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Tuesday, January 24, 2017

in NTR University of Health Sciences, Vijaywada versus G. Babu Rajendra Prasad and Another (2003) 5 SCC 350 has held that how and in what manner reservation is granted, should be made a policy matter of decision for State. Such a policy decision normally would not be challenged. Following has been stated in Para 13 of the said judgment: “Article 15 and 16 of the Constitution of India provide for enabling provisions. By reason thereof the State would be entitled to either adopt a policy decision or make laws providing for reservations. How and in what manner the reservations should be made is a matter of policy decision of the State. Such a policy decision normally would not be open to challenge subject to its passing the test of reasonableness as also the requirements of the Presidential Order made in terms of Article 371-D of the Constitution of India.”

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION



                            C.A. NO. 858 OF 2017

(Arising out of SLP (C) NO. 21587 OF 2013)



UNION OF INDIA & ORS.             ……..Petitioners

                       VERSUS

M. SELVAKUMAR & ANR.              ……….Respondents



 with C.A. No. 859/2017 @ SLP (c) 18420 of 2015 with C.A. No. 860/2017 @ SLP
                              (c) 25885 of 2015



                                  JUDGMENT



ASHOK BHUSHAN J.



Leave granted.

2.    These appeals have been filed  challenging  the  judgments  of  Madras
High Court and Delhi  High  Court  allowing  the  writ  petitions  filed  by
Physically  Handicapped  candidates  belonging  to  Other  Backward  Classes
(OBC), claiming that they are entitled to avail 10  attempts  instead  of  7
attempts in the Civil Services Examination. The challenge is on  the  ground
that since the attempts for Physically Handicapped candidates  belonging  to
General Category have  been  increased  from  4  to  7,  w.e.f.  2007  Civil
Services Examination, there should be a proportionate increase  in  attempts
to be taken by  Physically  Handicapped  Candidates  belonging  to  the  OBC
Category.

3.    C. A. No. …… of 2017 @ Special Leave Petition  (Civil)  No.  21587  of
2013 had been filed against the judgment of the  Division  Bench  of  Madras
High Court dated 24.1.2012 in Writ Petition (c)No. 18705 of 2010  titled  M.
Selvakumar versus Central Administrative Tribunal and Others.

4.    C. A. No. ….. of 2017 @ Special Leave Petition (Civil)  No.  18420  of
2015, Union Public Service Commission versus Tushar Keshaorao  Deshmukh  and
Another and C. A. No. ….. of 2017 @ SLP © No. 25885 of 2015  Union of  India
versus Tushar Keshaorao Deshmukh and Another have  been  filed  against  the
same judgment of Delhi High Court dated 13.10.2014 in Writ  Petition  (c)No.
7377 of 2013.

5.    The Delhi High Court in its judgment  dated  13.10.2014  has  followed
the judgment of Madras High Court in M. Selvakumar’s case (Supra).



CA No. 858 of 2017 @SLP (C) 21587 OF 2013



6.    The Respondent M.  Selvakumar,  an  orthopaedically  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.

7.     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.

8.    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.

9.     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.

10.   The Tribunal vide its judgment and order dated 17.03.2010, refused  to
condone the delay of 883 days in filing  the  application  and  consequently
dismissed the same. The Respondent filed a Writ Petition before  the  Madras
High Court, challenging the order of the Tribunal. The High Court  vide  its
judgment and order dated 24.01.2012,  allowed  the  writ  petition,  setting
aside the order of the Tribunal. It  was  held  that  increasing  number  of
attempts in respect of Physically  Handicapped  candidates  in  the  General
Category from 4 to 7 and not  increasing  proportionally  the  attempts  for
Physically Handicapped candidates belonging to OBC  Category  candidates  is
arbitrary.  It was held that  the  Petitioner  (Respondent  in  the  present
appeal) is further entitled to 3 more chances. The Union of India  aggrieved
by the said judgment has filed the SLP (c) No. 21587 of 2013.

