Himachal Pradesh High Court
Prabhu Kumar vs State Of H.P. & Ors on 22 September, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CWP No. 3634 of 2019 Reserved on: 22.9.2020.
Decided on: 29.9.2020.
Prabhu Kumar ......Petitioner.
Versus
State of H.P. & ors. .....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? 1 Yes.
For the petitioner : Mr. Sanjeev Bhushan, Senior Advocate with Mr. Rajesh Kumar, Advocate.
For the respondents : Mr. Ashok Sharma, Advocate General with Mr. Ranjan Sharma, Mr. Vikas Rathore, Mr. Desh Raj Thakur, Addl.
AGs, Ms. Seema Sharma, Mr. Bhupinder Thakur & Ms. Svaneel Jaswal, Dy. AGs for respondents No. 1 and 2.
Mr. Vikrant Thakur, Advocate, for respondent No. 3.
Jyotsna Rewal Dua, Judge Whether the respondents could prescribe 60% as the upper limit of disability for determining the eligibility of physically handicapped candidates for the post of Assistant 1 Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 2District Attorney reserved under the provisions of the Rights of Persons with Disabilities Act, 2016, is the main question raised .
in this writ petition.
2. Facts.
2(i) Under the Recruitment and Promotion Rules, the post of Assistant Public Prosecutor is to be filled up 100% by direct recruitment. The qualifications required for this post are :
"A. Essential qualifications:
i) Professional Degree in Law from a recognized University or its equivalent and
ii) At least two years experience as an advocate.
B. Desirable qualification(s):
Knowledge of customs, manners dialects of Himachal Pradesh suitability for appointment in the peculiar conditions prevailing in the Pradesh."
Column No. 16 of the R&P Rules provides for reservation for the post as under:
"16. Reservation: The appointment to the Service shall be subject to orders regarding reservation in the service for Scheduled Castes/Schedules Tribes/other Backward Classes/other categories of persons issued by the Himachal Pradesh Government from time to time."
2(ii) Requisition for filling up 20 posts of Assistant District Attorneys (ADA)(class-I gazetted) by way of direct recruitment on contract basis, was sent by respondent No. 2 [Director of Prosecution(Home)] to respondent No. 3-Himachal Pradesh Public Service Commission. Column No. 18 of this requisition gives following category wise split up of twenty posts:-
::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 318(a) Are any posts reserved for 1. General =09 .
SC/ST/OBC/Ex-serviceman or any 2. Schedule Caste =03 other category of candidates? Please 3. OBC =03 give clear details of the reservations. 4. Ex-servicemen(Gen.) =02
5. Ex-servicemen (ST) =01
6. Physically Handicapped =02 (having not less than 40% disability and more than 60% disability in one leg or one arm).Total 20
Two out of 20 requisitioned posts were meant for physically handicapped persons with disability ranging from 40% to 60% in one leg or one arm.
2(iii) On the basis of above requisition, respondent No. 3 issued an advertisement on 2.5.2018, inviting applications for various posts in different departments including 24 posts of Assistant District Attorneys [20(requisitioned)+04 backlog posts].
Two posts were reserved for persons belonging to physically handicapped category 'having not less than 40% disability and more than 60% disability in one leg or one arm' . Instruction No.
(ix) of the advertisement provided that "if any person with disability requires scribe/reader, having disability of 40% or more, he/she has to request for the same in writing to the Commission alongwith copy of disability certificate issued by the competent authority at least seven days prior to the screening test for the concerned post. Such applications will be entertained on merit and as per rules."
::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 42(iv) Petitioner is a practicing Advocate and member of Shimla Bar Association. Medical certificate dated 9.3.2010 issued .
by State Medical Board reflects the petitioner as physically disabled person with 90% permanent disability. The nature of his disability is 'left shoulder disarticulation' and falls under Locomotor impaired category. Petitioner participated in the selection process. He qualified the written test on 4.7.2019 under general (physically handicapped) category, for which, two posts were reserved by the respondents in the advertisement dated 2.5.2018. Against these two posts reserved for physically handicapped category, only five candidates including the petitioner were declared successful in the written test. Petitioner was called and he appeared before the Interview Board on 2.8.2019. Respondent No. 3 thereafter issued a press note on 3.8.2019 recommending his name to respondent No. 2 for appointment to the post of Assistant District Attorney against General (physically handicapped) category. Respondent No. 2 vide notification dated 19.9.2019 issued appointment orders in favour of the candidates recommended by respondent No. 3.
