Rajasthan High Court - Jodhpur
Neetu Harsh vs State & Ors on 4 May, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 692 / 2017
Neetu Harsh D/o Shri Vijay Kumar Harsh,, Aged About 30 Years,
R/o Magharam Colony, Gajner Road, Bikaner
----Petitioner
Versus
1. The State of Rajasthan Through the Secretary,, Department of
Law & Legal Affairs, Government of Rajasthan, Jaipur
2. Rajasthan High Court, Jodhpur Through Registrar General,,
Rajasthan High Court, Jodhpur
3. Rajasthan High Court, Jodhpur Through Registrar
(Examination),, Rajasthan High Court, Jodhpur
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. MS Singhvi, Sr. Advocate with Mr. B.K.
Vyas and Mr. Hemant Dutt
For Respondent(s) : SK Vyas, AAG and Dr. Sachin Acharya
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI
Judgment
Per Hon'ble Mr. Justice Gopal Krishan Vyas
Date of order :: 4th May, 2017
The instant writ petition has been filed by the petitioner
having 80% physical disability for seeking direction to modify the
final result notice dated 15.11.2016 and to consider her
candidature under physically handicapped category against one
unfilled post reserved for physically handicapped category
candidate and to decide the representation dated 28.11.2016
(Annex.11) in accordance with law and provide appointment on
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the post of Civil Judge-cum-Judicial Magistrate against post of Civil
Judge Cadre kept reserved for the physically handicapped
category.
As per facts of the case, the petitioner acquired qualification
of graduation from Maharaja Ganga Singh University, Bikaner in
the year 2006 And further acquired qualification of L.L.B. in the
year 2009 and L.L.M. in the year 2011 from the same University.
The petitioner faced eye sight problem, therefore, after
examination of her eyes by the medical board of three doctors of
PMB Hospital, Bikaner. The Board declared that she is having 80%
disability and issued certificate Annex.5 of permanent disability on
5.7.2010.
The petitioner being eligible to appear in the competitive
examination of Civil Judge Cadre applied under the category of
physically handicapped category in the Rajasthan Judicial Service
year 2013 and she was allowed to appear under the category of
persons with disability in the preliminary examination and after
getting requisite marks in preliminary examination, allowed to
appear in main examination under roll no.3843. Under aforesaid
roll number she appeared in the main examination held on 14-
15.6.2014. In the said competitive examination, cut off marks
for the category of physically disabled candidate was not declared,
therefore, preferred DBCWP NO.8364/2014 against non-
declaration of cut off marks of the persons with disability
category, however, the said writ petition was withdrawn.
In the year 2016 again 72 posts were advertised for
appointment on the post of Civil Judge-cum-Judicial Magistrate in
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Civil Judge Cadre by the respondents and out of 72 vacancies, 2
vacancies were kept reserved for persons with disabilities as per
the Persons with Disabilities (Equal Opportunities, Protection and
Rights and Full Participation) Act, 1995 and Rajasthan Persons
with Disabilities (Equal Opportunities, Protection and Rights and
Full Participation) Rules, 2011 (hereinafter referred to as the Act
of 1995 and the Rules of 2011 for short). The petitioner having
requisite qualification again applied in pursuance of the said
advertisement for direct recruitment to the post of Civil Judge and
Judicial Magistrate in Civil Judge Cadre. In the online application
form submitted by the petitioner in column no.2.4 filled up her
category as "general", but inadvertently by mistake, mentioned
"no" against column no.3.1 which is meant for the person with
disability (differently abled). The petitioner was allowed to appear
in the preliminary examination and declared successful to appear
in the main examination and allowed by the respondents High
Court to appear in the main examination while issuing admission
card of roll no.5046.
The petitioner appeared in the main examination, the result
of main examination was declared on 15.11.2016. In the said
notice the respondents disclosed the cut off marks of each
category including persons with disabilities category. The said
notice of result is placed on record as Annex.10, in which cut off
marks for persons with disabilities category was shown as 138
marks and petitioner obtained total 136 marks, therefore, her
name was placed at S.No.137 in the final result notice dated
15.11.2016.
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It is submitted by the petitioner that in the notice of final
result dated 15.11.2016 only one candidate Renu Motwani
(S.No.57) was considered for appointment under the category of
disable persons in spite of the fact that two posts were kept
reserved for physically handicapped category candidates. After
declaration of final result on 15.11.2016 to rectify the mistake a
representation was filed by the petitioner on 28.11.2016 with
request to consider her candidature under the category of persons
with disability and if found suitable as per merit, then to provide
appointment on the post of Civil Judge-cum-Judicial Magistrate in
Civil Judge Cadre under the competitive examination, 2016.
In response to the representation filed by the petitioner it is
informed through SMS that your representation dated 28.11.2016
to consider of your candidature under the category of persons with
disability in Civil Judge Cadre Examination, 2016 has been
considered and rejected. Being aggrieved by the said rejection,
the petitioner has preferred this writ petition for seeking direction
to the respondents to rectify the bonafide mistake and consider
her candidature under the category of physically handicapped
candidate on the ground that in previous examination of 2013 she
was allowed to appear under the category of physically
handicapped candidate but not selected in the competitive
examination, 2016 two vacancies were kept reserved and only one
candidate Renu Motwani has been appointed under the disabled
category and one post in the said category is still lying vacant,
therefore, on the basis of certificate of disability which is said to
be issued on 5.7.2010 considered her case against unfilled
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vacancy, kept reserved for physically disabled candidates.
