offers more new opportunities owing to technological advancement, however, the actual limitation surfaces only when they are not provided with equal opportunities. Therefore, bringing them in the society based on their capabilities is the need of the hour.”
32. When the attempts of Physically Handicapped
candidates of OBC Category and Physically
Handicapped candidates of General Category, who
appeared in the Civil Services Examination are
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made equal, and a Physically Handicapped candidate
belonging to OBC Category, in addition to 10 years
relaxation in age also enjoys 3 years more age
relaxation for appearing in the examination, we
cannot agree with the High Court that there is
discrimination between Physically Handicapped
candidates of OBC Category and Physically
Handicapped Candidates of General Category. The
reserved category candidate belonging to OBC are
separately entitled for the benefit which flow
from vertical reservation, and the horizontal
reservation being different from vertical
reservation, no discrimination can be found when
Physically Handicapped candidates of both the
above categories get equal chances i.e. 7 to
appear in the examination.
33. In this context, a reference to judgment of
this Court in Mahesh Gupta and Others versus
Yashwant Kumar Ahirwar and Others (2007) 8 SCC 621
shall not be out of place.
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34. The State of Madhya Pradesh issued an
advertisement for recruitment of handicapped
persons to several posts. The appellants who were
Physically Handicapped, belonging to General
Category got selected. The Respondent No. 1, a
handicapped person belonging to Reserved Category
challenged the selection before the Administrative
Tribunal. The Administrative Tribunal rejected
the claim. Writ Petition was filed by the 1st
Respondent. The High Court set aside the order of
the Administrative Tribunal. High Court directed
the State Government to examine whether posts were
to be filled from the members of the ST Category
or members of the SC Category only or from the
Category of OBC or these posts were for all the
categories as mentioned above. After the judgment
of the High Court, a show cause notice was issued
to the appellants and subsequently their services
were terminated. Appellants have challenged the
abovementioned judgment of the High Court before
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this Court. This Court in the above context came
to consider the vertical and horizontal
reservations. Following was laid down by this
court in para 10, 11 and 12:
“10.The State in terms of Article 16 of the Constitution of India may make two types of reservations-vertical and horizontal. Article 16(4) provides for vertical reservation; whereas Clause (1) of Article 16 provides for horizontal reservation.
11. The State adopted a policy decision for filling up the reserved posts for handicapped persons. A special drive was to be launched therefor. The circular letter was issued only for the said purpose. A bare perusal of the said Circular Letter dated 29-3-1993 would clearly show that the State had made 3% reservation for blinds and 2% for other physically handicapped persons. Such a reservation falling within Clause (1) of Article 16 of the Constitution has nothing to do with the object and purport sought
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to be achieved by reason of Clause (4) thereof.
12. Disability has drawn the attention of the worldwide community. India is a signatory to various international treaties and conventions. The State, therefore, took a policy decision to have horizontal reservation with a view to fulfil its constitutional object as also its commitment to the international community. A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They constitute a special class. The advertisement, however, failed to mention in regard to the reservation for handicapped persons at the outset but, as noticed hereinbefore, the vacant posts were required to be filled up for two categories of candidates; one for Scheduled Caste and Scheduled Tribe candidates and other for handicapped candidates. Handicapped candidates have not been further classified as belonging to Scheduled Castes, Scheduled Tribes and general category candidates.”
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(underlined by us)
35. The appeal was allowed and those Physically
Handicapped candidates, who were selected from
General Category and had their services
subsequently terminated, were directed to be
continued in service.
36. Learned counsel for the respondents has also
contended that in view of the fact that Physically
Handicapped candidates of OBC Category are now
allowed only 7 attempts which is equivalent to
physically-abled candidates of OBC Category hence
Physically Handicapped and Physically-abled OBC
Category candidates have to compete which is
equality between unequals violating Article 14.
The another limb of argument is that the
Physically Handicapped candidates of General
Category and candidates of Physically Handicapped
OBC Category have been permitted equal attempts,
which is nothing but treating unequals as equals
violating Article 14. Relying on Indra Sawhney
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versus Union of India (supra), it is contended
that equality contemplated by Article 14 is not
only when equals are treated equally but also when
unequals are treated unequally. Conversely, when
unequals are treated equally, mandate of equality
before law is breached. He has relied on following
observations made in para 415:
“415: It is no longer necessary to emphasise that equality contemplated by Article 14 and other cognate articles including Articles 15(1), 16(1), 29(2) and 38(2) of the Constitution, is secured not only when equals are treated equally but also when unequals are treated unequally. Conversely, when unequals are treated equally, the mandate of equality before law is breached. To bring about equality between the unequals, therefore, it is necessary to adopt positive measures to abolish inequality. The equalizing measures will have to use the same tools by which inequality was introduced and perpetuated. Otherwise, equalization will not be of the unequals. Article 14 which
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guarantees equality before law would by itself, without any other provision in the Constitution, be enough to validate such equalizing measures. The Founders of the Constitution, however, thought it advisable to incorporate another provision, viz., Article 16 specifically providing for equality of opportunity in matters of public employment. Further they emphasized in (4) thereof that for equalizing the employment opportunities in the services under the State, the State may adopt positive measures for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in such services. By hindsight, the foresight shown in making the provision specifically, instead of leaving it only to the equality provision as under the U. S. Constitution, is more than vindicated.”
