Central Administrative Tribunal - Delhi
Upasana Gupta vs Gnctd on 30 April, 2026
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Item No. 84 O.A. No. 1595/2023
Court No. IV
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 1595/2023
Reserved on : 02.04.2026
Pronounced on: 30.04.2026
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Ms. Upasana Gupta, Aged - 28 Years, (Appointment)
D/o Shri Kailash Prasad Gupta,
Resident of RZ 86/29, New No. / Old No.,
Plot No. - 67, Gali No. 06, Mohan Block,
West Sager Pur, Sager Pur, South West
Delhi - 110046
...Applicant
(By Advocates: Mr. Yogesh Sharma)
Versus
1. Govt. of NCT of Delhi through
The Chief Secretary,
Delhi Secretariat, I.P. Estate,
New Delhi - 110002
2. The Chairman
Delhi Subordinate Services Selection Board (DSSSB)
F-18, Institutional Area, Karkardooma,
Delhi - 110092
3. The Director,
Directorate of Education,
Govt. of NCT of Delhi,
Old Secretariat, New Delhi - 110054
...Respondents
(By Advocate: Ms. Purnima Maheshwari)
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Item No. 84 O.A. No. 1595/2023
Court No. IV
ORDER
Hon'ble Mr. Manish Garg, Member (J) :
The present O.A. has been filed by the applicant seeking the following relief(s):-
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned result dated 20.07.2022 only to the extent by which the PH-OH candidates have not been considered against the unfilled vacancies to the category of PH-VH category and consequently, pass an order directing the respondents to consider the applicant and other suitable candidates of OH category as per merit against the 20 unfilled vacancies of PH-VH category to the post of TGT (English) (Female) in respect of post code 51/21 with all consequential benefits.
(ii) That the Hon'ble Tribunal may further graciously be pleased to pass an order of issue a revised result in respect of PH-OH category by taking into account the 20 VH category vacancies by preparing fresh waiting list and by fixing the revised cut of marks on the basis of the revised number of vacancies in respect of post code 51/21.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation."
2. Highlighting the facts of the case, learned counsel for the applicant submitted that the applicant, being an orthopedically handicapped (OH) candidate, is entitled to reservation benefits under the PWD category and had duly qualified for the post of Trained Graduate Teacher (English) pursuant to Advertisement No. 03/21; however, despite 44 vacancies being earmarked for PWD candidates and equally divided between OH and VH categories, the respondents arbitrarily failed to fill 20 unfilled vacancies of the visually handicapped (VH) category, even though the applicable Government of India OM dated 15.01.2018 mandates interchangeability of such vacancies in case of non-availability of suitable candidates. 2.1. Learned counsel further submitted that such VH vacancies have consistently remained unfilled in previous recruitment cycles (2010, 2013, 2017), thereby creating a backlog, and in similar circumstances the ANKI ANKIT SAKLANI T 2026.05.
SAKL 04 11:12:57 ANI +05'30' 3 Item No. 84 O.A. No. 1595/2023 Court No. IV respondents themselves have earlier filled VH vacancies through OH candidates. The impugned action of not extending this benefit in the present case is thus illegal, arbitrary, violative of statutory provisions and settled law, and deprives the applicant of her rightful consideration. 2.2. Learned counsel for the applicant contended that it is an admitted position in the counter affidavit that for the post of TGT (English) Female under Post Code 51/21, a total of 961 vacancies (EWS-25, UR-381, OBC- 179, SC-188, ST-188) were advertised, including 44 vacancies (22 OH + 22 VH) reserved horizontally for Persons with Disabilities in terms of the RPwD Act, 2016. Out of these, 820 candidates were nominated vide Result Notice No. 1408 dated 20.07.2022. All 22 PH (OH) vacancies (UR-21 & OBC-1) were filled and no vacancy remained under the OH category. However, in the PH (VH) category, only 2 UR candidates could be selected, while 20 vacancies remained unfilled, which pertain to the ST category under vertical reservation due to non-availability of suitable candidates. 2.3 Learned counsel for the applicant relied upon Clause 8 of the Office Memorandum dated 15.01.2018 regarding reservation for persons with benchmark disabilities, which reads as under:-
"8. INTER SE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF DIRECT RECRUITMENT:
8.1 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 reason, 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 following four categories of disabilities, at one percent each to each category:
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(a) blindness and low vision;
(b) deaf and hard of hearing;
(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, 8.2 Only when there is no person with benchmark 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 benchmark disability.