C.A. No. 859 Of 2017 @ S.L.P.(C) NO.18420 OF 2015 & C.A. No. 860 Of 2017
S.L.P.(C) NO.25885 OF 2015



11.   The common  respondent  in  the  aforesaid  appeals  is  a  Physically
Handicapped candidate belonging to

the OBC Category  who  had  submitted  an  application  for  Civil  Services
Examination, 2012. Although, he was permitted to appear in  the  Preliminary
Examination  but  when  he  submitted  the  detailed  application  form  for
appearing in the Main Examination,  the  Union  Public  Service  Commission,
having noticed  that  he  had  already  exhausted  his  7  attempts  at  the
examination, issued a show cause notice and  rejected  his  candidature  for
the 2012 Examination.  The candidate  aggrieved  by  the  rejection  of  his
candidature filed an O. A. No. 930 of 2013  in  the  Central  Administrative
Tribunal Principal Bench, Delhi.

12.   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.  It  was  also
submitted that the Writ Petitioner had not approached the court  with  clean
hands as he had not disclosed correctly, the number of  attempts  undertaken
by him.  There being suppression of the facts and the  applicant  not  being
eligible  to  appear  in  2012  Examination,  his  candidature  was  rightly
rejected.

13.   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
Respondent in his Writ Petition  relied upon judgment  of  the  Madras  High
Court in M. Selvakumar (supra). 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.

14.   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.

15.   We have heard Mrs. V. Mohana, Senior Advocate Mr.  Sanyat  Lodha,  Ms.
Gunwant Dara and Mr. Mukesh  Kumar  Maroriya  for  the  appellants  and  Mr.
Rajanmani, Ms. Jyoti Mendiratta and Mr. Satya Mitra for the respondents.

16.   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.

17.   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).

18.   Learned counsel  for  the  respondents  has  placed  reliance  on  the
decision of the Delhi High Court in Writ  Petition  (c)  No.  4853  of  2012
Anamol Bhandari (Minor) through his  Father/Natural  Guardian  versus  Delhi
Technological University decided on 12.09.2012 and  of this Court  in  Indra
Sawhney and Others versus Union of India and  Others  1992  Suppl.  (3)  SCC
217, State of Kerala and Another versus N. M. Thomas  and  Others  (1976)  2
SCC 310, Union of India and Another versus National Federation of the  Blind
& Others (2013) 10 SCC 772 and judgment of this  Court  in  Justice  Sunanda
Bhandare Foundation versus  Union  of  India  and  Others  (2014)  SCC  383.
Learned counsel has also relied  on  Press  Note   dated  27th  April,  2007
issued by Government of India, Ministry of Personnel, Public Grievances  and
Pensions as well as the report of May 2007 issued by the World Bank  “People
with disabilities in India……………………….. from commitments to outcomes”.

19.   We have considered the submissions  of  the  learned  counsel  of  the
concerned parties  and  perused  the  records.  Before  we  proceed  to  the
respective submissions of  the  learned  counsel  for  the  parties,  it  is
relevant to refer to the Civil Services  Examination  Rules  which  governed
the field. The Respondent in Madras High Court case  has  appeared  in  2008
Examination whereas Respondent in Delhi High  Court  Case  has  appeared  in
2012 Examination in which, their respective candidatures  were  rejected  on
the ground that they have exhausted the maximum  permissible  attempts  i.e.
7.

20.   The Notification dated 29.12.2007 has been filed as  Annexure  P-1  to
SLP(C) 21587 of 2013 for governing 2008 Examination. Para 4 which  pertained
to the number of attempts is as follows:

“4.    Every  candidate  appearing  at  the  examination  who  is  otherwise
eligible, shall be permitted four attempts at the examination.

      Provided that this restriction on the  number  of  attempts  will  not
apply in the case of Scheduled Castes and Scheduled  Tribes  candidates  who
are otherwise eligible:

       Provided  further  that  the  number  of  attempts   permissible   to
candidates belonging to Other Backward Classes, who are otherwise  eligible,
shall be seven.  The relaxation will be available to the candidates who  are
eligible to avail of reservation applicable to such candidates.