37. The present case is not a case of treating
unequals as equal. It is a case of extending
concessions and relaxations to the Physically
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Handicapped candidates belonging to General
Category as well as Physically Handicapped
belonging to OBC Category. Physically Handicapped
Category is a Category in itself, a person who is
physically handicapped be it Physically
Handicapped of a General Category or OBC Category,
suffering from similar disability has to be
treated alike in extending the relaxation and
concessions. Both being provided 7 attempts to
appear in Civil Services Examination, no
discrimination or arbitrariness can be found in
the above scenario. The judgment of the Apex
Court referred to by learned counsel for the
respondent Justice Sunanda Bhandare Foundation
versus Union of India and Another (2014) 14 SCC
383 needs, to be noted.
38. In the above case, the Petitioner, a
charitable trust came up, seeking directions for
implementation of the provisions of The Persons
with Disability (Equal Opportunities, Protection
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of Rights and Full Participation) Act, 1995, in
the writ petition. Under order of the court, the
Commissioners for Persons with Disability of
various States and Union Territories were
impleaded as party-respondent. The court noticed
the counter affidavit filed by on behalf of the
Chief Commissioner for Persons with Disability,
wherein it was stated that the benefit of
relaxation of 5% in marks obtained at the Masters
Level, which was being enjoyed by blind/low-vision
and other visually disabled persons, belonging to
SC/ST Category, have also been extended in General
to all disabled at par with SC/ST to bring parity
among the persons. In para 6 of the judgment para
8 of the counter affidavit was quoted which is as
follows:
“8. The blind/low-vision and other visually disabled persons belonging to SC and ST category are in any case enjoying the benefit of 5% relaxation in marks obtained at the Masters level for appearing in the NET examination
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conducted by UGC. By extending the same relaxation to particularly blind/low-vision and in general all disabled on a par with SC and ST disabled would bring parity amongst all persons with disabilities irrespective of their vertical categories.”
39. This court, noticing the aforesaid counter
affidavit had closed the matter, noticing the
direction of UGC which clearly indicated that
relaxation of 5% which was only earlier available
to blind/low vision and another visually disabled
persons, belonging to SC/ST category had been
extended to all disabled, which was treated as an
action bringing parity among all the persons with
disabilities. The above judgment, in no manner
helps the respondents.
40. Now coming to the judgment passed by Delhi
High Court in Anamol Bhandari (supra), in the
above case Delhi Technology University has
provided 10% of concession of marks in the minimum
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eligibility required for candidates belonging to
SC/ST Category, whereas, relaxation of only 5% was
permissible for people with disability. The
Petitioner, who was Physically Handicapped had
obtained only 52.66% marks and was not being
considered for admission, since he was only
eligible for relaxation of 5% and was required to
have at least 55.00% marks. A writ petition was
filed by the petitioner, seeking a direction to
extend the same relaxation as has been extended to
candidates belonging to SC/ST Category. The Delhi
High Court also referred to the World Bank Report
of May, 2007 'People with disability in
India................... from commitment to
outcome'.
41. Delhi High Court has also, referring to the
judgment of this Court in Writ Petition No. 116 of
1998, titled A. I. Confederation of Blind and
Another versus Union of India and Another,
directed for extension of same relaxation to
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Physically Handicapped candidates which was
extended to SC/ST Category candidates. Para 19 of
the Delhi High Court judgment is as follows:
19. “It will also be relevant to mention that the issue of relaxation of marks to PWD people came up for consideration before the Supreme Court in W.P. (c) No. 116/1998 titled A. I. Confederation of Blind & Anr. Vs. U.O.I. & Anr. (decided on 19.03.2002). It was found therein that the relaxation was given to SC and ST candidates to the extent of 5% partially blind/low vision persons in that petition.