8.3 If the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged with the prior approval of Department of Empowerment of Persons with Disabilities, among the above mentioned four categories. 8.4 If any vacancy reserved for any category of benchmark disability cannot be filled due to non-availability of a suitable person with that benchmark disability or, for any other sufficient reason, such vacancy shall be carried forward as a 'backlog reserved vacancy' to the subsequent recruitment year.
8.5 In the subsequent recruitment year the 'backlog reserved vacancy shall be treated as reserved for the category of disability for which it was kept reserved in the initial year of recruitment. However, if a suitable person with that benchmark disability is not available, it may be filled by interchange among the categories of benchmark disabilities identified for reservation. In case no suitable person with benchmark disability is available for filling up the vacancy in the succeeding year also, the employer may fill up the vacancy by a person other than a person with benchmark disability. If the vacancy is filled by a person with benchmark disability of the category for which it was reserved or by a person of other category of benchmark disability by inter se exchange in the subsequent recruitment year, it will be treated to have been filled by reservation. But if the vacancy is filled by a person other than a person with benchmark disability in the subsequent recruitment year, reservation shall be carried forward for a further period upto two recruitment years whereafter the reservation shall lapse. In these two subsequent years, if situation so arises, the procedure for filling up the reserved vacancy shall be the same as followed in the first subsequent recruitment year. 8.6 The Government establishment shall interchange vacancies only if due process of recruitment viz. proper advertisement of vacancy to fill up the vacancies reserved for persons with benchmark disabilities has been complied with.
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SAKL 04 11:12:57 ANI +05'30' 5 Item No. 84 O.A. No. 1595/2023 Court No. IV 8.7 In order to ensure that cases of lapse of reservation are kept to the minimum, any recruitment of the persons with benchmark disabilities candidates shall first be counted against the additional quota brought forward from previous years, if any, in their chronological order. If candidates are not available for all the vacancies, the older carried forward reservation would be filled first and the current vacancies would be carried forward if not filled up provided that in every recruitment, the number of vacancies reserved for Persons with Benchmark Disabilities including carried forward vacancies will be announced beforehand, for the information of all aspirants."
2.4 Learned counsel for the applicant further submitted that in previous recruitment cycles for the post of TGT (English) conducted in the years 2010, 2013, and 2017, vacancies reserved for the VH category remained unfilled (one in 2010, three in 2013, and three in 2017), which were required to be carried forward, thereby creating backlog vacancies. He submits that even in the present recruitment (2021), 20 vacancies of the VH category have remained unfilled. Placing reliance on the Office Memorandum dated 15.01.2018, learned counsel contends that such unfilled VH vacancies ought to be filled by interchange from the OH category. The failure to do so is stated to be arbitrary, illegal, and contrary to the applicable rules.
3. In the counter affidavit filed on behalf of respondent No. 2, i.e., DSSSB it is submitted that the Board has acted strictly within its statutory mandate, which is limited to recommending candidates based on requisitions received from the indenting/user department, i.e., the Directorate of Education, and it has no authority to alter eligibility conditions, vacancy distribution, or reservation criteria prescribed therein. 3.1. It is also contended that for Post Code 51/21, the Board received requisition for 379 vacancies, including only 16 PH vacancies (with merely 4 earmarked for VH), and no requisition was ever received for the alleged 20 unfilled VH vacancies; therefore, the question of filling such vacancies ANKI ANKIT SAKLANI T 2026.05.