      Provided further that  a  physically  handicapped  will  get  as  many
attempts as are “available to other  non-physically  handicapped  candidates
of his or  her  community,  subject  to  the  condition  that  a  physically
handicapped candidate belonging to the General Category  shall  be  eligible
for seven attempts.  The relaxation will  be  available  to  the  physically
handicapped candidates who are eligible to avail of  reservation  applicable
to such candidates.”



21.   Another rule which is of the relevance here  is  Rule  6.   Rule  6(a)
provides that candidate must have attained ‘the age of  21  years  and  must
not have attained the age of 30 years as on the 1st of August…………..’

“6(a) a candidate must have attained the age of 21 years and must  not  have
attained the age of 30 years on the 1st of August, 2008 i.e.  he  must  have
been born not earlier than 2nd August, 1978 and not later than  1st  August,
1987.

Rule 6(b) provides for relaxation of upper age limit. Rule  6(b)  (i),  (ii)
and (vii) with note one which is relevant is as quoted below:

6(b)  The upper age-limit prescribed above will be relaxable:

Up to a maximum of five years if a candidate belongs to  a  Scheduled  Caste
or a Scheduled Tribe;

Up to a maximum of three years in the case of candidates belonging to  Other
Backward Classes who are eligible to  avail  of  reservation  applicable  to
such candidates;

(vii)upto a maximum of 10 years,  in  the  case,  of  blind,  deaf-mute  and
Orthopaedically handicapped persons,

Note I-Candidates belonging  to  the  Scheduled  Castes  and  the  Scheduled
Tribes and the Other Backward Classes who are also covered under  any  other
clauses of Rule 6(b) above, viz. those coming  under  the  category  of  Ex-
servicemen, persons domiciled in the State of J & K,  blind,  deaf-mute  and
orthopaedically handicapped etc. will be eligible for  grant  of  cumulative
age-relaxation under both the categories.”

22.   The Rules as extracted above for 2008 Examination are  identical  with
regard  to  Civil  Service  Examination  2012  as  it   appears   from   the
Notification dated 04.02.2012, brought on record in SLP  (C)  No.  18420  of
2015. The reference of Rule for 2008 Examination as quoted  above  shall  be
sufficient to decide the issue.

23.   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.

24.   A 9-Judges Bench in Indra Sawhney and Others  versus  Union  of  India
and                                                                   Others
              1992 Suppl. (3) SCC 217 had elaborately  considered  both  the
concepts of reservation.     In Para 812 of the said  judgment,  Justice  B.
P. Jeevan Reddy, has referred to both the  types  of  reservations.  It  was
held that horizontal  reservations  cut  across  the  vertical  reservation.
Following was stated:

      “812. There are two types of reservations, which may, for the sake  of
convenience, be referred  to  as  ‘vertical  reservations’  and  ‘horizontal
reservations’.  The reservations in favour of  Scheduled  Castes,  Scheduled
Tribes and other backward  classes  [under  Article  16(4)]  may  be  called
vertical  reservations  whereas  reservations  in   favour   of   physically
handicapped [under  clause  (1)  of  Article  16]  can  be  referred  to  as
horizontal reservations.  Horizontal reservations cut  across  the  vertical
reservations –  what  is  called  interlocking  reservations.   To  be  more
precise, suppose 3% of the vacancies are reserved in  favour  of  physically
handicapped persons; this would be a reservation relatable to clause (1)  of
Article 16.  The persons selected against this quota will be placed  in  the
appropriate category; if he belongs to SC category  he  will  be  placed  in
that quota by making necessary adjustments;  similarly,  if  he  belongs  to
open competition (OC) category, he  will  be  placed  in  that  category  by
making necessary adjustments. Even  after  providing  for  these  horizontal
reservations, the percentage of reservations in favour of backward class  of
citizens remains – and  should  remain  –  the  same.   This  is  how  these
reservations are worked out in several States and there is no reason not  to
continue that procedure.”



25.   In the present case  before  us,  issues  centre  around,  the  second
category of reservation i.e. horizontal reservations which is  provided  for
candidates belonging to the Category  of  Physically  Handicapped.   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.