Matter was studied by the Government which filed the counter affidavit agreeing to extend the same benefit to visually handicapped persons as was enjoyed by SC/ST candidates. In the order dated 19.3.2002 passed by the Apex Court in the said petition, relevant portion of the counter affidavit was extracted since this was the stand of the Union of India in that petition, we would like to reproduce the same here as under:
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……..3. It is humbly submitted that in pursuance of Section 32 of the Persons with Disabilities Act(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the appropriate government (Government of India) has updated the list of identified posts. This list has been issued vide Extraordinary Gazette Notification No. 178 dated 30.6.2001. In this list, the posts of University/College/School Teacher for the blind and low-vision have been listed at SI. No. 24-27 on Page No. 592.
6. The Chief Commissioner for Person with Disabilities has taken cognizance of the arrangements provided by the University Grants Commission for persons with disabilities by way of extending 5% relaxation in cut-off marks, appearing in the NET for Junior Research Fellowship and Lectureship. Thus, the arrangement extended by UGC is in consonance with the policy stand taken by Govt. of India in so far as relaxation in minimum standard is concerned. Relaxation in standards has been favoured only when the candidates belonging to reserved categories are not available on
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the basis of the general standard to till all the vacancies reserved for them. 7. The relaxation extended to SC & ST candidates as per Maintenance of Standard 1998 of the Universities, provides for a 5% relaxation from 55% to 50% in the marks obtained at Master’s Degree. Since reservation for the disabled is called horizontal reservation which cuts across all vertical categories such as SC, ST, OBC & General. Therefore, all such blind/low-vision persons who belonged to SC, ST vertical category would automatically enjoy the benefit of 5% relaxation at the minimum qualifying marks obtained at Master’s Degree level. Thus, only the blind and low-vision belonging to OBC & General categories are deprived of the relaxation of 5% marks at masters’ level.
8. The blind/low-vision and other visually disabled persons belonging to SC & ST category are in any case enjoying the benefit of 5% relaxation in marks obtained at the masters’ level for appearing in the NET examination conducted by the UGC. By extending the same relaxation to
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particularly blind/low-vision and in general all disabled at par with SC & ST disabled would bring parity amongst all persons with disabilities irrespective of their vertical categories.”
42. Delhi High Court referring to the aforesaid
stand of the Government of India, had allowed the
Writ Petition and held that 5 % concession in
marks to Physically Handicapped candidates as
opposed to 10 % relaxation to SC candidates is
discriminatory and the disabled candidates were
also entitled for the same relaxation i.e. 10 %.
The above case was on its own fact. The present
case is not a case, wherein the respondents who
are Physically Handicapped Candidates belonging to
OBC Category, are claiming any parity with
relaxation granted to SC/ST candidates. As noted
above, in the Civil Services Examination for SC/ST
candidates, there is no restriction on the number
of attempts. In the present case, the respondents
have based their claim on the grounds that the
attempts for Physically Handicapped candidates
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belonging to the General Category, having been
increased from 4 to 7, attempts for Physically
Handicapped of OBC Category, were required to be
proportionally raised from 7 to 10. Thus the above
judgment of Delhi High Court has no application in
the facts of the present case.
43. Now coming to the judgment of the Delhi High Court, which is under challenge in last two appeals, the Delhi High Court has relied on M. Selvakumar's case (supra) of Madras High Court and had relied on Paragraph No. 6 & 7 of the said judgment.
44. Delhi High Court has also relied on its earlier judgment of Anamol Bhandari (Supra). Para 11 of the judgment of Delhi High Court which is relevant, is as follows:
“11. This Court is of the opinion that as long as the declaration of law in M. Selvakumar (supra) stands and is not set aside, the CAT ought to have followed it. No rule or decision contrary to M. Selvakumar (Supra) was relied upon by the UPSC. This Court too does
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not find any reason to differ from M. Selvakumar (Supra). In this context, the reasoning in Anamol (supra) that persons with disability labour under similar and identical disadvantages as reserved category (SC/ST) personnel is apt. In Anamol (supra), the Court had extensively relied on and drawn on empirical data, such as studies and officially sponsored research papers, to hold that while granting concessions, the equation between persons with disabilities and SC/ST candidates would be justified and called for. In the present case, the equation which the petitioner sought was in the light of the respondents’ decision of 2007 to increase the number of attempts for general category disabled candidates by three. The benefit of such relief, i.e. increase by three attempts in the case of disabled general candidates has resulted in a situation where OBC category disabled candidates are also limited to seven attempts. Further, general category candidates, who do not suffer from disabilities, are permitted four attempts. In the case of SC/ST, there is no restriction in the
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number of attempts. However, in the case of the OBC candidates, the number of attempts permitted to both physically fit candidates and those with disability is seven. This equation, under the circumstances, was held to be discriminatory by M. Selvakumar (Supra) which directed an increase by three attempts.”