Learned counsel for the petitioner submits that the Act of
2011 was enacted by the Parliament with specific provision under
Section 36 of the Act of 1995 that 3% vacancies in every
employment shall be kept reserved for the physically handicapped
candidates and if that vacancy not filled in, in particular year, then
said vacancy should not be filled-in amongst general category
candidate or other candidates and the vacancy should be carry
forward to the next year. It is argued that the fact of the
petitioner's disability was well within the knowledge of the
respondents because earlier petitioner was allowed to appear
under the category of physically handicapped candidate in the
same examination. In the representation filed by the petitioner it
is prayed that she belongs to physically handicapped category and
vacancy is still available, therefore, even if by mistake the
petitioner mentioned "no" in the category meant for physically
disabled, then it was the duty of the respondents to consider her
case against unfilled vacancy of disabled candidate while taking
into consideration the fact that earlier she appeared under the
category of physically handicapped person and due to bonafide
mistake mentioned "no" in the column prescribe for the category
of physically handicapped person.
The learned Senior Advocate Sh. MS Singhvi assisted by BK
Vyas and Hemant Dutt vehemently argued that the purpose of
enactment of the Act of 1995 is to provide certain benefits to the
disabled candidates so as to improve their status in the society.
The State Government and all the departments of Central
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Government are under obligation to comply the provisions of the
Act of 1995 so as to grant opportunity to the reserved category of
physically handicapped but in this case, of course, a mistake was
committed by the petitioner in the subsequent examination for not
mentioning her category of physically handicapped, but soon after
the declaration of the result, a representation was filed to consider
her case under the category but it has been rejected only on the
ground that in the application form, petitioner did not claim
reservation for appointment under physically handicapped
category candidate.
The learned senior advocate Sh. MS Singhvi vehemently
argued that once two vacancies were kept reserved for the
disabled candidates then obviously efforts were to be made by the
respondents so as to fill up both the vacancies but here in this
case, as per reply filed by the respondents the said vacancy has
been filled in by providing appointment to the general candidate
which is in contravention of the spirit of 1995. It is also argued
that under Article 15 of the Constitution of India it is the duty of
the respondents as well as of this court to see the welfare of the
candidates belonging to reserved category of physically
handicapped because mistake can be committed by any person,
therefore, even if in the application form the petitioner did not
disclose her category as physically handicapped category and
appeared as general candidate then also in the event of getting
information in the representation filed by the petitioner, it was the
duty of the respondents to consider her prayer to consider her
candidature against the reserved category because she was
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allowed to appear under the category of physically handicapped
candidate in previous examination of 2013 to achieve the intention
of the enactment of the Act of 1995 because the Parliament has
enacted the Act of 1995 so as to provide some relief to the
disabled candidates. It is also argued that very harsh decision to
reject the representation has been taken by the respondents
knowing well that petitioner secured 136 marks and candidate
secured 138 marks has already been provided appointment
against two posts kept reserved for physically handicapped
category and no other physically disabled candidate is available,
therefore, direction may be issued to the respondents to consider
the case of the petitioner under the category of physically
handicapped persons and provide appointment in the Civil Judge
Cadre.
Learned counsel for the petitioner invited our attention
towards the following judgments:
1. State of Rajasthan & Ors. Vs. Ms. Jamna Rajpurohit
reported in 2014(1) WLN 348 (Raj.)
2. Seema Kumari Sharma (Mrs.) Vs. State of H.P. & Ors.
reported (1998) 9 SCC 128
3. The State of Rajasthan & Anr. Vs. Smt. Madhubala (DBSAW
No.271/2000), decided on 20.10.2000
4. Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection
Board & Anr. Reported in (2016) 4 SCC 754
5. Union of India Vs. National Federation of Blind and Ors
reported in 2013 (10) SCC 772
6. Rajiv Kumar Gupta Vs. Union of India reported in 2016(13)
SCC 153
7. Ashok Kumar Giri Vs. Union of India & Ors reported in
(2016) 6 SCC 511
While inviting attention towards the aforesaid judgments and
the provisions of the Act, it is submitted that denial of
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appointment to the petitioner under the category of physical
handicapped against the quota kept reserved is unconstitutional,
therefore, respondents may be directed to consider the case of
the petitioner for appointment under the physically handicapped
category.
Per contra, learned counsel Dr. Sachin Acharay appearing
for the respondents nos.2 and 3 argued that petitioner with open
eyes filled up the online application form and appeared in the
competitive examination as General candidate conducted by the
respondents for recruitment on the post of Civil Judge-cum-
Judicial Magistrate in Civil Judge Cadre. The petitioner applied as
a general (non-Ph. Category) and participated in the selection
process without any protest then how she can claim any right to
consider her candidature under the category of persons with
disability and to get appointment against two posts notified for
Civil Judge-cum-Judicial Magistrate Examination, 2016 under the
category of physically handicapped. Learned counsel for the
respondents further submitted that online application form was
filled in by the petitioner on 4.4.2016. Her candidature was
accordingly processed and admission card was issued on 9.9.2016
for appearing in the examination as General category candiate.
Right from 3.4.2016 to 15.11.2016 though she was having ample
opportunity for making application for rectification of her mistake
in her online application form but no steps were taken nor any
application for correction was filed, therefore now she cannot
claim consideration against the vacancy kept reserved for
physically handicapped candidates. The learned counsel for the
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respondents submitted that the representation of the petitioner
has rightly been considered and rejected in the light of the
decision of Division Bench of this Court passed in DBCWP
No.3331/2014 : Sunil Bhanwariya Vs. Registrar, Examination Cell,
Rajasthan High Court, Jodhpur & Ors decided on 12.5.2014 in
which it is held that it is incumbent on the candidate to read the
instruction of the advertisement carefully and once the form is
duly filled in and submitted the respective candidante will not be
given any opportunity to rectify or make any changes if the details
so submitted are wrongly supplied. The crux of argument of
learned counsel for the respondents is that once the petitioner
appeared as general candidate and did not raise her grievance
uptill the declaration of result then how she can be permitted to
make a prayer to consider her candidature against the unfilled
vacancy kept reserved under the category of physically
handicapped. It is also argued that appearing in the same
examination earlier under the physically handicapped category
does not create any right in favour of the petitioner because she
herself filled in the online application form and failed to mention
that she belongs to the person with disability category, therefore
at this stage, when process of appointment has come to an end,
the petitioner cannot claim appointment as a matter of right on
the ground that she secured 136 marks in the said examination
and entitled for appointment against the unfilled vacancy kept
reserved for physically handicapped and because the unfilled post
has already been filled in by the respondents.
