REPORTABLE                   

  IN THE SUPREME COURT OF INDIA

  CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO.    6696     OF 2019 (Arising out of SLP (Civil) No.18973 of 2017)

Rajasthan High Court, Jodhpur & Anr.       .…Appellant(s)

Versus

Neetu Harsh & Anr.                     ….  Respondent(s)

J U D G M E N T

A.S. Bopanna,J.          

      Leave granted.      

2.   The appellants herein were the respondent Nos. 2

and 3 in the writ petition bearing DBCWP No.692 of 2017

which was considered and disposed of by the High Court

of  Judicature for  Rajasthan at  Jodhpur.  Through  the

order dated 04.05.2017 the writ petition was allowed and

the appellants herein were directed to consider the

candidature of the private respondent herein for

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appointment on the post of Civil Judge­cum­Judicial

Magistrate in the Civil Judge Cadre against the two

vacancies reserved for disabled candidates in the

Rajasthan Judicial Service Examination, 2016 and

provide appointment as per merit of said category, if she

is otherwise eligible.  The said order and direction of the

High Court is assailed herein primarily on the contention

that the private respondent herein had not applied

against the vacancies advertised for the physically

challenged   category but had applied as a General

Category candidate and as per the merit list she was not

entitled to be appointed as there were more meritorious

candidates in the General Category and the appointment

having been made, the process has been completed.

3. The brief facts are that the appellants herein had

issued a Notification calling for applications for

recruitment to the post of Civil Judge­cum­Judicial

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

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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             

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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.

4. 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

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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. In that background the consideration

required herein is as to  whether the  High  Court  was

justified in its  approach  in applying  the  proposition of

providing opportunity to Differently Abled Persons as

provided under PWD Act, notwithstanding the fact that             

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the issue presently related to the appointment of the

Judicial Officer in the backdrop of   the provisions

contained in the Rajasthan Judicial Service Rules

governing the same and the vacancy is filled up.  Further,

the issue also is as to whether the direction is justified

when no application was filed seeking benefit of the

reserved category.

5. We have heard Ms. Meenakshi Arora, senior

advocate for the appellants, Mr. Pallav Shishodia, senior

advocate for the private respondent and perused the

appeal papers.

6. The  Notification  dated  12.03.2016  issued  by the

appellants herein inviting online application in the

prescribed format for the competitive exam for the direct

recruitment to  Civil  Judge Cadre,  2016 relating to the

reservation and the procedure for consideration of

Differently Abled Persons reads as hereunder:

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Total No.  of  Posts

Year Reserved Persons with  disabilities (Differently abled)

70 Current  Vacancies

37 out  of which 11  posts  reserved for  woman

11 out  of which 3 posts  reserved for  women

8 out of  which 2  posts  reserved  for  woman

14 out  of which 4 posts  reserved for  woman

Out of 70  vacancies, 2 posts  reserved for  persons  with  disabilities

2 Backlog ­ ­ 2  (Backlog)

­ ­

“3. Regarding the reservation for disabled persons:

A. According to Rajasthan persons with Disabilities (Equal  Opportunities,  Protection of Rights and Full Participation) Rules, 2011, aforesaid posts shown to have been reserved for disabled persons are reserved for applicants having Locomotor Disability and Cerebral Palsy (L.D & C.P) and visual impaired.   Aforesaid reserved posts have been reserved for applicants having under mentioned disabilities.

Locomotor Disability And Cerebral Palsy (L.D. & C.P)

      O.L. – One leg affected (R or L)

      B.L. – Both legs affected (Mobility not to be restricted)

              O.A. – One Arm affected (R or L)

      Visual Impaired (Blind & Low Vision)

       B – Blind (Mobility not to be restricted)

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       LV –  Low Vision (Mobility  not to  be restricted)”

“5.     In case of non­availability of fit and suitable candidate for the posts reserved for women and disabled candidates, these posts shall be filled as per the procedure and manner prescribed in Rajasthan Judicial Services Rules, 2010 (as amended).

6.   A  married woman candidate in order to receive benefit of reserved category shall have to present caste certificate (S.C./S.T./O.B.C.) issued on the basis of the name, place of residence and income of her father.”     