Petitioner was however left out from this list. Appointment order was not issued in his favour. Upon information sought by the petitioner under Right to Information Act, respondent No. 2 vide its communication dated 19.9.2019 informed respondent No. 3 that Shri Prabhu Kumar (petitioner) was ineligible for ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 5 appointment as Assistant District Attorney as "he does not fulfill essential requirements mentioned at point No. 18 of the .
requisition as per which a candidate should not be having less than 40% disability and more than 60% disability in one leg or one arm. On screening of the candidature of Shri Prabhu Kumar it has been found that he is 90% disabled (left shoulder disarticulation), which is above the maximum limit fixed under handicapped quota."
Aggrieved against the rejection of his candidature at the stage of issuance of appointment order, petitioner has preferred instant writ petition, with following prayers:-
"1. That appropriate writ order or direction may very kindly be issued directing the respondent No. 1 to implement the recommendation made by the respondent No. 3 i.e. H.P. Public Service Commission, whereby, the name of the petitioner has been recommended for the post of Assistant District Attorney (Class-I Gazetted), by further directing the respondent No. 1 to appoint the petitioner as Assistant District Attorney (Class-I Gazetted) and the communication dated 19th September, 2019 (Annexure P-11) may very kindly be quashed and set aside.
2. That appropriate writ order or direction may very kindly be issued and the condition of not having more than 60% disability in one leg or one arm as provided against column- 18 of the requisition (Annexure P-2) may very kindly be quashed and set aside, by further quashing the similar condition imposed in advertisement No. 8 of 2018 (Annexure P-4), dated 2nd May, 2018, in the interest of law and justice."
3. We have heard learned Senior Counsel for the petitioner, Learned Advocate General for respondents No. 1 and 2, learned Counsel representing respondent No. 3 and gone through the record.
::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 63(i) Factual position in the case is not in dispute.
Petitioner participated in the selection process for two posts of .
Assistant District Attorney, reserved for physically handicapped category. Despite recommendation of his name by H.P. Public Service Commission for appointment to the post, respondents No. 1 and 2 did not issue the appointment order in his favour on the ground that the physically disability of the petitioner exceeds the 3(ii) r to limit of 60% prescribed in the requisition as well as in the advertisement.
Two questions arise in this writ petition for determination:-
a. Whether the respondents could have fixed a maximum cap of disability for determining the eligibility of a candidate belonging to physically handicapped category for the posts in question?
b. Whether after participating in the selection process under the impugned advertisement, is it open for the petitioner to challenge the fixation of maximum eligible limit of physical disability by the respondents in the requisition as well as in the advertisement?
4. First Point.
4(i) It will be appropriate, to first refer to the relevant provisions of The Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as 'Act'). Under Section 2(r) of the Act, 'person with benchmark disability' means a person with not less ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 7 than forty percent of a specified disability. The Section reads as under:
.
"2(r) "persons with benchmark disability" means a person with not less than forty percent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority."
'Specified disability' has been defined under Section 2(zc) to mean the disability as specified in the schedule. Under the schedule attached to the Act, Locomotor disability forms part of physical disability and is, therefore, a specified disability under the Act.
Petitioner possesses the minimum benchmark laid under Section 2(r) of the Act as he suffers from a specified disability which is not less than 40%.
4(ii) Section 33 of the Act provides for identification of the posts for reservation. The section reads as follows:-
"33. Identification of posts for reservation.--The appropriate Government shall--
(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;
(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and
(iii) undertake periodic review of the identified posts at an interval not exceeding three years."::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 8
In accordance with provisions of Section 33, the appropriate government has to identify the posts for reservation, .
which can be held by respective category of persons with benchmark disability in respect of such reserved vacancies in accordance with provisions of Section 34. In relation to 'State government', the 'appropriate government' under Section 2(b)(ii) means the State Government. State government has to constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts.
State government in the instant case has apparently identified the post of Assistant District Attorney to be filled up from persons with physical disability of one leg or one arm. The only restrictive condition under Section 33 readwith Section 2(r) is that a physically handicapped person to become eligible for such post must have minimum disability of 40%.
Section 34 of the Act deals with reservation in following manner:
"34. Reservation.--(1) Every appropriate Government shall appoint in every Government establishment, not less than four percent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent for persons with benchmark disabilities under clauses (d) and
(e), namely:--
(a) blindness and low vision;
(b) deaf and hard of hearing;::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 9
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular .
dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:
Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:
Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.