26.   From the  Rules  of  Civil  Services  Examination,  as  noticed  above
following result in context of number of attempts is discernable:

“(i)   Every  candidate  appearing  at  the  examination  who  is  otherwise
eligible, shall be permitted 4 attempts at the examination

(ii)  The first proviso to the rules provided that the  restriction  of  the
number of attempts will not apply in the case of SC/ST candidates

The Second proviso  of  the  Rule  provided  that  attempts  permissible  to
candidates belonging to Other Backward Class shall be 7.



The Third proviso to rule provides that a physically  handicapped  will  get
as many attempts  as  are  available  to  other  non-physically  handicapped
candidates of his  or  her  community,  subject  to  the  condition  that  a
physically handicapped candidate belonging to the general category shall  be
eligible for 7 attempts.”



27.   The main plank of the arguments of Respondents is that prior  to  2007
Civil Services Examination, number of attempts for candidates  belonging  to
General Category including Physically Handicapped was  only  4  and  it  was
only in 2007 that number of attempts for physically  handicapped  candidates
of General Category were increased from 4 to 7.  And since no  proportionate
increase in the number  of  attempts  for  Physically  Handicapped  Category
candidates of OBC was made, the grant to the  respondent  is  arbitrary  and
discriminatory being violative of  Article  14.  At  this  juncture,  it  is
relevant to note the reasons given by Madras High  Court  for  allowing  the
writ petitions. In para No. 6 and 7 of the judgment, the Madras  High  Court
observed as follows:

“6....When the number of attempts has been increased from four to  seven  in
respect of physically challenged candidates  in  the  General  Category  and
when there is no restriction with regard  to  the  number  of  attempts  for
physically handicapped candidates in SC/ST category, restricting the  number
of attempts to seven in respect of physically handicapped candidates in  the
Other Backward Class Community,  is  in  violation  of  article  14  of  the
Constitution of India.  Therefore we hold that the  number  of  attempts  of
seven fixed for physically handicapped  candidates  in  the  Other  Backward
Class Community, is disproportionate to the number of  attempts  granted  to
physically handicapped candidates in the General Category.”



“7....In this  case  admittedly,  the  number  of  attempts  in  respect  of
physically  handicapped  candidates  in  the  General  Category   has   been
increased from four to seven. However, the number of attempts in respect  of
physically  handicapped  candidates  belonging  to  Other   Backward   Class
community has not been proportionately increased,  which  is  arbitrary  and
prejudicial  to  the  interest  of  the  physically  handicapped  candidates
belonging to Other Backward Class Community.”



28.   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.

29.   Last sub rule of Rule 4 as noted above indicates that the 3rd  proviso
contains  a  theme  of  relaxation  pertaining  to  Physically   Handicapped
candidates  who  are  eligible  to  avail  reservation  applicable  to  such
candidates. Provided further that a physically handicapped will get as  many
attempts as are available to other non-physically handicapped candidates  of
his or her  community.  The  above  is  subject  to  the  condition  that  a
physically handicapped candidate belonging to the General category shall  be
eligible for seven attempts.  Thus, 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 above 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.

30.   Reservation  for  Physically  Handicapped  is  a  kind  of  horizontal
reservation, as noted above. As  accepted,  physically  handicapped  persons
belonging to any  category  i.e.  General,  OBC,  SC/ST  have  to  be  given
opportunity to come up and compete in the  mainstream,  and  enjoy  all  the
benefits and developments.  The Parliament, with a  view  to  implement  the
above,  enacted  ‘The  Persons  with  Disabilities   (Equal   Opportunities,
Protection of Rights and Full Participation) Act, 1995’.

