RAJASTHAN HIGH COURT, JODHPUR & ANR. versus NEETU HARSH & ANR. on 29 August 2019

[2019] 11 S.C.R. 829

RAJASTHAN HIGH COURT, JODHPUR & ANR.

v.

NEETU HARSH & ANR.

(Civil Appeal No. 6696 of 2019)

AUGUST 29, 2019

[R. BANUMATHI AND A. S. BOPANNA, JJ.]

Judicial Services – Rajasthan Judicial Service Rules, 2010 –r.10(4) – Persons with Disabilities (Equal opportunities, Protectionof Rights and Full Participation) Act, 1995 – s.36 – Appellants issuednotification calling for applications for recruitment to the post ofCivil Judge-cum-Judicial Magistrate in the Civil Judge Cadre for72 posts – Among the same, two posts were kept reserved for personswith disabilities – Private respondent applied indicating hercategory as “General” and in the column provided for indicationof the claim under the Differently Abled Category had mentioned“No” – Private respondent was declared successful in thePreliminary examination, main examination and the interview – Shehad obtained 136 marks and was placed at Serial No.137 – Asagainst the two vacancies for the differently abled persons, one ofthe applicants who had obtained 138 marks was at Serial No.57 –Subsequent thereto, the private respondent made representation witha request to consider her candidature under the category fordifferently abled persons as visually impaired and to provideappointment – Representation was not accepted – Writ petition –High Court directed appellants to consider the candidature of theprivate respondent for appointment in the Civil Judge cadre againstthe two vacancies reserved for disabled candidates – Appellantscontended that disability certificate relied on by the privaterespondent showed description of permanent disability asHemiplegia-Non-functional hand – However, in the representationmade by her she claimed that she was visually impaired and referencewas made to the same disability certificate – On appeal, held: Inthe instant case, whether the disability claimed by the privaterespondent is a locomotor disability or visual impairment is itself adebatable question, it would not be possible for the Court to act asan expert and in such circumstance a mandamus to consider thesame in a particular manner would not be justified – It is true thatthe employment opportunities to the differently abled persons is to

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Abe provided as a matter of right when a case is made out – However,when the claim was not made and there are debateable issues, thedirection of the High Court cannot be considered justified – Moreso, appellants had acted in terms of Rajasthan Judicial ServiceRules, 2010 and appointed a candidate from the other category forthe vacant disabled category – So, when such appointment has beenBmade, disturbing such candidate at this juncture not justified – Thus,order passed by the High Court unsustainable – Constitution ofIndia – Arts.233 and 234 r/w. proviso to Art. 309.

Allowing the appeal, the Court

HELD: 1. Though it is contended by the private respondentCthat it was a mistake in indicating “No” against the Column 3.1 –‘Person with Disability’, what is necessary to be taken note isthat against Column 2.4 – ‘Category’, it has been stated as“General”. That apart the examination fee fixed for Generalcandidates is Rs. 250/- while for the eligible disabled applicant itDis fixed at Rs. 50/-. The private respondent in addition to indicatingher category as ‘General’ has paid the fee of Rs. 250/- asapplicable. Further, though the disability certificate dated05.07.2010 is presently relied upon, there is no material to indicatethat the same was enclosed along with the application or producedtill the completion of interview. On this aspect, to contend thatEthe private respondent cannot make a contrary claim, theappellants herein has relied on the decision in the case of J&KPublic Service Commission vs. Israr Ahmad. [Para 15][841-A-D]