Learned counsel for the respondents further our invited
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attention towards two more judgments in the case of Akram Khan
Vs. Rajasthan High Court, Jodhpur & Anr. (DBCWP
No.7410/2016), decided on 21.7.2016 and in the case of
Managing Director, Ajmer Vidhyut Vitran Nigam Ltd, Ajmer Vs.
Hitesh Kukmar & Anr (DBSAW No.85/2015), decided on 1.8.2016
and submits that no case is made out in favour of the petitioner so
as to consider her case against the vacancy kept reserved for
disabled candidates because petitioner herself guilty not to claim
reservation under the category of physically handicapped person.
After hearing learned counsel for the parties, first of all it is
required to be observed that respondents are not disputing the
fact that in the competitive examination for the same post held in
the year 2013, the petitioner was allowed to appear under the
physically handicapped category because she is having 80%
disability which is evident from the certificate (Annex.5), placed
on record issued on 5.7.2010 by the medical board of PBM
Hospital, Bikaner. There is no argument of the petitioner that
mistake has been committed by the respondents or any candidate
having less percentage of marks has been provided appointment
under the category of physically handicapped. The petitioner has
come out with the case that earlier she was allowed to appear
under the category of physically handicapped candidate and as per
provisions of the Act of 1995, specifically enacted by the
Parliament for upliftment of disabled persons, a reasonable
decision was to be taken by the respondents so as to rectify the
bonafide mistake committed by the petitioner, in not mentioning
the category of physically handicapped in the online application
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form.
Upon consideration of entire material available on record and
pleadings it is nowhere said by respondents that certificate issued
by the competent authority declaring the petitioner as disabled
candidate, having 80% disability is not genuine or forged
document. More so, the respondents are not disputing the fact
that petitioner was allowed to appear in the same competitive
examination for the same post in the year 2013 under the
category of physically handicapped. The only ground in the reply
is that recital of any earlier recruitment process, the same not
being subject matter of this writ petition doing no aid to the
petitioner. It is true that earlier writ petition was filed by the
petitioner for not declaring cut off marks because she appeared
under the category of physically handicapped was withdrawn, but
it is also admitted fact that petitioner again appeared in the same
examination subsequently conducted by the respondents for
recruitment on the post of Civil Judge-cum-Judicial Magistrate in
pursuance of advertisement dated 12.3.2016. It is also not in
dispute that two vacancies were kept reserved for physically
handicapped candidate and out of two vacancies, only one
vacancy is filled in by way of providing appointment to the
candidate Renu Motwani whose name is appearing at S.no.57 in
the final result. The main question which arose for consideration
in this writ petition is that "whether a candidate in spite of the fact
that she belongs to the physically handicapped category did not
mention the category of disable person in the online application
form, can be considered against the unfilled vacancy, which is
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kept reserved for physically handicapped candidate even after
inviting attention by her subsequently that she belongs to the
physically handicapped candidate and post is still in existence.
In view of the reply, it is required to be observed that the
respondents cannot be held liable for the mistake committed by
the petitioner for not mentioning her category of physically
handicapped in the online application form, but at the same time,
when it has come to the knowledge of the respondents when
representation was filed by the petitioner much before the
appointment orders were issued that due to bonafide mistake
petitioner has failed to mention her category of physically
handicapped, the appointment cannot be denied. The Parliament
has enacted the Act purposefully with a view to provide some
relief and uplift the conditions of physically handicapped
candidates. There is no dispute candidates are required to
furnish correct information in the application form, but here in this
case, it is beyond imagination that if a candidate belong to
physically handicapped category, appeared in the previous
examination under the said category will not claim any reservation
in the subsequent examination being physically handicapped
candidate. It is expected from the candidate that mistake should
not be committed by them, but how a disabled person can be
equated with the general category candidate so as to not commit
any mistake. If a person declared disabled by the competent
authority having 80% disability can commit a mistake, therefore,
the Parliament purposefully enacted the Act for such type of
disabled persons, therefore, obviously at the time of inviting
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attention by the disabled candidate to the competent authority
that by bonafide mistake he was failed to mention the category,
then the decision was required to be taken sympathetically by the
authorities and the said decision should not be in bracketed form
of the rules because there is provision in the Act not to fill the
vacancy kept reserved for physically handicapped persons from
the general category or other reserved category. We have failed
to understand the stand taken by the respondents that the
reserved vacancy has already filled in from other category,
therefore, no direction can be issued to consider her candidature
in the Ph.category.
We are living in democracy where elected persons are
representing citizens including weaker section of the society. The
Parliament has enacted the Act of 1995 so as to provide
opportunity to the disabled candidates for there upliftment,
therefore, it is the duty of all the authorities including
respondents to take decision with the spirit of the Act of 1995.
The representation of the general category candidate can be
rejected if mistake is committed by him but at the time of
considering the representation of disabled candidate, it is the duty
of the respondents to consider not only the disability of the
candidate but also the fact that Parliament has enacted the Act of
welfare and to provide relief to the candidate having physically
deficiency.