(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five 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 five categories with the prior approval of the appropriate Government.::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 10
(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of .
persons with benchmark disability, as it thinks fit."
Under the second proviso to Section 34(1), appropriate government in consultation with the Chief Commissioner of the State government, as the case may be, by issuing a notification can exempt any government establishment from provisions of this section. It is admitted case of the parties that no such exemption notification has been issued for respondent-Home department and it is for this reason that two posts of ADAs have been advertised for physically handicapped persons in accordance with Sections 33 and 34 of the Act.
The Rights of Persons with Disabilities Act, 2016 only prescribes a minimum benchmark of 40% disability for a physically handicapped person to become eligible for the posts meant for physically handicapped category reserved under the provisions of the Act. There is no ceiling on the maximum extent of disability in the Act. Petitioner has also placed on record an office memorandum dated 22.6.2017 issued by the government of Himachal Pradesh, Department of Personnel. The memorandum has been issued with a view to consolidate the existing instructions and to bring them in line with Act of 2016.
Clause-9 thereof pertains to degree of disability for reservation and is as under:-
::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 11"9. DEGREE OF DISABILITY FOR RESERVATION: Only such persons would be eligible for reservation in .
services/posts who suffer from not less than 40 percent of the relevant disability. A person who wants to avail benefit of reservation would have to submit a Disability Certificate issued by a competent authority. At the time of initial appointment against a vacancy reserved for persons with benchmark disabilities, the appointing authority shall ensure that the candidate is eligible to get the benefit of reservation."
4(iii) When the Act does not provide for fixing any maximum cap of physical disability, even then would it still be permissible for the respondents to fix a ceiling limit of disability for applying for a post reserved for physically disabled person under the provisions of the Act, is the question raised herein.
Respondents No. 1 and 2 in their reply have submitted that a person with minimum disability of 40% would not ipso-facto become entitled for automatic appointment. The head of the establishment has the competency to prescribe the conditions or restrictions, which can be imposed for assessing the suitability of a person for a post keeping in view the nature of the job, work, duties, function to be performed by the incumbent of a post.
There can be no quarrel with this position. Even under clause-9 of the memorandum dated 22.6.2017, only the minimum benchmark of disability i.e. 40% as is also the benchmark under the Act, has been provided. It has been though expressed therein that at the time of initial appointment, the appointing ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 12 authority shall ensure that the candidate with benchmark disability is eligible to get the benefit of reservation. The .
provisions of the Act readwith memorandum issued by the State government gives the authority to the appointing authority to ensure at the stage of appointment that the selected candidate is eligible for the benefit of reservation.
(2019) 4 Supreme Court Cases 237 , titled V. r to Surendra Mohan versus State of Tamil Nadu and others was a case concerning legality of 50% disability fixed as maximum limit of eligibility for partially blind and deaf categories of disabled persons for the post of Civil Judges. Following issues were framed by the Apex Court for consideration:
"12.1.(1) Whether the appellant who was suffering with disability of 70% (visual impairing) was eligible to participate in the selection as per notification dated 26.08.2014 of the Tamil Nadu Public Service Commission?
12.2.(2) Whether the condition of 40%-50% disability for partially blind and partially deaf categories of disabled persons is a valid condition?
12.3.(3) Whether the decision of the State Government vide letter dated 08.08.2014 providing that physically disabled persons that is partially deaf and partially blind to the extent of 40%-50% disability are alone eligible, is in breach of the provisions of 1995 Act and deserves to be set aside?"
It was noticed by the Hon'ble Apex Court that the writ petitioner having 70% disability had not challenged the disability range of 40% to 50%, fixed in the advertisement for partially ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 13 blind and deaf persons. It was also observed by the Hon'ble Apex Court that the maximum eligibility limit of 50% disability .