SAKL 04 11:12:57 ANI +05'30' 6 Item No. 84 O.A. No. 1595/2023 Court No. IV or interchanging them with OH category candidates under the DoPT OM dated 15.01.2018 does not arise in the absence of specific instructions from the user department. It is further submitted that the issue raised pertains essentially to the Directorate of Education, and since no direction for interchangeability was communicated, the Board cannot be faulted.
4. Opposing the Original Application, learned counsel for the respondent No. 3 submitted that the present OA is wholly misconceived and liable to be dismissed as the applicant, who belongs to the UR category under PWD (OH), was merely placed at Serial No. 5 in the waiting list and has no vested right to appointment, particularly when all 22 vacancies earmarked for PH (OH) (UR-21 & OBC-1) have already been duly filled. 4.1. Learned counsel contended that the remaining 20 unfilled vacancies pertain exclusively to the PH (VH) category under the ST vertical quota, and in view of the settled legal position under the DoPT OM dated 15.01.2018, horizontal reservation operates within the framework of vertical categories, thereby prohibiting any migration or interchange from ST to UR category; hence, the applicant cannot claim appointment against such vacancies.
4.2. Learned counsel further contended that these unfilled vacancies have already been carried forward and included in the subsequent requisition, and there exists no provision permitting interchange in the manner sought by the applicant. Therefore, the action of the respondents is strictly in accordance with the applicable rules and reservation roster, and the OA deserves to be dismissed.
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SAKL 04 11:12:57 ANI +05'30' 7 Item No. 84 O.A. No. 1595/2023 Court No. IV 4.3. Learned counsel for the respondents placed reliance upon the decision rendered by the Hon'ble High Court of Delhi in W.P. (C) No. 2604/2025 titled Northern Railways and others vs. Amzad decided on 28.10.2025.
5. In rejoinder to the arguments put forth by learned counsel for the respondents, learned counsel for the applicant reiterated that the stand taken by the respondents is misconceived, as the present case does not pertain to appointment from a waiting list or against vacancies arising due to non- joining, but squarely concerns the illegal non-filling of 20 vacancies reserved for PH (VH) category, which admittedly remained unfilled.
6. The learned counsel for the applicant, by way of written submissions, has further contended that the respondents have taken inconsistent and untenable stands in opposing the claim of the applicant. It is specifically argued that the plea of the respondents that the 20 unfilled PH (VH) vacancies pertain exclusively to the ST category is legally unsustainable, as reservation for Persons with Benchmark Disabilities operates horizontally across all vertical categories, and such vacancies are not confined to any particular caste category but are to be adjusted against the respective vertical category of the selected candidate.
6.1. It is further submitted that the reliance placed by the respondents on the alleged closure report dated 20.07.2022 is misconceived and arbitrary, as the same date coincides with the declaration of the impugned result, which is under challenge, and cannot be used to defeat the legitimate claim of the applicant.
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SAKL 04 11:12:57 ANI +05'30' 8 Item No. 84 O.A. No. 1595/2023 Court No. IV 6.2. It is further submitted that the present case is not one of seeking appointment from a waiting list, but concerns the failure of the respondents to fill backlog vacancies of the VH category by applying the principle of inter se exchange, as mandated under the applicable Office Memorandum. It is also contended that no fresh recruitment has been undertaken to fill the said vacancies, and the respondents have not effectively disputed the existence of backlog vacancies, thereby making the non-application of the interchange provision arbitrary, unjustified, and contrary to the governing rules.
7. Heard learned counsel for the respective parties and perused the pleadings available on record.
8. ANALYSIS :
8.1. It is not in dispute that the applicant was placed at Serial No. 5 on the waiting list. The central issue for consideration in the present matter is the proper interpretation and applicability of the provisions relating to inter-se exchange and carry forward of reservation in direct recruitment, as laid down under Clause 8 of the Office Memorandum dated 15.01.2018.