We have considered the case of the petitioner from another
angle that the petitioner being woman disabled candidate
appeared in the competitive examination of the same post under
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the category of disabled candidate and even preferred the writ
petition before this Court because cut off marks of physically
handicapped category was not declared for the reasons that
horizontal reservation is provided for the physically handicapped
candidate. As per facts stated in the reply it was well within the
knowledge of the respondents that earlier being disabled category
candidate the petitioner preferred writ petition before this Court
seeking direction to declare cut off marks of physically
handicapped candidate and if it was well within the knowledge of
the respondents, then obviously, at the time of decision the
representation of the petitioner the bonafide mistake committed
by her was to be ignored but while giving information on SMS, it is
informed to the petitioner that your representation has been
considered and rejected. The purpose of enacting the Act of 1995
is to give some relief to the disabled candidates. The petitioner not
only the woman candidate, but also, she was allowed to appear in
the examination earlier under the category of physically
handicapped candidate and preferred writ petition before this
court so as to declare cut off marks of the physically handicapped
candidate, therefore, obviously, it was well within the knowledge
of the respondents that petitioner belongs to the physically
handicapped candidate, therefore, when this fact was mentioned
by the petitioner in her representation, then it was the duty of the
respondents to consider the said fact so as to provide appointment
to the petitioner against the vacancy, which is kept reserved for
physically handicapped candidate.
We have perused the judgment rendered by the Division
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Bench of this court in the case of State of Rajasthan Vs. Ms.
Jamna Rajpurohit (supra). In that case, the petitioner Ms. Jamna
Rajpurohit submitted in her writ petition that pursuant to an
advertisement dated 27.2.2012 (Annex.12), the applications were
invited by the Rajasthan Public Service Commission, Ajmer in the
year 2012 for direct recruitment on the post of Teacher Grade-III.
She applied for the post by filling up online application form on
24.3.2012 and at the relevant time, she was falling in general
category and filled up form accordingly. She was allowed to
appear in the examination on 2.6.2012 but unfortunately, after
appearing in the examination, her husband expired on 18.6.2012,
thereafter, result of the examination was declared on 24.8.2012.
In the meantime, a representation was submitted by her on
2.7.2012 to consider her candidature under widow category
because her husband expired during process of selection. The
respondents rejected the prayer of Ms. Jamna Rajpurohit,
therefore, the writ petition preferred by her being SBCWP
No.8899/2012 in which the learned Single Judge after considering
all the facts issued directions to consider her candidature for
appointment on the post of Teacher Grade-III, II Level in Social
Study subject as per merit under the widow category. The State of
Rajasthan preferred special appeal against the said judgment of
learned Single Judge dated 29.8.2012 in which the Division Bench
of this Court in the judgment reported in 2014(1) WLN 348 (Raj.)
dismissed the special appeal and uphold the judgment of learned
Single Judge. The paras nos.12 to 14 of the said judgment reads
as follow:
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"12. It remains a matter of hard reality and of fact that each
of the writ-petitioners was a married woman with her
husband very much alive at the time of her filling up the
application form. They had submitted the form and filled in
the category as applicable. It had been an unfortunate
aspect that after filling up of the forms, they lost their
respective husbands. The cases of the writ-petitioners could
not have been considered as that of seeking any 'permission'
to change the category. In fact, their category got changed
for vis major over which, they had no control; rather they
would have never wished it to happen.
13. Vis major i.e., act of God, refers to an occurrence taking
place exclusively due to natural causes, and being of
external nature, and further being the one which cannot be
anticipated or provided against. Sudden demise of a person
remains essentially a matter beyond the control and
anticipation of human beings. Such an unfortunate event
could nevertheless happen, as has happened in the present
cases. The appellants cannot be considered justified in
suggesting that such an unfortunate event can also be
ignored by them with a perfunctory reference to the
stipulation like the one referred above. It remains trite that
the law does not envisage nor countenance an absurdity or
impossibility. The propositions of the appellants, running
against the very fundamentals of law, are required to be
rejected.
14. We are further of the view that when the appellants have
provided for a special reservation to a category of persons
requiring help and support of the State i.e., the women
suffering widowhood, any provision in that relation ought to
be applied with a practical approach and with due respect to
the ground realities. The very object behind reservation for
widow category would be defeated, if not rendered illusory, if
the peculiar facts and circumstances of the case of a woman
suffering widowhood after filling up of the application form
but before completion of recruitment process, are ignored
and she is not considered for appointment in widow
category. We are at one that the observations in the orders
impugned that in these cases, the concerned authorities
were rather under an obligation to consider the candidature
of the writ-petitioners in widow category. In view of the
above, these appeals stand dismissed summarily, subject, of
course, to the observations foregoing."
In the case of Seema Kumari Sharma Vs. State of HP & Anr.
Reported in (1998) 2 SCC 128 the Hon'ble Supreme Court while
quashing the judgment of tribunal held that failure to furnish the
certificate alongwith the application form does not disentitle her to
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claim the status for consideration of award of 10 marks and issued
direction to declare the result of the petitioner and further
ordered that her case for appointment shall be considered in
accordance with rules. The following adjudication is made by the
Hon'ble Supreme Court, which reads as under:
"1. Leave granted.
2. We have heard learned Counsel on both sides.
3. These appeals by special leave arise from the order
of the Central Administrative Tribunal, Shimla Bench made in
O.A. No. 619/95 and the review order. The admitted position
is that the Director of Education issued a notice for Junior
Basic Teacher's Training. The criteria for selection was 100
marks based on the percentage of marks obtained in matric
or equivalent examination. 20 marks for candidates
belonging rural areas and 10 marks for candidates belonging
to backward panchayat were allotted. Similarly, 10 marks
were allotted for candidates belonging to IRDP families.
Though the appellant claimed to belong to IRDP family, the
authorities have not considered her claim and consequently
did not award 10 marks as required under the criteria. When
the appellant filed the writ petition, the High Court dismissed
the same holding that the appellant had not produced the
certificate along with the application and, therefore, she is
not entitled to the above status. When we directed the
appellant to produce the record, she made the certificate a
part of the record. Unfortunately, it does not bear the date of
issue; but we find that she has been given serial number of
the IRDP family. In view of the fact that serial numbers are
ascribed to all the candidates in the order, we are of the
view that her failure to furnish the certificate along with the
application does not disentitle her to claim the status for
consideration of award of 10 marks. Pursuant to the interim
direction granted by this Court, the appellant has already
appeared for the examinations conducted but her result has
not been announced.