for physically handicapped category for the post of Judicial Officers was fixed in consultation with the High Court and that High Court being the guardian of subordinate judiciary was well aware about the requirements for appointment in judicial service and therefore has a say in the eligibility of a person. Para No. 40 has being relevant in this regard is reproduced hereinafter:
" 40. From the facts as noticed above, the State Government consulted both the Public Service Commission as well as the High Court in reference to appointment of disabled persons on the post of Civil Judge (Junior Division). There is consensus in the view of State Government, Public Service Commission and the High Court that partially blind and partially deaf persons suffering with disability be allowed to participate in the recruitment, who has disability of 40%-50%. The High Court being well aware about the requirements for the appointment in the judicial service and it being guardian of subordinate judiciary, has a say in the eligibility of a person, who seeks appointment on the post of Civil Judge (Junior Division). Judicial service being part of Public Service, the State in consultation with the High court is fully empowered to lay down the eligibilities for selection on the post of Civil Judge (Junior Division). The Government Order dated 08.08.2014 supplements the Rules, 2007 and in no manner contravene any of the provisions of the Rules. The condition of having 40%- 50% disability was prescribed by the Public Service Commission as per the Government Order issued by the State of Tamil Nadu after consultation with the High Court. The above condition in no manner can be said to be invalid. Learned counsel for the appellant has submitted that restricting the disability to 40%-::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 14
50% in reference to persons having partial blindness is clearly denying the of reservation as provided .
under Section 33 of the Act, 1995 and is not in accord with Section 33 of the Act."
Noticing Section 33 of the 1995 Act, it was held by the Hon'ble Apex Court that it is well within the power of appointing authority to prescribe eligibility conditions looking to the nature of the job to be performed by the holder of a post. A Judicial Officer in the State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgment. Therefore, stipulating a maximum limit of 50% disability in hearing/visual impairment as a condition to become eligible for the post is a legitimate restriction and said prescription does not violate any statutory provision nor contravenes any of the provisions of the 1995 Act. It will be apposite to extract hereinafter paras-44, 45 and 46:-
"44. The legal position with regard to reservation of posts for persons with disability is now well established that every appropriate Government is obliged to reserve posts for persons or class of persons with disability. In the present case, we are concerned with partial disability. The present is not a case where the respondent has not reserved the post for partial disability as required by Section 33 of the 1995 Act. Thus, requirement of reservation as mandated by Section 33 is clearly fulfilled. The issue is regarding eligibility of appellant to participate in the selection and as to whether the requirement in the advertisement that only those, who suffer from disability of 40%-50% are eligible, is contrary to the 1995 Act or is in breach of any ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 15 statutory provision. The State, which is appointing authority of Public Service in consultation with the .
High Court with reference to post of Civil Judge (Junior Division) can very well lay down the essential eligibilities and requirement for the post. When the State, High Court and Public Service Commission are of the view that disability, which is suitable for appointment on the post of Civil Judge should be between 40%-50%, the said prescription does not violate any statutory provision nor contravene any of the provisions of the 1995 Act. It is well within the power of appointing authority to prescribe eligibility looking to the nature of the job, which is to be performed by holder of a post.
45. A judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable. The High Court in its additional statement has incapsulated the functions and duties of Civil Judge in following words:-
"7. That in so far as the area of discharge of functions and duties of the judicial officers viz., Civil Judges is concerned this involves performances of strenuous duties:- they have to read documents, pleadings and ascertain facts and issues; monitor proceedings to ensure that all applicable rules and procedures are strictly followed without any violation; advise advocates, litigants and Court personnel regarding conduct, issues, and proceedings; participate in judicial proceedings to help in resolving disputes; preside over hearings and hear allegations made by plaintiffs and defendants to determine whether the evidence supports the charges or the averments made; write decisions on cases independently after reading and analysing evidence and documents; while recording ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 16 evidence observe the demeanour of witnesses etc. Impaired vision can only make it extremely difficult, .
even impossible, to perform any of these functions at all. All these apart, he/she has to perform duties such as conducting inquiries, recording dying declarations, going through identification parades, record statements of victims, conduct in-camera proceedings, passing orders on remand and extension and other administrative functions. In so far as District judges are concerned, apart from performing their usual judicial duties, they have to perform a myriad administrative duties also. Therefore, creating any reservation in appointment for those with disabilities beyond the 50% level is far from advisable as it may create practical and seemingly other avoidable complications. Moreover, given the need to prepare judgments based on the case papers and other material records in a confidential manner, the assistance of a scribe or the like completely takes away the secrecy and discreetness that come with the demands of the post."
46. The reasons as given above by the respondent No.3 fully justified the requirement of disability to the extent of 50% which is reasonable, just and fair. High Court did not commit any error in dismissing the writ petition filed by the appellant. In view of the foregoing discussions, we, thus, came to the conclusion that prescription of disability to the extent of 40%-50% for recruitment for the post of Civil Judge (Junior Division) was valid and does not contravene any of the provisions of the 1995 Act or any other statutory provision. Issue Nos. 2 and 3 are answered accordingly. We, thus, do not find any merit in this appeal and the same is accordingly dismissed."