2. Further the decision in the case of Registrars General,Calcutta High Court vs. Shriniwas Prasad Shah & Ors. is reliedFon, wherein this Court has disallowed the claim in a case wherein the application the category of reservation was indicated butcertificate was not produced and the fee applicable to generalcandidate was paid. In addition, the appellants herein also refersto the inherent contradictions in the claim of the privaterespondent apart from the fact that the claim for considerationGunder the category reserved for Differently Abled Persons is notmade. It is also pointed out that even as per the disability certificatedated 05.07.2010 sought to be relied on at present, the descriptionof permanent disability is shown as Hemiplegia – Non-functionalhand. It is in that background pointed out that though that is theHnature of disability indicated therein which will be locomotor disability, in the representation dated 28.11.2016 which was madebelatedly the private respondent has claimed that she is visuallyimpaired, more than 80% and the reference made is to the samedisability certificate dated 05.07.2010. The private respondentno doubt has referred to an article relating to Hemiplegia whereinreference is also made to the difficulties in seeing. The verynature of the contention would indicate that in the instant factsthe claim in the application under the category should have beenmade and the disability certificate was required to be producedalong with the application since the nature of the disability was amatter which was to be considered by the recruiting authoritiesconcerned, if need be on medical examination. If visualimpairment as a consequence of Hemiplegia was to be considered,the percentage of disability by visual impairment will also berelevant and the same was required to be determined at theappropriate stage. [Paras 16 and 17][841-H; 842-A-F]

3. Therefore, in a circumstance where the issue is whetherthe disability claimed is locomotor disability or visual impairmentand the same itself being a question to be debated, it would notbe possible for the Court to act as an expert and in suchcircumstance a mandamus to consider the same in a particularmanner would not also be justified. It is no doubt true that theemployment opportunities to the differently abled persons is tobe provided as a matter of right when a case is made out andthere is no need for sympathetic consideration. However, in theinstant facts when the claim was not made and there aredebateable issues, though this Court could empathise with thecause of the private respondent the nature of direction issued bythe High Court in any event cannot be considered as justified.This is more so, in a circumstance where the appellants had actedin terms of the Rajasthan Judicial Service Rules, 2010 when noother claim was available and had appointed a candidate from theother category and when such appointment has been made,disturbing such candidate at this juncture also will not be justified.Hence for all the afore stated reasons, this Court finds the orderdated 04.05.2017 passed by the High Court to be unsustainableand the same is accordingly set aside. [Para 18][842-F-H; 843-A-B]

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AGovernment of India through Secretary & Anr. v. RaniPrakash Gupta (2010) 7 SCC 626 : [2010] 7 SCR851; Union of India & Anr. v. National Federation ofthe Blind (2013) 10 SCC 772 : [2013] 9 SCR 1023;Rajeev Kumar Gupta & Ors. v. Union of India & Ors.(2016) 13 SCC 153 : [2016] 3 SCR 407; V. SurendraBMohan v. State of Tamil Nadu & Ors. (2019) 4 SCC237 : [2019] 1 SCR 954; J&K Public ServiceCommission v. Israr Ahmad (2005) 12 SCC 498;Registrars General, Calcutta High Court v. ShriniwasPrasad Shah & Ors. (2013) 12 SCC 364 : [2013] 3CSCR 211 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6696

of 2019.EFrom the Judgment and Order dated 04.05.2017 of the High Courtof Judicature for Rajasthan at Jodhpur in D.B. Civil Writ Petition No.692of 2017.

Ms. Meenakshi Arora, Sr. Adv., Mukul Kumar, Advs. for theFAppellants.

Pallav Shishodia, Sr. Adv., H. D. Thanvi, Bheem Kant Vyas,Rimjhim Mathur, V. K. Harsh, Rishi Matoliya, Advs. for the Respondents.

The Judgment of the Court was delivered by A.S. BOPANNA,J.

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1. Leave granted.