45. As noted, we have already observed that the
reasoning given by the Madras High Court in M.
Selvakumar was unfounded. Once the decision of M.
Selvakumar is found to be on erroneous grounds,
judgment of the Delhi High Court cannot stand. The
reliance on Anamol Bhandari(supra) by Delhi High
Court is also not appropriate as explained above.
We, therefore, come to the conclusion that the
view taken by both the Madras High Court and the
Delhi High Court that increasing the number of
attempts for Physically Handicapped candidates
belonging to General Category from 4 to 7 w.e.f.
the 2007 Examination and not proportionally
increasing the number of attempts for Physically
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Handicapped candidates belonging to OBC Category
from 7 to 10, is discriminatory and arbitrary, is
unsustainable.
46. The World Bank Report of May 2007 relied by
counsel for the respondent is also not relevant
for the issue which has come up for consideration
before us. The World Bank Report which has also
been referred by the Delhi High Court in its
judgment in Anamol (supra)gives a detailed figure
of different categories of differently-abled
persons, disability prevalence rate in different
countries and different other factors which does
not throw any light on the issues which are before
us. Hence, reliance placed on the abovementioned
Report is misplaced.
47. There is one more reason due to which we are
unable to subscribe to the view taken by the
Madras High Court and Delhi High Court. The
horizontal reservation and relaxation for
Physically Handicapped Category candidates for
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Civil Services Examination, is a matter of
Governmental policy and the Government after
considering the relevant materials have extended
relaxation and concessions to the Physically
Handicapped candidates belonging to the Reserved
Category as well as General Category. It is not in
the domain of the courts to embark upon an inquiry
as to whether a particular public policy is wise
and acceptable or whether better policy could be
evolved. The Court can only interfere if the
policy framed is absolutely capricious and
non-informed by reasons, or totally arbitrary,
offending the basic requirement of the Article 14
of the Constitution.
48. This court in NTR University of Health
Sciences, Vijaywada versus G. Babu Rajendra Prasad
and Another (2003) 5 SCC 350 has held that how and
in what manner reservation is granted, should be
made a policy matter of decision for State. Such a
policy decision normally would not be challenged.
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Following has been stated in Para 13 of the said
judgment:
“Article 15 and 16 of the Constitution of India provide for enabling provisions. By reason thereof the State would be entitled to either adopt a policy decision or make laws providing for reservations. How and in what manner the reservations should be made is a matter of policy decision of the State. Such a policy decision normally would not be open to challenge subject to its passing the test of reasonableness as also the requirements of the Presidential Order made in terms of Article 371-D of the Constitution of India.”
49. Learned Counsel for the Respondent has also
relied on the Press Note dated 27.04.2007, issued
by Government of India. He contends that the
press note was issued with the object of improving
access and increasing the representation of
physically challenged persons in the Civil
Services. It is useful to refer to first two
paragraphs of Press Note, which are to the
following effect:
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“To improve access and increase the representation of the physically challenged persons in the Civil Services under the central government, the government has decided that any physically challenged persons, selected on the standards as applicable to the non-disabled candidate of his category, will be counted over and above the quota fixed for physically challenged persons. This would be exactly on the lines as it happens for SC/ST/OBC candidates.
It has also been decided that the physically challenged persons belonging to the General Category shall be eligible for seven attempts as against existing four attempts. The physically challenged persons belonging to the OBC Category and SC/ST category would continue to be eligible for seven and unlimited attempts respectively. Additional relaxation of 10 years in the upper age limit for physically challenged persons will be continued.”
50. The above note spelled out the objective and
policy of the Government of India, to which it is
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entitled to frame and implement. The decision to
improve access and increase the representation of
the physically challenged persons is referred to
in the 1st paragraph, as quoted above. The 2nd
Paragraph noticed the decision of the Government
to give 7 attempts to physically challenged
persons belonging to General Category, as against
existing 4 attempts. The Press Note dated
27.04.2007 thus reflects the policy of the
Government and the said policy statement in no
manner helps the respondent in the present case.
51. In view of the foregoing discussions, both
sets of appeals deserve to be allowed. The
judgment of the Madras High Court dated 24.1.2012
in M. Selvakumar versus Central Administrative
Tribunal and Others is set aside and the Writ
Petition is dismissed. Similarly, the judgment of
Delhi High Court dated 13.10.2014 impugned in the
last two appeals is set aside and the Writ
Petition filed by the respondents is hereby
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dismissed. All the appeals are allowed.
……………………………………………J [Ranjan Gogoi]
……………………………………………J [Ashok Bhushan]
New Delhi January 24, 2017.