SC sets aside Rajasthan HC order allowing sympathetic consideration of disabled candidate who applied under General category

SC sets aside Rajasthan HC order allowing sympathetic consideration of disabled candidate who applied under General category

Shruti Mahajan

The Supreme Court yesterday set aside an order of the Rajasthan High Court which had directed the consideration of candidature of a differently-abled person for the post of Civil Judge ­cum­ Judicial Magistrate after she had applied under the General category.

The order was challenged by the Rajasthan High Court before the Supreme Court, with the Bench of Justices R Banumathi and AS Bopanna setting aside the order and terming the same as “unsustainable”.

The respondent in this case had approached the Rajasthan High Court after her representation for appointment against the two reserved seats for disabled persons was rejected. While allowing her appeal, the High Court had directed that she be “provided appointment as per merit of said category, if she is otherwise eligible.”

The High Court assailed its own order before the Supreme Court primarily on the ground that the respondent had not applied under the disabled category while filling her candidature. She had applied through the General category, having check marked the “No” answer where it was asked if the candidate belonged to the disabled category.

The respondent was not entitled to appointment as per the merit lists released for the General category. Out of the two vacancies earmarked for the category of physically challenged candidates, one was filled by a person with locomotor disability. Thereafter, the respondent made a representation to be considered for the second seat reserved under the disabled category on account of her having 80% disability. The same was indicated in a certificate issued to her by a competent doctor in 2010.

The High Court had opined that though she had made a mistake in her form, the respondent’s candidature should have been considered sympathetically.

Thus, the main issue for consideration before the Supreme Court was,

“whether the High Court was justified in its approach in applying the proposition of providing opportunity to Differently Abled Persons as provided under PWD Act, notwithstanding the fact that the issue presently related to the appointment of the Judicial Officer in the backdrop of the provisions contained in the Rajasthan Judicial Service Rules governing the same and the vacancy is filled up.”

During the course of the hearing before the Supreme Court, the High Court claimed that as per the Rajasthan Judicial Services Rules 2010, the second vacancy under the disabled category has been filled in by a more meritorious candidate from the General category in the absence of a visually impaired candidate.

The nature of the disability of the respondent also came under question. While she claimed to be visually impaired, the disability certificate issued to her showed permanent disability as Hemiplegia – non­functional hand. Counsel representing the respondent submitted an article to the Court which said that Hemiplegia also caused difficulty in seeing.

The Court, however, said that it cannot act as an expert in a question like this, particularly when the nature of the disability and the extent thereof is a relevant factor to be considered by the recruiting authority.

The Bench ultimately held,

“It is no doubt true that the employment opportunities to the differently abled persons is to be provided as a matter of right when a case is made out and there is no need for sympathetic consideration. However, in the instant facts when the claim was not made and there are debateable issues, though we could empathise with the cause of the private respondent the nature of direction issued by the High Court in any event cannot be considered as justified.

This is more so, in a circumstance where the appellants had acted in terms of the Rajasthan Judicial Service Rules, 2010 when no other claim was available and had appointed a candidate from the other category and when such appointment has been made, disturbing such candidate at this juncture also will not be justified.”

The Court thus allowed the appeal filed by the Rajasthan High Court and set aside the order directing for the sympathetic consideration of the respondent for appointment.

Senior Advocate Meenakshi Arora represented the High Court, while Senior Advocate Pallav Shishodia appeared for the respondent.

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