2. The appellants herein were the respondent Nos. 2 and 3 in thewrit petition bearing DBCWP No.692 of 2017 which was consideredand disposed of by the High Court of Judicature for Rajasthan at Jodhpur.Through the order dated 04.05.2017 the writ petition was allowed and H

the appellants herein were directed to consider the candidature of theprivate respondent herein for appointment on the post of Civil Judge-cum-Judicial Magistrate in the Civil Judge Cadre against the twovacancies reserved for disabled candidates in the Rajasthan JudicialService Examination, 2016 and provide appointment as per merit of saidcategory, if she is otherwise eligible. The said order and direction of theHigh Court is assailed herein primarily on the contention that the privaterespondent herein had not applied against the vacanciesadvertised forthe physically challenged category but had applied as a General Categorycandidate and as per the merit list she was not entitled to be appointedas there were more meritorious candidates in the General Category andthe appointment having been made, the process has been completed.

3. The brief facts are that the appellants herein had issued aNotification calling for applications for recruitment to the post of CivilJudge-cum-Judicial Magistrate in the Civil Judge Cadre for 72 posts.Among the same, two posts were kept reserved for persons withdisabilities. The private respondent herein had responded to the saidNotification butfiled the application indicating her category as “General”and in the column provided for indication of the claim under the DifferentlyAbled Category had mentioned “No”. Hence, for all purposes privaterespondent herein was considered as a General category candidate andhad accordingly appeared for the preliminary examination. On beingdeclared successful she had appeared for the main examination andthereafter in the interview also as General category candidate withoutreliance being placed on the disability certificate. The result was declaredon 15.11.2016. In the said list the marks obtained by all the candidateswere disclosed. The petitioner had obtained 136 marks and she wasplaced at Serial No.137. As against the two vacancies for the differentlyabled persons, one of the applicants who had obtained 138 marks was atSerial No.57. It is subsequent thereto the private respondent made arepresentation dated 28.11.2016 with a request to consider her candidatureunder the category for Differently Abled persons as visually impairedand to provide the appointment. The said representation being takennote, the private respondent was informed that her candidature underthe category of Differently Abled persons cannot be accepted. It is inthat view the private respondent claiming to be aggrieved filed the writpetition seeking direction for consideration of her request. While seekingconsideration under the Differently Abled category the claim is that the A

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Aprivate respondent is having 80% disability as indicated in the certificatedated 05.07.2010 issued by the competent doctor.

4. The High Court while taking note of the contention, though hadpassed an elaborate order the main consideration appears to be thatthough two vacancies were kept reserved for Differently Abled persons,Bonly one vacancy is filled in by way of providing appointment to thecandidate named Ms. Renu Motwani at Serial No.57. In that regard,though there is no definite material on record the High Court has alsoobserved that in the earlier examination for the same post held in theyear 2013 the private respondent herein was allowed to appear in thephysically handicapped category because she was having 80% disability.CIn that view, though it is not in dispute that the private respondent hadindicated her category as “General” in the application, the High Courtwas of the view that even though a mistake was committed by thecandidate, the representation submitted by her subsequently ought tohave been considered sympathetically and in this regard it was observedDthat the object of the Persons with Disabilities (Equal Opportunities,Protection of Rights and Full Participation) Act, 1995 (hereinafter referredto as the “PWD Act”) should have been kept in view. In that regard theposition of law relating to the consideration under the said Act was takennote and the provisions contained therein not to fill up the vacancies byany other category but to carry forward the same was also taken intoEconsideration.In that background the consideration required herein is asto whether the High Court was justified in its approach in applying theproposition of providing opportunity toDifferently Abled Personsasprovided under PWD Act, notwithstanding the fact that the issue presentlyrelated to the appointment of the Judicial Officer in the backdrop of theFprovisions contained in the Rajasthan Judicial Service Rules governingthe same and the vacancy is filled up. Further, the issue also is as towhether the direction is justified when no application was filed seekingbenefit of the reserved category.

5. We have heard Ms. Meenakshi Arora, senior advocate for theGappellants, Mr. PallavShishodia, senior advocate for the privaterespondent and perused the appeal papers.

