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Physical Disability Category is a Reservation Category in itself

Posted in Case Review, Disability Support, and Employement

Case Title: M Selvakumar Vs. Union of India, MANU/SC/0075/2017

In this 2017 case, a physically handicapped person who had appeared for the Civil Services Examination 7 times asked for a 3-year extension in lieu of him also falling under the reserved OBC category. The Supreme Court Bench comprising of Justice Ranjan Gogoi and Justice Ashok Bhushan held that that physically disabled category is a category in itself and cannot avail further reservations. The horizontal reservation is different from vertical reservation, hence no discrimination can be found when Physically Handicapped candidates of both (OBS and Disabled) categories get equal chances (i.e. 7) to appear in the examination. The Court also held that this type of reservation is a matter of Government policy wherein courts cannot look into if it is acceptable or not.

Facts
Brief facts from the judgement are provided herein under:

“6. The Respondent M. Selvakumar, an orthopedically differently-abled person belonging to Other Backward Class (OBC) applied for Civil Services Examination for the first time in the year 1998. The Respondent took 7 attempts between the examination held in the year 1998 to 2006, but failed to qualify the same.

  1. Prior to 2007 Examination, Physically Handicapped candidates belonging to General Category were entitled to take only 4 attempts which were allowed to General Category Candidate also, whereas, Physically Handicapped candidates belonging to OBC Category were entitled to take 7 attempts equal to OBC Category candidates also. There was no restriction on the number of attempts for candidates belonging to SC/ST Category.
  2. The Central Government is authorised to frame Rules for recruitment of Civil Services Examination as per All India Services Act, 1951. By Notification dated 29.12.2007, the Central Government amended the Civil Services Examination Rule by adding a condition that Physically Handicapped Candidate belonging to General Category shall be eligible for 7 attempts.
  3. The Respondent submitted his application in response to the Notification dated 29.12.2007, appearing for his 9th attempt. The candidature was not accepted, as he had already exhausted his 7 attempts at the examination. The Respondent filed an O.A. No. 905 of 2008 before the Central Administrative Tribunal, Madras Bench, praying for the following reliefs:

(i) To declare that the Clause 3(iv) of the notification dated 29.12.2007 in respect of the civil service preliminary examination, 2008 published in the employment news 29.12.2007-04.01.2008 edition as illegal in so far as not giving three more additional attempts to the physically handicapped in the other backward class apart from being discriminatory, violation of Article 14 and in violation of the basic frame work of the PWD Act, 1995.

(ii) Consequently direct the 2nd Respondent to extend three more attempts to the applicant for the Civil services preliminary examination.

(iii) Pass such other orders or direction as this Hon’ble Tribunal may deem fit in the circumstances of the case and to award costs and render justice.

This application was contested by the Union of India.

  1. The O.A. was contested by the Commission, stating that the applicant in his application had not correctly mentioned the number of attempts undertaken by him, and after scrutiny it was found that he had already availed as many as 8 attempts at the examination, exhausting the maximum number of attempts permissible to his Category, i.e. Physically Handicapped candidates belonging to OBC Category, thereby his candidature was rightly cancelled.
  2. The Tribunal vide its judgment and order dated 19.07.2013 dismissed the O.A. The Respondent challenged the order of the Tribunal before the Delhi High Court by filing a Writ Petition (c) No. 7377 of 2013. The Delhi High Court held that as long as the declaration of law as held in M. Selvakumar’s case stands, the Tribunal ought to have followed it. The Delhi High Court following the judgment of M. Selvakumar agreed with the view of the Madras High Court, and stated that in the case of OBC Candidates, 7 attempts permitted to both physically-abled candidates and those with disability is discriminatory. The Delhi High Court allowed the Writ Petition and set aside the rejection of the candidature of the Petitioner and directed for declaration of the result and if the Petitioner was found successful, his claim for appointment was directed to be processed.
  3. The Union Public Service Commission filed an appeal challenging the above judgment dated 13.10.2014 and this Court on 08.07.2015 stayed the operation of the aforesaid judgment of the Delhi High Court.