4. Therefore, the appeals are allowed; the order of the
Tribunal stands set aside. There shall be a direction to
declare the result and her case for appointment will be
considered in accordance with the rules, if she is selected.
No costs."
In DBSAW No.271/2000 (State of Rajasthan Vs. Madhubala),
decide on 20.10.2000 the Division Bench of this court, dismissed
the special appeal against the judgment dated 6.1.2000 passed by
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the learned Single Judge in SBCWP No.2962/1999 in which while
following the judgment of the Hon'ble Supreme Court in the case
of Seema Kumari Vs. State reported in (1998) 7 JT SC 465, the
learned Single Judge held that certificate produced later stage
should be considered for providing appointment. The Division
Bench of this Court in the case of State of Rajasthan Vs.
Madhubala gave following verdict, which reads as under:
"We are of the opinion that the order under challenge
merely places the respondent at par with the persons
similarly situated in all other respects. The respondent was
selected along with the candidate whose appointment has
been saved by the decision of this Court in Deepak Kumar
Suthar by allowing them to retain the weightage/advantage
on the ground of place of birth of residence and the
petitioner-respondent also falls in the same category.
Therefore, in our opinion, the prospective operation given to
the Full Bench decision would not come in the way of the
respondent being placed at par with the persons similarly
situated and offered appointment with the result of the very
same decision.
We do not find any merit in this appeal, it is hereby
dismissed.
The appointment in pursuance of the decision of the learned
Single Judge may be given to the respondent on verifying the
genuineness of the Certificates. The direction be carried out within
a period of two months from the date of receipt of the copy of this
order."
Recently, in the judgment reported in (2016) 4 SCC 754 :
Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection
Board & Anr. the Hon'ble Supreme Court held that non-
submission of the caste/tribe certicate by reserved (OBC) category
candidate within cut off date mentioned in the advertisement
rendering ineligible otherwise selected candidate only on the
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ground would amount to denial of equality of opportunity
contemplated under Articles 14, 15, 16 and 39A of the
Constitution of India. The following adjudication is made by the
Hon'ble Supreme Court which reads as under:
"13. After hearing both the parties at length and
perusing the impugned judgment and order passed by the
Division Bench of the High Court, we are of the view that the
Division Bench erred in setting aside the judgment and order
passed by the learned single Judge. We record our reasons
hereunder.
14. The Division Bench of the High Court erred in not
considering the decision rendered in the case
of Pushpa (supra). In that case, the learned single Judge of
the High Court had rightly held that the Petitioners therein
were entitled to submit the O.B.C. certificate before the
provisional selection list was published to claim the benefit of
the reservation of O.B.C. category. The learned single judge
correctly examined the entire situation not in a pedantic
manner but in the backdrop of the object of reservations
made to the reserved categories, and keeping in view the
law laid down by a Constitution Bench of this Court in the
case of Indra Sawhney v. Union of India : 1992 (Supp) 3 SCC
217 as well as Valsamma Paulv. Cochin University and Ors. :
(1996) 3 SCC 545 The learned single Judge in the case
of Pushpa(supra) also considered another judgment
of Delhi High Court, in the case of Tej Pal Singh (supra),
wherein the Delhi High Court had already taken the view that
the candidature of those candidates who belonged to the
S.C. and S.T. categories could not be rejected simply on
account of the late submission of caste certificate.
15. The relevant paragraph from the judgment of this
Court in the case of Indra Sawhney (supra) has been
extracted in the case of Pushpa (supra) along with the
speech delivered by Dr. Ambedkar in the constituent
assembly and reads thus:
"9.... 251. Referring to the concept of equality of
opportunity in public employment, as embodied in
Article 10 of the draft Constitution, which finally
emerged as Article 16 of the Constitution, and the
conflicting claims of various communities for
representation in public administration, Dr Ambedkar
emphatically declared that reservation should be
confined to 'a minority of seats', lest the very concept
of equality should be destroyed. In view of its great
importance, the full text of his speech delivered in the
Constituent Assembly on the point is appended to this
judgment. But I shall now read a few passages from it.
Dr Ambedkar stated:
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...firstly, that there shall be equality of
opportunity, secondly, that there shall be reservations
in favour of certain communities which have not so far
had a 'proper look-in' so to say into the administration
.... Supposing, for instance, we were to concede in full
the demand of those communities who have not been
so far employed in the public services to the fullest
extent, what would really happen is, we shall be
completely destroying the first proposition upon which
we are all agreed, namely, that there shall be an
equality of opportunity .... Therefore the seats to be
reserved, if the reservation is to be consistent with
Sub-clause (1) of Article 10, must be confined to a
minority of seats. It is then only that the first principle
could find its place in the Constitution and effective in
operation ... we have to safeguard two things, namely,
the principle of equality of opportunity and at the same
time satisfy the demand of communities which have
not had so far representation in the State, ...
Constituent Assembly Debates, Vol. 7, pp. 701-702
(1948-49).
These words embody the raison d'etre of reservation
and its limitations. Reservation is one of the measures
adopted by the Constitution to remedy the continuing evil
effects of prior inequities stemming from discriminatory
practices against various classes of people which have
resulted in their social, educational and economic
backwardness. Reservation is meant to be addressed to the
present social, educational and economic backwardness
caused by purposeful societal discrimination. To attack the
continuing ill effects and perpetuation of such injustice, the
Constitution permits and empowers the State to adopt
corrective devices even when they have discriminatory and
exclusionary effects. Any such measure, in so far as one
group is preferred to the exclusion of another, must
necessarily be narrowly tailored to the achievement of the
fundamental constitutional goal.