6. The Notification dated 12.03.2016 issued by the appellants hereininviting online application in the prescribed format for the competitiveexam for the direct recruitment to Civil Judge Cadre, 2016 relating toH

the reservation and the procedure for consideration of Differently AbledPersons reads as hereunder:

Total Year Reserved Persons with No. disabilities (Differently of abled) Posts70 Current 37 out 11 out 8 out of 14 out Out of 70 Vacanciesof of which 2 of vacancies, 2 which which 3 posts which 4 posts 11 posts reserved posts reserved for posts reserved for reserved persons reserved for woman for with for women woman disabilities woman 2 Backlog - - 2 - - (Backlog)

“3. Regarding the reservation for disabled persons:

A. According to Rajasthan persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Rules,2011, aforesaid posts shown to have been reserved for disabledpersons are reserved for applicants having Locomotor Disabilityand Cerebral Palsy (L.D & C.P) and visual impaired. Aforesaidreserved posts have been reserved for applicants having undermentioned disabilities.

Locomotor Disability And Cerebral Palsy (L.D. & C.P)

O.L. – One leg affected (R or L)

B.L. – Both legs affected (Mobility not to be restricted)

O.A. – One Arm affected (R or L)

Visual Impaired (Blind & Low Vision)

B– Blind (Mobility not to be restricted)

LV– Low Vision (Mobility not to be restricted)”

“5. In case of non-availability of fit and suitable candidate for theposts reserved for women and disabled candidates, these posts

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Ashall be filled as per the procedure and manner prescribed inRajasthan Judicial Services Rules, 2010 (as amended).

6. A married woman candidate in order to receive benefit ofreserved category shall have to present caste certificate (S.C./S.T./O.B.C.) issued on the basis of the name, place of residenceBand income of her father.”

“5. Exam fee:

Applicant shall have to pay exam fee in accordance with his/her category.

CA. Exam fee for the candidates belonging to general category,creamy layer from backward class/special backward class/applicantsfrom other States shall be Rs.250/-.

B. Examination fee for the candidates of non-creamylayer fromother backward class/special backward class shall be Rs.150/-.

DC. Examination fee of Candidates belonging to scheduled caste/scheduled tribe of Rajasthan and all eligible disabled applicants shall beRs.50/-.”

7. In response to the above said Notification the private respondentsubmitted her application and in Column 2.4 –‘Category’ it was indicatedEas “General”, in Column 3.1 – ‘Persons with Disability’ – it was indicatedas “No”. Further in the declaration it is stated that the private respondenthas carefully read the terms and conditions of the Notification, instructionsand relevant rules before filling up the application form online and toabide by them. It is also declared that the informations made are true,complete and correct. In the Column for payment of the application feeFthe sum of Rs.250/- prescribed as the fee for General Category Candidatealong with the commission charges of Rs.10/-, in all amounting to Rs.260/- is paid. Pursuant to the application being in order the admission cardwas generated providing the Roll No.5046 and the category was indicatedtherein as “General”. It is on the said basis the private respondent hadGappeared for the preliminary examination, main examination and theinterview. Based on the same the statement of marks of all the candidatesin the order of merit was published on 15.11.2016. It is only thereafterthe private respondent made a representation dated 28.11.2016 whereinshe claims that she is visually impaired more than 80% and the MedicalBoard issued the disability certificate dated 05.07.2010. It is furtherH

indicated in the representation that she hadinadvertently not mentionedthe physically handicapped category in the application form. She hasalso stated that during the previous year she had appeared as a candidateunder the category of Persons with Disabilities and therefore she beconsidered against the other vacant post.

8. The learned senior counsel for the appellants has contendedthat the private respondent did not make a claim under the quota for thecategory of Differently Abled Persons in the application and the claimpresently made is merely because only one of the posts was filled up bya Differently Abled Person with locomotor disability and the other postif there was a claim would have been for visually impaired and as suchthe private respondent is claiming visual impairment at this stage. As perthe Rajasthan Judicial Service Rules, 2010 the unfilled seat will have tobe filled up in accordance with the normal procedure and, such vacancywill not be carried forward to the subsequent year. In that circumstance,it is contended that out of the vacancies which was reserved forDifferently Abled Persons, the second vacancy which was available toa visually impaired person has been filled in by a more meritoriouscandidate from the General category in the absence of a visually impairedcandidate, which is the normal procedure referred to in the Rules.

