Union of India Vs M. Selvakumar

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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. 858 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. 859 of 2017 @ Special Leave Petition

(Civil) No. 18420 of 2015, Union Public Service

Commission versus Tushar Keshaorao Deshmukh and

Another and C. A. No. 860 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.

UNION OF INDIA Vs M. SELVAKUMAR

UNION OF INDIA Vs M. SELVAKUMAR