16. In the case of Pushpa (supra), relevant paragraphs
from the case of Tej Pal Singh (supra) have also been
extracted, which read thus:
"11....17. The matter can be looked into
from another angle also. As per the advertisement
dated 11th June, 1999 issued by the Board, vacancies
are reserved for various categories including 'SC'
category. Thus in order to be considered for the post
reserved for 'SC' category, the requirement is that a
person should belong to 'SC' category. If a person is SC
his is so by birth and not by acquisition of this category
because of any other event happening at a later stage.
A certificate issued by competent authority to this
effect is only an affirmation of fact which is already in
existence. The purpose of such certificate is to enable
the authorities to believe in the assertion of the
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candidate that he belongs to 'SC' category and act
thereon by giving the benefit to such candidate for his
belonging to 'SC' category. It is not that Petitioners did
not belong to 'SC' category prior to 30th June, 1998 or
that acquired the status of being 'SC' only on the date
of issuance of the certificate. In view of this position,
necessitating upon a certificate dated prior to
30thJune, 1998 would be clearly arbitrary and it has no
rationale objective sought to be achieved.
16. While taking a particular view in such matters one
has to keep in mind the objectives behind the post of SC and
ST categories as per constitutional mandate prescribed in
Articles 15(4) and 16(4) which are enabling provisions
authorising the Government to make special provisions for
the persons of SC and ST categories. Articles 14(4) and 16(4),
therefore, intend to remove social and economic inequality
to make equal opportunities available in reality. Social and
economic justice is a right enshrined for protection of
society. The right in social and economic justice envisaged in
the Preamble and elongated in the Fundamental Rights and
Directive Principles of the Constitution, in particular
Articles 14, 15, 16, 21, 38, 39and 46 are to make the quality of
the life of the poor, disadvantaged and disabled citizens of
the society meaningful.
17. Further, in the case of Pushpa (supra), relevant
portion from the judgment of Valsamma Paul's case (supra)
has also been extracted, which reads as under:
"11... '17.... "21. The Constitution through its
Preamble, Fundamental Rights and Directive Principles
created a secular State based on the principle of
equality and non-discrimination, striking a balance
between the rights of the individuals and the duty and
commitment of the State to establish an egalitarian
social order."
18. In our considered view, the decision rendered in
the case of Pushpa (supra) is in conformity with the position
of law laid down by this Court, which have been referred to
supra. The Division Bench of the High Court erred in
reversing the judgment and order passed by the learned
single Judge, without noticing the binding precedent on the
question laid down by the Constitution Benches of this Court
in the cases of Indra Sawhney and Valsamma Paul (supra)
wherein this Court after interpretation of
Articles 14, 15, 16 and 39A of the Directive Principles of State
Policy held that the object of providing reservation to the
SC/ST and educationally and socially backward classes of the
society is to remove inequality in public employment, as
candidates belonging to these categories are unable to
compete with the candidates belonging to the general
category as a result of facing centuries of oppression and
deprivation of opportunity. The constitutional concept of
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[CW-692/2017]
reservation envisaged in the Preamble of the Constitution as
well as Articles 14, 15, 16 and 39A of the Directive Principles of
State Policy is to achieve the concept of giving equal
opportunity to all sections of the society. The Division Bench,
thus, erred in reversing the judgment and order passed by
the learned single Judge. Hence, the impugned judgment
and order passed by the Division Bench in the Letters Patent
Appeal No. 562 of 2011 is not only erroneous but also
suffers from error in law as it has failed to follow the binding
precedent of the judgments of this Court in the cases
of Indra Sawhney and Valsamma Paul (supra). Therefore, the
impugned judgment and order passed by the Division Bench
of the High Court is liable to be set aside and accordingly set
aside. The judgment and order dated 24.11.2010 passed by
the learned single Judge in W.P. (C) No. 382 of 2009 is
hereby restored"
Upon perusal of all above cases, we are of the opinion that
the Hon'ble Supreme Court time and again held that merely
technicality should not come in the way for considering the
candidature under the reserved category, therefore, obviously, the
denial of petitioner's prayer to consider her candidature under the
physically handicapped category by the respondents is not
sustainable in law because as per Section 36 of the Act of 1995 it
was not open for the respondents to fill in the said vacancy which
is kept reserved for the physically handicapped candidate.
To consider the plea of respondents that there is no post
kept reserved for physically handicapped candidate is available
for the reason that unfilled vacancy has been filled in by other
category, we have perused the relevant provisions of the Act of
1995.
In Chapter VI of the Act of 1995, there is provision for
"Employment" to the class of persons with disability. The Section
32 provides for identification of posts which can be reserved for
persons with disability. Section 33 provides for reservation of
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posts and Section 36 provides for vacancies not filled up to be
carried forward. Sections 32, 33 and 36 of the Act of 1995 are as
follows:
"32. Identification of posts which can be reserved for
persons with disabilities - Appropriate Governments shall
-
(a) Identify posts, in the establishments, which can be reserved for the persons with disability;
(b) At periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.
33. Reservation of posts.- Every appropriate government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from-
(i) blindness or low vision:
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy; in the posts identified for each disability. Provided that the appropriate government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment form the provisions of this Section.
36. Vacancies not filled up to be carried forward.- Where in any recruitment year any vacancy under Section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person can not be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government."
Upon cumulative reading of Sections 32, 33 and 36 of the (24 of 34) [CW-692/2017] Act would reveal that after identification of the posts which can be reserved for the persons with disability, there is duty of the employer to provide reservation and Section 36 provides that where in any recruitment year any vacancy under Section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability.
The plain reading of aforesaid Section is that vacancies if not filled in, in particular year can be carry forward, but there is restriction that in the event of non-availability of suitable person with disability, the vacancy is first to be filled up by interchange among three categories and only when there is no person with disability available for the post in that year, the employer shall filled up the vacancy by appointment of a person other than a person with disability.