8.2.It is also pertinent to note that Clause 9 of the Office Memorandum dated 15.01.2018 also bears relevance to the adjudication of the present case. Clause 9 reads as follows:
"9. HORIZONTALITY OF RESERVATION FOR PERSONS WITH BENCHMARK DISABILITIES:
9.1 Reservation for backward classes of citizens (SCs, STs and OBCs) is called vertical reservation and the reservation for categories such as persons with benchmark disabilities and ex-servicemen is called horizontal reservation. Horizontal reservation cuts across vertical reservation (in what is called interlocking reservation) and persons selected against the quota for persons with benchmark disabilities have to be placed in the appropriate category viz. SC/ST/OBC/Unreserved ANKI ANKIT SAKLANI T 2026.05.
SAKL 04 11:12:57 ANI +05'30' 9 Item No. 84 O.A. No. 1595/2023 Court No. IV depending upon the category to which they belong in the roster meant for reservation of SCs/STs/OBCs. To illustrate, if in a given year there are two vacancies reserved for the persons with benchmark disabilities and out of two persons with benchmark disabilities appointed, one belongs to Scheduled Caste and the other belongs to Unreserved category, then the SC candidate with benchmark disability shall be adjusted against the SC point in the reservation roster and the Unreserved candidate with benchmark disability against unreserved point in the relevant reservation roster. In case none of the vacancies falls on point reserved for the SCs, the candidate under benchmark disability belonging to SC shall be adjusted in future against the next available vacancy reserved for SCs. 9.2 Since the persons with benchmark disabilities have to be placed in the appropriate category viz. SC/ST/OBC/Unreserved in the roster meant for reservation of SCs/STs/OBCs, the application form for the post should require the candidates applying under the quota reserved for persons with benchmark disabilities to indicate whether they belong to SC/S T/OBC or Unreserved. Thus, reservation for persons with benchmark disabilities is horizontal."
8.3. In view of the foregoing, the question that arises for consideration at this stage is whether an order can be passed directing the issuance of a revised result in respect of the PH-OH category, taking into account the 20 unfilled VH category vacancies, by preparing a fresh waiting list and fixing the revised cut-off marks based on the revised number of vacancies for Post Code 51/21, in the context of the present factual matrix. 8.4. The respondents have also placed on record the category-wise vertical breakup of vacancies, which have already been carried forward in the subsequent advertisement. It is noted that the calculation of vacancies in accordance with the roster falls within the administrative domain of the executive.
8.5. Once the vacancies have been carried forward, the significance of the aforesaid clause 8 diminishes. It is further noticeable that, as per Clause 8.1 of the OM dated 15.01.2018, it is explicitly stated that where, in any recruitment year, a vacancy cannot be filled due to non-availability of a suitable person, the vacancy may be carried forward to the succeeding ANKI ANKIT SAKLANI T 2026.05.
SAKL 04 11:12:57 ANI +05'30' 10 Item No. 84 O.A. No. 1595/2023 Court No. IV recruitment year. In the present case, the recruitment following the year 2021 was undertaken in the succeeding cycle, i.e., in 2023. The OM has to be applied post 2018, in the context of the succeeding cycle in the year 2023.
8.6. The case advanced by the applicant is founded on a hypothetical assumption, as contended and highlighted in para 4.7 of the Original Application, which reads as follows:
"4.7 That it is relevant to mention here that in past for the post of Trained Graduate Teachers (English) the advertisement was issued in the year 2010, 2013 and in 2017 and all these three years the vacancy of visually handicapped became unfilled. It is relevant to mention here that in the year 2010 one vacancy of VH became unfilled in the year 2013 three vacancies of VH category became unfilled and in the year 2017 three vacancies of VH & OH 2 vacancies category is unfilled meaning thereby as per the procedure these unfilled vacancies have been automatically carry forwarded and there are number of backlog vacancies to VH category and in this 2021 selection also twenty vacancies including backlog vacancies became unfilled and therefore, by applying the provision stated in OM dated 15.01.2018 these unfilled vacancies of VH category should be filled up by the OH category and not filling up these vacancies by the OH category candidate is totally illegal and arbitrary and against the law of the land."
