Rajasthan High Court, Jodhpur & Anr. vs Neetu Harsh & Anr.

72 posts – Among the same, two posts were kept reserved for persons with disabilities – Private respondent applied indicating her category as “General” and in the column provided for indication of the claim under the Differently Abled Category had mentioned “No” – Private respondent was declared successful in the Preliminary examination, main examination and the interview – She had obtained 136 marks and 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 – Subsequent thereto, the private respondent made representation with a request to consider her candidature under the category for differently abled persons as visually impaired and to provide appointment – Representation was not accepted – Writ petition – High Court directed appellants to consider the candidature of the private respondent for appointment in the Civil Judge cadre against the two vacancies reserved for disabled candidates – Appellants contended that disability certificate relied on by the private respondent showed description of permanent disability as Hemiplegia-Non-functional hand – However, in the representation made by her she claimed that she was visually impaired and reference was made to the same disability certificate – On appeal, held: In the instant case, whether the disability claimed by the private respondent is a locomotor disability or visual impairment is itself a debatable question, 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 be justified – It is 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 – However, when the claim was not made and there are debateable issues, the direction of the High Court cannot be considered justified – More so, appellants had acted in terms of Rajasthan Judicial Service Rules, 2010 and appointed a candidate from the other category for the vacant disabled category – So, when such appointment has been made, disturbing such candidate at this juncture not justified – Thus, order passed by the High Court unsustainable – Constitution of India – Arts.233 and 234 r/w. proviso to Art. 309. Allowing the appeal, the Court

HELD: 1. Though it is contended by the private respondent that it was a mistake in indicating “No” against the Column 3.1 – ‘Person with Disability’, what is necessary to be taken note is that against Column 2.4 – ‘Category’, it has been stated as “General”. That apart the examination fee fixed for General candidates is Rs. 250/- while for the eligible disabled applicant it is fixed at Rs. 50/-. The private respondent in addition to indicating her category as ‘General’ has paid the fee of Rs. 250/- as applicable. Further, though the disability certificate dated 05.07.2010 is presently relied upon, there is no material to indicate that the same was enclosed along with the application or produced till the completion of interview. On this aspect, to contend that the private respondent cannot make a contrary claim, the appellants herein has relied on the decision in the case of J&K Public Service Commission vs. Israr Ahmad. [Para 15][841-A-D]

2. Further the decision in the case of Registrars General, Calcutta High Court vs. Shriniwas Prasad Shah & Ors. 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 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. It is also pointed out that even as per the disability certificate dated 05.07.2010 sought to be relied on at present, the description of permanent disability is shown as Hemiplegia – Non-functional hand. It is in that background pointed out that though that is the nature of disability indicated therein which will be locomotor disability, in the representation dated 28.11.2016 which was made belatedly the private respondent has claimed that she is visually impaired, more than 80% and the reference made is to the same disability certificate dated 05.07.2010. The private respondent no doubt has referred to an article relating to Hemiplegia wherein reference is also made to the difficulties in seeing. The very nature of the contention would indicate that in the instant facts the claim in the application under the category should have been made and the disability certificate was required to be produced along with the application since the nature of the disability was a matter which was to be considered by the recruiting authorities concerned, if need be on medical examination. If visual impairment as a consequence of Hemiplegia was to be considered, the percentage of disability by visual impairment will also be relevant and the same was required to be determined at the appropriate stage. [Paras 16 and 17][841-H; 842-A-F]

3. 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 this Court could empathise with the cause of the private respondent the nature of direction issued by the High Court in any event cannot be considered as justified. This is more so, in a circumstance where the appellants had acted in terms of the Rajasthan Judicial Service Rules, 2010 when no other claim was available and had appointed a candidate from the other category and when such appointment has been made, disturbing such candidate at this juncture also will not be justified. Hence for all the afore stated reasons, this Court finds the order dated 04.05.2017 passed by the High Court to be unsustainable and the same is accordingly set aside. [Para 18][842-F-H; 843A-B] Government of India through Secretary & Anr. v. Rani Prakash Gupta (2010) 7 SCC 626 : [2010] 7 SCR

851; Union of India & Anr. v. National Federation of the Blind (2013) 10 SCC 772 : [2013] 9 SCR 1023; Rajeev Kumar Gupta & Ors. v. Union of India & Ors. (2016) 13 SCC 153 : [2016] 3 SCR 407; V. Surendra Mohan v. State of Tamil Nadu & Ors. (2019) 4 SCC

237 : [2019] 1 SCR 954; J&K Public Service

Commission v. Israr Ahmad (2005) 12 SCC 498;

Registrars General, Calcutta High Court v. Shriniwas Prasad Shah & Ors. (2013) 12 SCC 364 : [2013] 3 SCR 211 – referred to.