In the judgment of Hon'ble Supreme Court in the case of Union of India & Anr. Vs. National Federation of the Blind & Ors. reported in (2013) 10 SCC 772, the following observations were made in paras nos. 24, 25,26,27,29 and 37, which reads as under:
"24. Although, the Disability Rights Movement (25 of 34) [CW-692/2017] in India commenced way back in 1977, of which Respondent No. 1 herein was an active participant, it acquired the requisite sanction only at the launch of the Asian and Pacific Decade of Disabled Persons in 1993-2002, which gave a definite boost to the movement. The main need that emerged from the meet was for a comprehensive legislation to protect the rights of persons with disabilities. In this light, the crucial legislation was enacted in 1995 viz., the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which empowers persons with disabilities and ensures protection of their rights. The Act, in addition to its other prospects, also seeks for better employment opportunities to persons with disabilities by way of reservation of posts and establishment of a Special Employment Exchange for them. For the same, Section 32 of the Act stipulates for identification of posts which can be reserved for persons with disabilities. Section 33 provides for reservation of posts and Section 36 thereof provides that in case a vacancy is not filled up due to non-availability of a suitable person with disability, in any recruitment year such vacancy is to be carried forward in the succeeding recruitment year. The difference of opinion between the Appellants and the Respondents arises on the point of interpretation of these sections.
25. ...The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, Under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the Petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of theUnion of India that identification of Groups A and B posts in the I.A.S. was undertaken after the year 2005 is not of much substance.
26. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Groups A, B, C and D posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said Section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the Petitioners.
27. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purpose of Section 33, but such identification was meant to be simultaneously undertaken with the coming into (26 of 34) [CW-692/2017] operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment.
29. While it cannot be denied that unless posts are identified for the purposes of Section 33of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation Under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved Under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.
37. Admittedly, the Act is a social legislation enacted for the benefit of persons with disabilities and its provisions must be interpreted in order to fulfill its objective. Besides, it is a settled rule of interpretation that if the language of a statutory provision is unambiguous, it has to be interpreted according to the plain meaning of the said statutory provision. In the present case, the plain and unambiguous meaning of Section 33 is that every appropriate Government has to appoint a minimum of 3% vacancies in an establishment out of which 1% each shall be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor or cerebral palsy.
Recently, in the judgment reported in 2016 (13) SCC 153 in the case of Rajeev Kumar Gupta & Ors. Vs. Union of India & Ors., the Hon'ble Supreme Court while considering Sections 32 and 33 (27 of 34) [CW-692/2017] of the Act of 1995 gave the following directions to comply the provisions of the Act of 1995 in its true spirit. Paras nos.22 to 25 are as follows:
22. The 1995 Act was enacted to fulfill India's obligations under the 'Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region'. The objective behind the 1995 Act is to integrate PWD into the society and to ensure their economic progress.12 The intent is to turn PWD into 'agents of their own destiny'.13 PWD are not and cannot be equated with backward classes contemplated Under Article 16(4). May be, certain factors are common to both backward classes and PWD such as social attitudes and historical neglect etc.
23. It is disheartening to note that (admittedly) low numbers of PWD (much below three per cent) are in government employment long years after the 1995 Act.
Barriers to their entry must, therefore, be scrutinized by rigorous standards within the legal framework of the 1995 Act.
24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise Under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation Under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post.
25. In light of the preceding analysis, we declare the impugned memoranda as illegal and inconsistent with the 1995 Act. We further direct the Government to extend three percent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts. This writ petition is accordingly allowed." After considering the aforesaid judgments and provisions of the Act of 1995 it emerges from the facts that there is no reply of the respondents that vacancy which is kept reserved for the category of the persons with disability was earlier carried forward or due to non-availability of the candidates it has been filled in (28 of 34) [CW-692/2017] from the other category. Therefore, it was not open for the respondents to fill the unfilled vacancy which is kept reserved for the person with disability because in the judgment of the National Federation (supra) the Hon'ble Supreme Court categorically held that this Act of 1995 is social legislation enacted for the benefit of the persons with disability and this provision is incorporated in order to fulfill its object. Further, it is held that if any of the statutory provision is unambiguous it has to be interpreted according to the plain meaning of such statutory provision. The above proposition is further reiterated in the judgment of the Hon'ble Supreme Court in case of Ashok Kumar Giri Vs. Union of India reported in 2016(6) SCC 511.
As per the facts of the present case, much prior to the appointment orders were issued by the respondents, a representation was filed by the petitioner for her claim to consider her candidature under the category of persons with disability, but it has been rejected by the respondents on the ground that category cannot be changed for the reason that in the online application you did not claim reservation under the said category of the persons with disability, so also, in the reply it is stated that the said vacancy which remained unfilled has already been filled. In view of the above clear cut verdict of Hon'ble Supreme Court in various judgments, it was not open for the respondents to fill up the vacancy kept reserved for the person with disability from other category.
It is universal truth that mistake can be committed by the candidate suffering disability none else, therefore, at the time of (29 of 34) [CW-692/2017] considering the representation of the petitioner, the respondents were under obligation to consider the fact that in previous Rajasthan Judicial Services Examination, 2013 the petitioner was allowed to appear under the reserve category of physically handicapped and if she was allowed to appear in the said category in the previous examination then obviously when this fact was disclosed in the representation, it was obligatory duty of the respondents to consider the case of the petitioner under the category of disabled candidate because mistake can be committed by the disabled person due to physical deficiency. In the present case it is beyond imagination that a candidate like petitioner who appeared in the very examination in the previous year will not claim the benefit of reservation provided under the Act of 1995, therefore, the decision of the respondents for rejecting the petitioner's representation or the plea taken in the reply that vacancy kept reserved of physically handicapped person on the horizontal basis has already been filled in, therefore, the case of the petitioner cannot be considered is hereby rejected.