Contentions

  1. Learned Counsel for the Appellants submits that the view taken by both the Madras High Court and the Delhi High Court, that there is discrimination, since attempts permitted for Physically Handicapped candidates belonging to the General Category and that of Physically Handicapped candidates belonging to OBC Category have been made equal, is erroneous. It is contended that Physically Handicapped candidates both of General Category and OBC are entitled for 7 chances as per Civil Services Examination Rules. The candidature of the Respondents in both the appeals having exhausted their 7 permissible attempts, was rightly rejected. The Madras High Court although did not quash the Civil Services Examination Rule, but had directed that Physically Handicapped candidates belonging to OBC should be given 3 additional attempts on erroneous grounds. It is contended that the relaxation granted to different categories of candidates in the Civil Services Examination is a matter of policy for the Union of India and there being no error in the said policy, the High Court ought not to have tinkered with the Civil Services Examination Rules, by directing something contrary to the Rules. It is submitted that after the 2007 Examination, the attempts for Physically Handicapped candidates belonging to General Category were increased to 7, which is at par with the Physically Handicapped candidates belonging to the OBC Category. There is neither any discrimination nor any arbitrariness.
  2. Refuting the submission of the learned Counsel for the Appellant, learned Counsel for the Respondents contended that the Government to achieve the objective of increasing the representation of disabled persons in the Civil Services has increased the number of attempts for Physically Handicapped candidates belonging to General Category by 3 more attempts. The aforesaid increase of 3 more attempts ought to have been granted to disabled persons of the OBC category as well. Equating the number of attempts for disabled persons from open category with the number of attempts for disabled persons in the OBC Category, the Government is treating the unequals equally which is forbidden Under Article 14 and 16(1).
  3. Article 16 of the Constitution provides for equality of opportunity in matters of public employment. The State in terms of Article 16 of the Constitution provides two types of reservations i.e. a vertical or social reservation as provided for in Article 16 sub-clause (4) and horizontal reservation which is referable to Article 16 sub-clause (1). Special reservation in favor of physically handicapped, women etc. Under Article 16(1) or 15(3) of the Constitution are the instances of horizontal reservation.
  4. A 9-Judges Bench in Indra Sawhney and Ors. v. Union of India and Ors. (MANU/SC/0104/1993) had elaborately considered both the concepts of reservation.
  5. Whether actually there is any discrimination in number of attempts made available to Physically Handicapped candidates, belonging to General Category and those of OBC Category is the question to be answered. All Physically Handicapped Category candidates have been granted uniform relaxation of upper age by 10 years, as per Rule 6, as quoted above in addition to relaxation in age of 5 years for SC Category candidates and 3 years for OBC Category candidates as per Note-I of Rule 6, the benefit of age relaxation can be taken by Reserved Category candidates cumulatively.

Directions/Order

In brief, the Court held:
(i) Article 16 of the Constitution provides for equality of opportunity in matters of public employment. The State in terms of Article 16 of the Constitution provides two types of reservations i.e. a vertical or social reservation as provided for in Article 16 sub-clause (4) and horizontal reservation which is referable to Article 16 sub-clause (1). Special reservation in favour of physically handicapped, women etc. Under Article 16(1) or 15(3) of the Constitution are the instances of horizontal reservation.

(ii) In the Civil Services Examination both vertical and horizontal reservations are provided for. The reservation for SC/ST and Other Backward Classes (OBC) which has been provided for in the Civil Services Examination with regard to number of posts is not in issue rather what is the content of horizontal reservation provided for Physically Handicapped Category in Civil Services Examination is up for consideration. Especially, as to whether in grant of relaxation with regard to number of attempts to appear in the Civil Services Examination in context of Physically Handicapped candidates of General Category to 7 and not further increasing the number of attempts for OBC Physically Handicapped candidates from 7, there is a discrimination or violation of Article 14 of the Constitution, is the moot question to be answered.

(iii) A Physically Handicapped candidate of General Category has been given equal chance as compared to a Physically Handicapped candidate belonging to OBC. No discrimination can be read, when the number of attempts for both the categories has been made equal i.e. 7. The number of attempts for SC/ST candidates is unlimited within their maximum age limit with regard to which there is no challenge.

(iv) The reserved category candidate belonging to OBC are separately entitled for the benefit which flow from vertical reservation, and the horizontal reservation being different from vertical reservation, no discrimination can be found when Physically Handicapped candidates of both the above categories get equal chances i.e. 7 to appear in the examination.

(v) The present case was not a case of treating unequals as equal. It was a case of extending concessions and relaxations to the Physically Handicapped candidates belonging to General Category as well as Physically Handicapped belonging to OBC Category. Physically Handicapped Category is a Category in itself, a person who is physically handicapped be it Physically Handicapped of a General Category or OBC Category, suffering from similar disability has to be treated alike in extending the relaxation and concessions. Both being provided 7 attempts to appear in Civil Services Examination, no discrimination or arbitrariness can be found in the above scenario.

(vi) In the Civil Services Examination for SC/ST candidates, there is no restriction on the number of attempts. In the present case, the Respondents had based their claim on the grounds that the attempts for Physically Handicapped candidates belonging to the General Category, having been increased from 4 to 7, attempts for Physically Handicapped of OBC Category, were required to be proportionally raised from 7 to 10.

(vii) The horizontal reservation and relaxation for Physically Handicapped Category candidates for Civil Services Examination, is a matter of Governmental policy and the Government after considering the relevant materials have extended relaxation and concessions to the Physically Handicapped candidates belonging to the Reserved Category as well as General Category. It is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether better policy could be evolved. The Court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Article 14 of the Constitution. The Press Note reflected the policy of the Government and the said policy statement in no manner helped the Respondent in the present case. The judgments of the Madras High Court and Delhi High Court were set aside.

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