31.   This court has time and again noted the State’s obligation  to  permit
overall development of all its citizens including those who are differently-
abled. Equal opportunities have to be given to differently-abled persons  to
come up and take benefit of public  employment.   This  court  in  Union  of
India and Others versus National Federation of Blind and  Others  (2013)  10
SCC 772 has laid down the following in para 23:

“23. India as a welfare State is committed to  promote  overall  development
of its citizens including those  who  are  differently  abled  in  order  to
enable them to lead a life of dignity,  equality,  freedom  and  justice  as
mandated by the Constitution of India. The  roots  of  statutory  provisions
for ensuring equality and equalization of opportunities to  the  differently
abled citizens in our country could be traced in Part III  and  Part  IV  of
the Constitution. For the persons  with  disabilities,  the  changing  world
offers more new opportunities owing to technological  advancement,  however,
the actual limitation surfaces only when they are not  provided  with  equal
opportunities.  Therefore, bringing them  in  the  society  based  on  their
capabilities is the need of the hour.”



32.    When  the  attempts  of  Physically  Handicapped  candidates  of  OBC
Category and Physically Handicapped  candidates  of  General  Category,  who
appeared in the Civil Services Examination are made equal, and a  Physically
Handicapped candidate belonging to OBC Category, in  addition  to  10  years
relaxation in age also enjoys 3 years more age relaxation for  appearing  in
the examination,  we  cannot  agree  with  the  High  Court  that  there  is
discrimination between Physically Handicapped  candidates  of  OBC  Category
and Physically Handicapped Candidates  of  General  Category.  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.

33.   In this context, a reference to  judgment  of  this  Court  in  Mahesh
Gupta and Others versus Yashwant Kumar Ahirwar and Others (2007) 8  SCC  621
shall not be out of place.

34.   The State of Madhya Pradesh issued an  advertisement  for  recruitment
of  handicapped  persons  to  several  posts.   The  appellants   who   were
Physically Handicapped, belonging to  General  Category  got  selected.  The
Respondent No. 1,  a  handicapped  person  belonging  to  Reserved  Category
challenged  the  selection  before   the   Administrative   Tribunal.    The
Administrative Tribunal rejected the claim. Writ Petition was filed  by  the
1st Respondent.  The High Court set aside the order  of  the  Administrative
Tribunal. High Court directed the State Government to examine whether  posts
were to be filled from the members of the ST Category or members of  the  SC
Category only or from the Category of OBC or these posts were  for  all  the
categories as mentioned above. After the judgment of the High Court, a  show
cause notice was issued to the appellants and  subsequently  their  services
were terminated.  Appellants have challenged the abovementioned judgment  of
the High Court before this Court.  This Court in the above context  came  to
consider the vertical and  horizontal  reservations.    Following  was  laid
down by this court in para 10, 11 and 12:

“10.  The State in terms of Article 16 of  the  Constitution  of  India  may
make two  types  of  reservations-vertical  and  horizontal.  Article  16(4)
provides  for  vertical  reservation;  whereas  Clause  (1)  of  Article  16
provides for horizontal reservation.



11.   The State adopted a policy decision for filling up the reserved  posts
for handicapped persons. A special drive was to be launched  therefor.   The
circular letter was issued only for the said purpose.   A  bare  perusal  of
the said Circular Letter dated 29-3-1993 would clearly show that  the  State
had made 3% reservation for blinds and 2% for other  physically  handicapped
persons.  Such a reservation falling within Clause (1) of Article 16 of  the
Constitution has nothing to do with the object  and  purport  sought  to  be
achieved by reason of Clause (4) thereof.



12.   Disability has drawn the attention of the worldwide  community.  India
is a signatory  to  various  international  treaties  and  conventions.  The
State, therefore, took a policy  decision  to  have  horizontal  reservation
with a view to fulfil its constitutional object as also  its  commitment  to
the international community.  A disabled is a  disabled.   The  question  of
making any further reservation on the basis  of  caste,  creed  or  religion
ordinarily  may  not  arise.   They  constitute  a   special   class.    The
advertisement, however, failed to mention in regard to the  reservation  for
handicapped persons at the outset but, as noticed hereinbefore,  the  vacant
posts were required to be filled up for two categories  of  candidates;  one
for  Scheduled  Caste  and  Scheduled  Tribe  candidates   and   other   for
handicapped  candidates.  Handicapped  candidates  have  not  been   further
classified as belonging to Scheduled Castes, Scheduled  Tribes  and  general
category candidates.”