9. The learned senior counsel for the private respondent on theother hand has made a detailed reference to the provisions of the PWDAct, 1995,more particularly to the definitions as contained in Sections2(b) to (e), (o), (p), (t) as also to Sections 18 to 32, 33 and 36 as containedtherein.

10. However, we do not find it necessary to advert more in detailto the said provisions since in the instant case it is not as if no reservationfor Differently Abled Persons was made in the Recruitment Notificationconcerned nor is it a case where the Recruitment Notification is underchallenge on the ground of not providing reservation. Further the decisionsrelied upon by the learned senior counsel for the private respondent inthe case of Governmentof India through Secretary &Anr. vs. RaniPrakash Gupta (2010) 7 SCC 626; in the case of Union of India&Anr. vs. National Federation of the Blind (2013) 10 SCC 772 and inthe case of Rajeev Kumar Gupta &Ors. vs. Union of India &Ors.(2016) 13 SCC 153, wherein this Court has addressed the issues relatingto backlog of vacancies, the employer having not identified the post, theduty cast on the Government and the statutory bodies as per cadre A

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Astrength and the number of posts to be reserved,would not be of assistancesince the very writ petition in the instant case before the High Court wasnot predicated on the basis that the Notification issued in the year 2016did not make enough provisions for Differently Abled Persons. Furtherthough the learned senior counsel for the private respondent hascontendedbefore us that enough representation was not given from the earlierByears and the unfilled vacancies of the earlier year were also required tobe carried forward, the same was also not the contention before theHigh Court nor has the private respondent hereinchallenged the saidNotification dated 12.03.2016 on those groundsby offering herself as acandidate under the Category of Differently Abled Persons.

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11. However, one aspect of the matter which is to be taken noteis with regard to the contention of the learned senior counsel for theprivate respondent that the mandamus issued by the High Court issustainable since the vacancy could not have been filled up by any othercategory but ought to have been carried forward and in that circumstanceDif the provision as contained in Section 36 of PWD Act is kept in view,the action of the appellants herein in operating Rule 10(4) of the RajasthanJudicial Service Rules, 2010 would not be sustainable. It is, therefore,contended by the learned senior counsel for the private respondent thatin such circumstance in any event one post reserved for the DifferentlyAbled person in the selection for the year 2016 should have been keptEvacant to be carried forward to the next recruitment for want of candidateand in that background keeping in view Section 36 of the PWD Act,instead of carrying forward to the next recruitment the same beingordered to be filled up by an available Differently Abled person is justified.

12. In order to appreciate this aspect of the matter it would beFnecessary to take note of the provision as contained in Section 36 of thePWD Act, 1995 which reads as hereunder:

“Vacancies not filled up to be carried forward – Wherein anyrecruitment year any vacancy under section 33 cannot be filledup due to non-availability of a suitable person with disability or, forGany other sufficient reason, such vacancy shall be carried forwardin the succeeding recruitment year and if in the succeedingrecruitment year also suitable person with disability is not available,it may first be filled by interchange among the three categoriesand only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy byappointment of a person, other than a person with disability.

Provided that if the nature of vacancies in an establishment issuch that a given category of person cannot be employed, thevacancies may be interchanged among the three categories withthe prior approval of the appropriate Government.”