Provisions of 2016 Act involved in the instant case vis-a-vis fixing ceiling limit of disability are not different to the ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 17 relevant provisions of now repealed 1995 Act which was under
consideration in the aforesaid judgment. In view of law laid down .
in V. Surendra Mohan's case supra, it is no more res-integra that prescribing a maximum eligibility limit of disability for the persons belonging to physically handicapped category persons for the posts reserved for them under the provisions of the Act, does not contravene any of the provisions of the 2016 Act.
4(iv) The only aspect which now remains to be examined in the instant case is regarding the mode and manner of determining the maximum limit of disability. In (2009) 14 SCC 546, titled Union of India vs. Devender Kumar Pant , Hon'ble Apex Court held that intention of the Disabilities Act is not to accept reduced standards of efficiency in performance of functions of a particular post merely because the employee suffers from a disability. In the instant case respondents No. 1 and 2 in their reply have simply submitted that head of every establishment has the competency to prescribe conditions or restrictions for assessing suitability of a person for a post, keeping in view the nature of job, work, duties, functions to be performed by the incumbent of a post. The action of respondent No. 2 in placing a cap of 60% as benchmark disability of one leg/one arm for the post of ADA has been sought to be justified on the ground that ADA is required to perform multifarious duties and functions. The respondents have not placed on record any ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 18 material to show as to how and by adopting what process, under which of the provisions of the Act/instructions etc., the ceiling .
limit of 60% disability was fixed by them for determining the eligibility of a candidate belonging to physically handicapped (locomotor impaired) category for the post of Assistant District Attorney. How the issue was deliberated, who deliberated the issue, whether any Committee of experts in the concerned field of medicine (locomotor disability) was constituted to determine the maximum eligibility limit of disability for the post of ADA, whether any decision in that regard was taken, is not forthcoming from the reply. In fact, following para of the reply reflects the confusion writ large in respondent No. 2-department about fixation of 60% disability as maximum eligibility limit for the post of ADAs:-
".........it is submitted that the upper limit of disability of 60% has been incorporated keeping in view the legitimate aim on suitability of a candidate to a particular post. However, the matter is being taken up with the Department of Social Justice & Empowerment i.e. Administrative Department to provide the detail of identification of posts and extent of disability and the replying respondent, reserves its right to file supplementary reply at any stage hereinafter, as and when the outcome of the deliberations is received...."
Respondents, it appears are themselves not clear about the extent of maximum disability which should have been prescribed for physically handicapped category candidates for ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 19 the post of ADA. The Act is a beneficial legislation enacted for the welfare of persons with disabilities. It was incumbent upon .
the respondents to deliberate over the issue with experts for determining the maximum extent of disability vis-a-vis the eligibility of disabled persons for the posts in question. Such determination should not be solely left to the discretion of the employer. We have the example of this case where even after the completion of selection process, respondents are themselves not certain about soundness of prescribing 60% as the maximum eligible limit of disability. We, therefore, direct the respondent-
State through respondent No. 1 personnel department to issue necessary directions to all concerned departments etc. for henceforth fixing maximum eligibility limit of disability for persons belonging to physically handicapped category, for the posts reserved for them under 2016 Act, only after due deliberation over the issue with Department of Social Justice & Empowerment in consultation with committee of experts in the concerned field of medicine to be constituted by the State for the said purpose.
4(v) Second point.
Following the ratio of V. Surendra Mohan's case supra, we have already held that maximum limit of disability can be fixed to determine eligibility of candidates belonging to physically handicapped category for the posts reserved for them ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 20 in accordance with provisions of 2016 Act. In the instant case, requisition was sent by respondent No. 2 to respondent No. 3 .
with ceiling limit of 60% on the extent of disability. The advertisement was accordingly issued by respondent No. 3 on 2.5.2018 for 24 posts of Assistant District Attorneys wherein two posts were reserved for physically handicapped category with disability range between 40% to 60% in one leg or one arm.