We have considered the judgment cited by the learned counsel for the respondents in the case of Akram Khan Vs. Rajasthan High Court, Jodhpur & Anr. : DBCWP No.7410/2016, decided on 21.7.2016, Sunil Bhanwariya Vs. Registrar Examination Cell, Rajasthan High Court, Jodhpur & Ors : DBCWP No.3331/2014, decided on 12.5.2014 and Managing Director, Ajmer Vidhyut Vitran Nigam Ltd, Ajmer Vs. Hitesh Kumhar & Anr.:
DBSAW No.85/2015, decided on 1.8.2016. in all these cases cited by the respondents, the question of providing appointment to (30 of 34) [CW-692/2017] physically handicapped candidate was not under consideration. In all these cases, the Division Bench denied to rectify the mistake for the reason that right accrued to 3rd person because candidate did not claim or submit the caste certificates to claim right to consideration. In the case of physically handicapped person, the Parliament has specifically provided that if any vacancy reserved for physically handicapped persons unfilled then it should be carry forward. In none of the cases cited by the learned counsel for the respondents the said provision of the Act of 1995 was in existence to fill in the vacancies from other reserved categories and to carry forward the same. Therefore, all these judgments are not even applicable in this case in view of the judgment of the Hon'ble Supreme Court in the case of Ram Kumar (supra), in said case the Hon'ble Supreme Court held that the Division Bench of the High Court erred in reversing the judgment and order passed by the learned single Judge, without noticing the binding precedent on the question laid down by the Constitution Benches of this Court in the cases of Indra Sawhney and Valsamma Paul wherein this Court after interpretation of Articles 14, 15, 16 and 39A of the Directive Principles of State Policy held that the object of providing reservation to the SC/ST and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the (31 of 34) [CW-692/2017] Preamble of the Constitution as well as Articles 14, 15, 16 and 39A of the Directive Principles of State Policy is to achieve the concept of giving equal opportunity to all sections of the society. The Division Bench, thus, erred in reversing the judgment and order passed by the learned single Judge. Hence, the impugned judgment and order passed by the Division Bench in the Letters Patent Appeal No. 562 of 2011 is not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in the cases of Indra Sawhney and Valsamma Paul.
In view of the facts emerges from the pleadings there is no disputed that petitioner is possessing physical disability of 80% for which a certificate was issued by the medical board of PBM Hospital, Bikaner on 5.7.2010 which is available on record as Annex.5. It is also not in dispute that in the Rajasthan Judicial Services Competitive Examination, 2013, the petitioner appeared under the physically handicapped category but was not selected for not declaring the cut off marks for physically handicapped the petitioner preferred DBCWP No.8364/2014 before this Court for seeking directions to declare cut off marks for the category of persons with physical disability, however, the said writ petition was withdrawn. It is also admitted fact that in online application for appearing in Rajasthan Judicial Service Examination,2016 by mistake against column no.3(i) meant for the person with disability (differently abled), the petitioner mentioned "No" but soon after the declaration of final result of main examination on 15.11.2016 a representation was submitted by the petitioner on (32 of 34) [CW-692/2017] 28.11.2016 with the prayer to consider her candidature under the category of person with disability in the Rajasthan Judicial Service Competitive Examination, 2016 and all above facts were narrated before the respondents nos.1 and 2 and to consider her candidature under the category of persons with disabilities as she is having 80% disability. Admittedly, after declaration of result, the representation was filed on 28.11.2016 much before issuance of appointment orders and sub mitted that out of two posts kept reserved for disabled category, one unfilled post is available upon which her candidature may be considered while treating her candidature under the category of physically handicapped candidate. It is true that there is no fault of the respondents because the petitioner allowed to appear in the competitive examination as general category candidate as per information furnished in her online application form. In our opinion, the physically handicapped candidate is a class apart, therefore, at the time of making prayer to rectify the mistake by him/her even after appearing in the examination, to achieve the purpose of enactment of the Act of 1995, the respondents were under obligation to accept the prayer of the petitioner to treat her candidature under the category of person with disability because on the date of deciding her representation one unfilled post of said category was available with them. Under Section 36 of the Act of 1995 it is the duty of the employer that first efforts should be made to fill in the vacancy kept reserved for physically disabled candidates from the candidates having disability and in the event of non-availability of candidate of such category to carry forward (33 of 34) [CW-692/2017] the post in succeeding recruitment year. In this case, it is nowhere pleaded by the respondents that post which remained unfilled was earlier carry forward, therefore, they were free to fill up the said vacancy from the candidate other than the person with disability.
At the time of consideration for appointment, it was within their knowledge that the petitioner with disability is available who can be considered for appointment but without considering the spirit of Section 36 of the Act, the representation of the petitioner was rejected by saying "considered and rejected". On the basis of above discussion, to consider the intention of legislature for enactment of the Act of 1995, we are of the view that the theory of forgiveness was required to be applied by the respondents to rectify the mistake committed by the petitioner because father of the nation Mahatma Gandhi said that "Weak never forgive. Forgiveness is attributed to the strong", therefore, it was expected from the strong respondents that in the event of availability of vacancy kept reserved for disabled candidate, a pious decision should have been taken for the welfare of disabled candidate to whom we are treating weaker section of the society as per Constitution of India.
In view of the above discussion, we hold that rejection of the petitioner's prayer to consider her candidature under the category of physically disabled candidate is not in accordance with the spirit of the Act of 1995.
Consequently, the instant writ petition is hereby allowed. The respondents are directed to consider the candidature of the petitioner for appointment on the post of Civil Judge-cum-Judicial (34 of 34) [CW-692/2017] Magistrate in Civil Judge Cadre against two vacancies kept reserved for disabled candidate in the Rajasthan Judicial Service Examination, 2016 and provide appointment as per her merit of said category, if she is otherwise eligible. (G.R. MOOLCHANDANI)J. (GOPAL KRISHAN VYAS)J. cpgoyal/-ps