13. In that backdrop what is to be taken note is also the RajasthanJudicial Service Rules, 2010 framed under the Notification dated18.01.2010 which is in exercise of the power conferred by Article 233and 234 read with proviso to Article 309 of the Constitution of India. TheNotification reads as hereunder; “DEPARTMENT OF PERSONNEL

(A-Gr.2)

NOTIFICATION

Jaipur, January 18, 2010

G.S.R.81.- In exercise of the powers conferred by Article 233and 234 read with proviso to Article 309 of the Constitution of India andall other powers enabling him in this behalf, the Governor of Rajasthanin consultation with the Rajasthan Public Service Commission and theHigh Court of Judicature for Rajasthan hereby makes the following rulesregulating recruitment to the posts in, and the conditions and other mattersrelated to the service of persons appointed to the Rajasthan JudicialService, namely:- “

In the said Rajasthan Judicial Service Rules, Rule 10(4) reads ashereunder:

“(1) x x x x x x

(2) x x x x x x

(3) x x x x x x

(4) Reservation of posts for Persons with Disabilities as definedin the Rajasthan Employment of Disabled Persons Rules, 2000,shall be 3% category-wise which shall be horizontal and shall beavailable only at the time of initial recruitment. In the event ofnon-availability of eligible and suitable persons with disabilities ina particular year, the vacancy so reserved for them shall be filled A

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Ain accordance with the normal procedure and such vacancies shallnot be carried forward to the subsequent year.

Provided that the total number of posts reserved for all suchcategories in a direct recruitment shall not exceed 50% of thetotal vacancies.”

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14. The Rule therefore framed is under the provisions of theConstitution of India which relates to the selection of the Judicial Officers,for which the yardsticks could be laid down in the Rules. On this aspectof the matter the decision relied on by the learned senior counsel for theappellants in the case of V. Surendra Mohan vs. State of Tamil NaduC&Ors. (2019) 4 SCC 237 would be apposite. In the said case, this Courtin a matter relating to the selection for the post of Civil Judge (JuniorDivision) to the Tamil Nadu Judicial Service was confronted with asituation whereunder the Notification prescribed the percentage ofdisability at 40 to 50 % forpartially blind and partially deaf for selection.The candidate who had assailed the action possessed the disabilityDcertificate mentioning the disability at 70 %. Since under Section 33 ofthe PWD Act, 1995 no restriction on disability to the extent of 40 to 50%can be put, the restriction on disability as per the Notification was assailedbefore the Madras High Court which culminated in the appeal beforethis Court. In that context while considering the matter, this Court hadEadverted to the issue as to whether the restriction on disability is in breachof the provisions of the PWD Act, 1995 and is it to be set aside. In thatcontext, the validity of the Tamil Nadu State Judicial Service (Cadre andRecruitment) Rules, 2007 vis-a-vis the provisions of the PWD Act, 1995was examined and the power under which the Rules 2007 (which is akinto the Rajasthan Rules, 2010) being framed, as empowered under theFprovisions of the Constitution was taken note with reference to the earlierjudgments of this Court. Though the said decision is not in relation toSection 36 of the PWD Act, 1995, prima facie when it is noticed thatRule 10(4) is contained in the Rules,2010 framed in exercise of the powersconferred under Article 233 and 234 read with proviso to Article 309 ofGthe Constitution of India, the Rule being operated will be justified. Asalready noted, neither the notification nor the Rule were under challenge.In terms thereof the appellants on taking note that there is no otherapplication/applicant seeking the appointment under the category reservedfor Differently Abled Persons has filled up by selecting the next meritorious candidate from the other category. Hence in a circumstance where nochallenge is laid to the Rule the action to that extent would be justified.