“5.     Exam fee:

        Applicant shall have to pay exam fee in accordance with his/her category.

A.  Exam fee for the candidates belonging to general  category,  creamy  layer from backward class/special backward class/applicants from other States shall be Rs.250/­.

B. Examination fee for the candidates of non­creamy layer from other backward class/special backward class shall be Rs.150/­.

C. Examination fee of Candidates belonging to scheduled caste/scheduled tribe of Rajasthan and all eligible disabled applicants shall be Rs.50/­.”    

7. In response to the above said Notification the

private respondent submitted her application and in

Column 2.4 – ‘Category’ it was indicated as “General”, in

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Column 3.1 – ‘Persons with Disability’ – it was indicated

as “No”.   Further in the declaration it is stated that the

private respondent has carefully read the terms and

conditions of the Notification,  instructions and relevant

rules before filling up the application form online and to

abide by them.  It is also declared that the informations

made are true, complete and correct.  In the Column for

payment of the application fee the sum of Rs.250/­

prescribed as the fee for General Category Candidate

along  with the commission charges of Rs.10/­, in all

amounting to Rs.260/­ is paid.   Pursuant to the

application being in order the admission card was

generated providing  the  Roll  No.5046 and  the category

was indicated therein as “General”.  It is on the said basis

the private respondent had appeared for the preliminary

examination, main examination and the interview.  Based

on the same the statement of marks of all the candidates

in the order of merit was published on 15.11.2016.  It is

only thereafter the private respondent made a

representation dated 28.11.2016 wherein she claims that

she is visually impaired more than 80% and the Medical             

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Board issued the disability certificate dated 05.07.2010.

It is further indicated in the representation that she had

inadvertently not mentioned the physically handicapped

category  in the  application  form.  She has also  stated

that  during the  previous year she  had  appeared  as a

candidate under the category of Persons with Disabilities

and therefore she be considered against the other vacant

post.

8. The learned senior counsel for the appellants has

contended that the private  respondent did not  make a

claim under the quota for the category of Differently

Abled Persons in the application and the claim presently

made is merely because only one of the posts was filled

up by a Differently Abled Person with locomotor

disability and the other post if there was a claim would

have been for visually impaired and as such the private

respondent is claiming visual impairment at this stage.

As per the Rajasthan Judicial  Service  Rules,  2010 the

unfilled seat will have to be filled up in accordance with

the normal procedure and, such vacancy will not be

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carried forward to the subsequent year.   In that

circumstance, it  is contended that out of the vacancies

which  was reserved for  Differently Abled Persons, the

second vacancy which was available to a visually

impaired person has been filled in by a more meritorious

candidate from the General category  in the absence of a

visually impaired candidate, which is the normal

procedure referred to in the Rules.

9. The learned senior counsel for the private

respondent on the other hand has made a detailed

reference to the provisions of the PWD Act, 1995, more

particularly to the definitions as contained in Sections 2

(b) to (e), (o), (p), (t) as also to Sections 18 to 32, 33 and

36 as contained therein.

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

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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

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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.

11. However, one aspect of the matter which is to be

taken note is with regard to the contention of the learned

senior counsel for the private respondent that the

mandamus issued by the High Court is sustainable since

the vacancy could not have been filled up by any other

category but ought to have been carried forward and in

that circumstance if the provision as contained in Section

36 of PWD Act is kept in view,   the action of the

appellants herein in operating Rule 10(4) of the

Rajasthan Judicial Service Rules, 2010  would not be

sustainable.   It is,   therefore, contended by the learned

senior  counsel for the private  respondent  that in such

circumstance in any event one post reserved for the

Differently Abled person in the selection for the year 2016

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should have been kept vacant to be carried forward to the

next recruitment for want of candidate and in that

background keeping in view Section 36 of the PWD Act,

instead of carrying forward to the next recruitment the

same being ordered to be filled up by an available

Differently Abled person is justified.

12.      In order to appreciate this aspect of the matter it

would be necessary to take note of the provision as

contained in  Section  36  of the PWD Act, 1995  which

reads as hereunder:

“Vacancies not filled up to be carried forward –  Wherein any recruitment year any vacancy under section 33 cannot be filled up due to non­ availability of  a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only  when there is no person  with disability available for the post in that year, the employer shall fill  up  the vacancy by appointment  of  a person, other than a person with disability.