Petitioner was aware of these terms and conditions of the advertisement. He though suffered from 90% permanent locomotor disability of left shoulder disarticulation and as such was not eligible for the posts, yet he participated in the selection process. It is only after rejection of his candidature after culmination of the selection process, that he preferred this writ petition challenging the maximum eligibility limit of disability fixed at 60% under the requisition and in the advertisement. The law in respect of challenging the conditions of advertisement after participating in the selection process is well settled. In this regard, it would be profitable to refer to (2019) 15 SCC 633, titled Union of India and others Vs. C. Girija and others and connected matters, wherein following previous judgments of Hon'ble Apex Court on the issue were noticed viz. Ashok Kumar Vs. State of Bihar (2017) 4 SCC 357; Chandra Prakash Tiwari Vs. Shakuntala Shukla (2002) 6 SCC 127; of India Vs. S. Vinodh Kumar (2007) 8 SCC 100; Munindra Kumar Vs. Rajiv ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 21 Govil (1991) 3 SCC 368; Rashmi Mishra Vs. M.P. Public Service Commission (2006) 12 SCC 724; Amlan Jyoti Borooah .
Vs. State of Assam (2009) 3 SCC 227; Manish Kumar Shahi Vs. State of Bihar (2010) 12 SCC 576 ; Madan Lal Vs. State of J&K (1995) 3 SCC 486 ; Marripatti Nagaraja Vs. State of A.P. (2007) 11 SCC 522 ; Dhananjay Malik Vs. State of Uttaranchal (2008) 4 SCC 171;K.A. Nagamani Vs. Indian Airlines(2009) 5 SCC 515 ; Vijendra Kumar Verma Vs. Public Service Commission (2011) 1 SCC 150 ; Ramesh Chandra Shah Vs. Anil Joshi (2013) 11 SCC 309 ; State (UT of Chandigarh) Vs. Jasmine Kaur (2014) 10 SCC 521 ; Pradeep Kumar Rai Vs. Dinesh Kumar Pandey (2015) 11 SCC 493 and Madras Institute of Development Studies Vs. K. Sivasubramaniyan (2016) 1 SCC 454. The broader principles which can be extracted from the above judgments, are:- (i) when a candidate appears in the examination without objection and is subsequently found to be not successful, his challenge to the selection process is precluded; (ii) question of entertaining a petition challenging an examination would not arise where a candidate had appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was lacuna therein merely because his or hers result was not palatable; (iii) those who consciously take part in the selection process cannot thereafter turn around and ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 22 question the method of selection and its outcome; conduct of such persons disentitle them from questioning the selection .
process; (iv)after participating in the selection process, challenge to the same after declaration of result cannot be allowed. The candidates cannot approbate and reprobate at the same time.
Having fixed 60% disability as maximum eligibility limit for physically handicapped candidates for the posts in question, having completed the entire selection process under these conditions prescribed in the requisition as well as in the advertisement in question, respondents at this stage cannot even be directed to consider and examine the case of the petitioner for appointment to the post in question, who suffers from 90% disability vis-a-vis his suitability for the post in question. There may be many physically handicapped persons with disability in one arm or leg ranging between 60% to 90%, who might not have applied for the post in view of the express conditions of eligibility stipulated in the advertisement in question. Thus no relief can be granted to the petitioner at this stage.
5. The sum and substance of above discussion is:-
a) Respondents have the right to fix the extent of maximum disability for determining the eligibility of candidates belonging to physically handicapped category for the posts reserved for them under The Rights of Persons with Disabilities Act, 2016. The ceiling limit of disability, however, has to be ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP 23 determined by the employer after due deliberations with Department of Social Justice & Empowerment and in consultation .
with committee of experts in the concerned field of medicine to be constituted by respondent No. 1 for the purpose. We accordingly direct the State government through respondent No. 1 to forthwith issue necessary instructions in this regard to all concerned departments for compliance henceforth.
b) Petitioner with 90% permanent disability (locomotor impairment @ left shoulder disarticulation), having participated in the selection process for the post of Assistant District Attorney, under the advertisement dated 2.5.2018 wherein physically handicapped candidates with disability ranging from 40% to 60% in one arm or one leg were eligible for the posts meant for physically handicapped quota, is now estopped from challenging the fixation of maximum limit of 60% disability in the advertisement after the conclusion of selection process.
With above observations and directions, the writ petition is disposed alongwith pending application(s), if any.
(Tarlok Singh Chauhan), Judge.
(Jyotsna Rewal Dua), Judge.
September 29 th, 2020, ( vs) ::: Downloaded on - 29/09/2020 20:17:25 :::HCHP