15. That apart, though it is contended by the private respondentthat it was a mistake in indicating “No” against the Column 3.1 – ‘Personwith Disability’, what is necessary to be taken note is that against Column2.4 – ‘Category’,it has been stated as “General”. That apart theexamination fee fixed for General candidates is Rs. 250/- while for theeligible disabled applicant it is fixed at Rs. 50/-. The private respondentin addition to indicating her category as ‘General’ has paid the fee ofRs. 250/- as applicable. Further, though the disability certificate dated05.07.2010 is presently relied upon, there is no material to indicate thatthe same was enclosed along with the application or produced till thecompletion of interview. On this aspect,to contend that the privaterespondent cannot make a contrary claim, the learned senior counsel forthe appellants herein has relied on the decision in the case of J&K PublicService Commission vs. Israr Ahmad(2005) 12 SCC 498 wherein it isheld in para 5 as hereunder:

5. We have considered the rival contentions advanced by boththe parties. The contention of the first respondent cannot beaccepted as he has not applied for selection as a candidate entitledto get reservation. He did not produce any certificate along withhis application. The fact that he has not availed of the benefit forthe preliminary examination itself is sufficient to treat him as acandidate not entitled to get reservation. He passed the preliminaryexamination as a general candidate and at the subsequent stageof the main examination he cannot avail of reservation on theground that he was successful in getting the required certificateonly at a later stage. The nature and status of the candidate whowas applying for the selection could only be treated alike andonce a candidate has chosen to opt for the category to which heis entitled, he cannot later change the status and make fresh claim.The Division Bench was not correct in holding that as a candidatehe had also had the qualification and the production of thecertificate at a later stage would make him entitled to seekreservation. Therefore, we set aside the judgment of the DivisionBench and allow the appeal. No costs.

16. Further the decision in the case of Registrars General,Calcutta High Court vs. Shriniwas Prasad Shah &Ors. (2013) 12

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ASCC 364 is relied on, wherein this Court has disallowed the claim in acase where in the application the category of reservation was indicatedbut certificate was not produced and the fee applicable to generalcandidate was paid.In addition, the learned senior counsel for theappellants herein also refers to the inherent contradictions in the claimof the private respondent apart from the fact that the claim forBconsideration under the category reserved for Differently Abled Personsis not made.

17. In that regard it is pointed out that even as per the disabilitycertificate dated 05.07.2010 sought to be relied on at present, thedescription of permanent disability is shown as Hemiplegia – Non-Cfunctional hand. It is in that background pointed out that though that isthe nature of disability indicated therein which will be locomotor disability,in the representation dated 28.11.2016 which was made belatedly theprivate respondent has claimed that she is visually impaired, more than80% and the reference made is to the same disability certificate datedD05.07.2010. The learned senior counsel for the private respondent nodoubt has referred to an article relating to Hemiplegia wherein referenceis also made to the difficulties in seeing. The very nature of the contentionwould indicate that in the instant facts the claim in the application underthe category should have been made and the disability certificate wasrequired to be produced along with the application since the nature ofEthe disability was a matter which was to be considered by the recruitingauthorities concerned, if need be on medical examination. If visualimpairment as a consequence of Hemiplegia was to be considered, thepercentage of disability by visual impairment will also be relevant andthe same was required to be determined at the appropriate stage.F

18. Therefore, in a circumstance where the issue is whether thedisability claimed is locomotor disability or visual impairment and thesame itself being a question to be debated, it would not be possible forthe Court to act as an expert and in such circumstance a mandamus toconsider the same in a particular manner would not also be justified. It isGno doubt true that the employment opportunities to the differently abledpersonsis to be provided as a matter of right when a case is made outand there is no need for sympathetic consideration. However, in theinstant facts when the claim was not made and there are debateableissues, though we could empathise with the cause of the private respondentthe nature of direction issued by the High Court in any event cannot beH

considered as justified. This is more so, in a circumstance where theappellants had acted in terms of the Rajasthan Judicial Service Rules,2010 when no other claim was available and had appointeda candidatefrom the other category and when such appointment has been made,disturbing such candidate at this juncture also will not be justified. Hencefor all the afore stated reasons, we find the order dated 04.05.2017passed by the High Court to be unsustainable and the same is accordinglyset aside.

19. Accordingly, the appeal is allowed with no order as to costs.All pending applications stand disposed of.

Ankit Gyan

Appeal allowed.

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