Provided that  if the nature of vacancies  in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories

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with the prior approval of the appropriate Government.”

13. In that backdrop what is to be taken note is also

the Rajasthan Judicial Service Rules, 2010 framed under

the Notification dated 18.01.2010 which is in exercise of

the power conferred by Article  233 and 234 read with

proviso to Article 309 of the Constitution of  India. The

Notification reads as hereunder;

              “ DEPARTMENT OF PERSONNEL

               (A­Gr.2)

 NOTIFICATION

Jaipur, January 18, 2010

G.S.R.81.­ In exercise of the powers conferred by Article 233 and 234 read with proviso to Article 309 of the Constitution of India and all other powers enabling him in this behalf, the Governor of Rajasthan in consultation with the Rajasthan Public Service Commission and the High Court of Judicature for Rajasthan hereby  makes the following rules regulating recruitment to the posts in, and the conditions and other matters related to the service of persons appointed to the Rajasthan Judicial Service, namely:­ ”

 In the said Rajasthan Judicial Service Rules, Rule 10(4)

reads as hereunder:

       “(1)   x x x x x x

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(2)   x x x x x x

(3)   x x x x x x  

(4)   Reservation of posts for Persons with Disabilities as defined in the Rajasthan Employment of Disabled Persons Rules, 2000, shall be 3% category­wise which shall be horizontal and shall  be available  only  at the time of initial recruitment.   In the event of non­availability of eligible and suitable persons with disabilities in a particular year, the vacancy so reserved for them shall be filled in accordance with the normal procedure and such vacancies shall not be carried forward to the subsequent year.

Provided that  the total  number of  posts reserved for all such categories in a direct recruitment shall not exceed 50% of the total vacancies.”

14. 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

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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 vis­a­vis 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             

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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.

15. 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

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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.  On this aspect, to contend that

the private respondent cannot make a contrary claim, the

learned senior counsel for the appellants herein has

relied on the decision in the case of J&K Public Service

Commission vs. Israr Ahmad  (2005) 12 SCC 498

wherein it is held in para 5 as hereunder:

  5. We have considered the rival contentions advanced by both the parties. The contention of the first respondent cannot be accepted as he has not applied for selection as a candidate entitled to get reservation. He did not produce any certificate along with his application. The fact that he has not availed of the benefit for the preliminary examination itself is sufficient to treat him as a candidate not entitled to get reservation. He passed the preliminary examination as a general candidate and at the subsequent stage of the main examination he cannot avail of reservation on the ground that

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he was successful in getting the required certificate only at a later stage. The nature and status of the candidate who was applying for the  selection could only  be  treated alike and once a candidate  has chosen to opt for the category to which he is entitled, he cannot later change the status and make fresh claim. The Division Bench was not correct in holding that as a candidate he had also had the qualification and the production of the certificate at a later stage  would  make him entitled to seek reservation. Therefore, we set aside the judgment of the Division Bench and allow the appeal. No costs.

16. Further the decision in the case of  Registrars

General, Calcutta High Court vs. Shriniwas Prasad

Shah & Ors.  (2013) 12 SCC 364 is relied on, wherein

this Court has disallowed the claim in a case where in

the application the category of reservation was indicated

but certificate was not produced and the fee applicable to

general  candidate  was paid.   In  addition, the learned

senior counsel for the appellants herein also refers to the

inherent contradictions in the claim of the private

respondent apart from the fact that the claim for

consideration under the category reserved for Differently

Abled Persons is not made.   

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17. 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 – Non­functional 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             

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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.

18. 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

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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.   Hence for all the afore stated

reasons, we find the order dated 04.05.2017 passed by

the  High  Court to be unsustainable and the same is

accordingly set aside.

19. Accordingly, the appeal is allowed with no order as

to costs.   All pending applications stand disposed of.

……………………….J. (R. BANUMATHI)

……………………….J.                                               (A.S. BOPANNA)

New Delhi, August 29, 2019

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