8.7. It is also noteworthy that in Northern Railways and Ors. vs. Amzad(supra), the Hon'ble High Court of Delhi observed as follows:
"15. In terms of Rule 11(4) of the Rules, the reservation for PwDs shall be 'horizontal' and the vacancies for the PwBDs shall be maintained as a separate class. We reproduce the same as under:
"11. Computation of vacancies. -
xxx (4) The reservation for persons with disabilities in accordance with the provisions of section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class.
20. From the above, it would be apparent that for giving effect to horizontal reservations, the procedure is first to fill-up the quota for vertical reservation in order of merit and then find out the number of candidates amongst them who belong to the special reservation group of PwD candidates."
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SAKL 04 11:12:57 ANI +05'30' 11 Item No. 84 O.A. No. 1595/2023 Court No. IV 8.8. We also note that the implications of the OM dated 15.01.2018 are to be read in conjunction with the subsequent OM dated 17.05.2022, The relevant portion of the said OM reads as follows:
"―14. HORIZONTALITY OF RESERVATION FOR PERSONS WITH BENCHMARK DISABILITIES 14.1 Reservation for backward classes of citizens (SCs, STs and OBCs) is called ‗vertical' reservation and the reservation for categories such as PwBDs and ex-servicemen is called ‗horizontal' reservation. Horizontal reservation cuts across vertical reservation (in what is called interlocking reservation) and persons selected/promoted against the quota for PwBDs have to be placed in the appropriate category viz. SC/ST/OBC/ Unreserved, depending upon the category to which they belong in the roster meant for reservation of SCs/STs/OBCs. To illustrate, if in a given year, there are two vacancies reserved for the PwBDs, and out of two PwBDs promoted, one belongs to Scheduled Caste and the other belongs to Unreserved, the SC candidate with benchmark disability shall be adjusted against the SC point in the reservation roster and the Unreserved candidate with benchmark disability against the unreserved point in the relevant roster. In case none of the vacancies falls on point reserved for the SCs, the candidate under benchmark disability belonging to SC shall be adjusted in future against the next available vacancy reserved for SC.
14.2 Since the PwBDs have to be placed in the appropriate category, viz. SC/ ST/OBC/Unreserved in the roster meant for reservation of SCs/STs/OBCs, the application form (in respect of Departmental examination for promotion) for the post should require the candidates applying under the quota reserved for PwBDs to indicate whether they belong to SC/ST/OBC or unreserved."
8.9 We also observe that it is a settled proposition of law that the mere inclusion of a candidate in an additional or waiting list does not confer any indefeasible right to appointment, nor does it cast a corresponding obligation upon the State to fill up all notified or unfilled vacancies from such list. The discretion to operate a waiting list or to fill remaining vacancies is vested in the employer, subject only to the condition that such discretion is exercised in a fair, reasonable, and non-arbitrary manner, and in accordance with the governing rules. In this regard, reliance placed on the judgment of the Hon'ble Supreme Court in 8.10. State of Karnataka & Ors. v. Bharathi S., (2024) 15 SCC 530, is apposite. Further, it is ANKI ANKIT SAKLANI T 2026.05.
SAKL 04 11:12:57 ANI +05'30' 12 Item No. 84 O.A. No. 1595/2023 Court No. IV noteworthy that the Office Memorandum dated 15.01.2018 does not contemplate or provide for interchange of vacancies at the stage of operation of the waiting list.
9. CONCLUSION :
9.1. In view of the aforesaid, we do not find any merit in the present O.A. The same is accordingly dismissed.
9.2. Pending M.A.(s), if any, shall stand disposed of. No costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/as/
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