                                                          (underlined by us)

35.   The appeal was allowed and those  Physically  Handicapped  candidates,
who were selected from General Category and had their services  subsequently
terminated, were directed to be continued in service.

36.   Learned counsel for the respondents has also contended  that  in  view
of the fact that Physically Handicapped candidates of OBC Category  are  now
allowed only 7 attempts which is equivalent to  physically-abled  candidates
of OBC  Category  hence  Physically  Handicapped  and  Physically-abled  OBC
Category candidates have to  compete  which  is  equality  between  unequals
violating Article 14. The another limb of argument is  that  the  Physically
Handicapped candidates of General  Category  and  candidates  of  Physically
Handicapped OBC Category  have  been  permitted  equal  attempts,  which  is
nothing but treating unequals as equals violating  Article  14.  Relying  on
Indra Sawhney versus Union of India (supra), it is contended  that  equality
contemplated by Article 14 is not only when equals are treated  equally  but
also when unequals are treated unequally.   Conversely,  when  unequals  are
treated equally, mandate of equality before law is breached. He  has  relied
on following observations made in para 415:

       “415:  It  is  no  longer  necessary  to  emphasise   that   equality
contemplated by Article 14 and other  cognate  articles  including  Articles
15(1), 16(1), 29(2) and 38(2) of the Constitution, is secured not only  when
equals are treated equally but also when  unequals  are  treated  unequally.
Conversely, when unequals are  treated  equally,  the  mandate  of  equality
before law is breached.  To  bring  about  equality  between  the  unequals,
therefore,  it  is  necessary  to  adopt  positive   measures   to   abolish
inequality. The equalizing measures will have  to  use  the  same  tools  by
which inequality was introduced and  perpetuated.   Otherwise,  equalization
will not be of the unequals.  Article 14 which  guarantees  equality  before
law would by itself, without any other provision  in  the  Constitution,  be
enough  to  validate  such  equalizing  measures.   The  Founders   of   the
Constitution,  however,  thought  it  advisable   to   incorporate   another
provision,  viz.,  Article  16  specifically  providing  for   equality   of
opportunity in matters of public employment.   Further  they  emphasized  in
(4)  thereof  that  for  equalizing  the  employment  opportunities  in  the
services under  the  State,  the  State  may  adopt  positive  measures  for
reservation of appointments or posts in favour  of  any  backward  class  of
citizens which in the opinion of the State, is  not  adequately  represented
in such services. By hindsight, the foresight shown in making the  provision
specifically, instead of leaving it only to the equality provision as  under
the U. S. Constitution, is more than vindicated.”



37.   The present case is not a case of treating unequals as equal. It is  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.   The
judgment  of  the  Apex  Court  referred  to  by  learned  counsel  for  the
respondent Justice Sunanda Bhandare Foundation versus  Union  of  India  and
Another (2014) 14 SCC 383 needs, to be noted.

38.   In the above  case,  the  Petitioner,  a  charitable  trust  came  up,
seeking directions for implementation of the provisions of The Persons  with
Disability   (Equal   Opportunities,   Protection   of   Rights   and   Full
Participation) Act, 1995, in the writ petition. Under order  of  the  court,
the Commissioners for Persons with Disability of various  States  and  Union
Territories were  impleaded  as  party-respondent.  The  court  noticed  the
counter affidavit filed by on behalf of the Chief Commissioner  for  Persons
with Disability, wherein it was stated that the benefit of relaxation of  5%
in marks  obtained  at  the  Masters  Level,  which  was  being  enjoyed  by
blind/low-vision and other visually disabled  persons,  belonging  to  SC/ST
Category, have also been extended in General to all  disabled  at  par  with
SC/ST to bring parity among the persons. In para 6 of the  judgment  para  8
of the counter affidavit was quoted which is as follows:

“8.   The blind/low-vision and other visually disabled persons belonging  to
SC and ST category are in any case enjoying the benefit of 5% relaxation  in
marks obtained at the Masters level for appearing  in  the  NET  examination
conducted  by  UGC.   By  extending  the  same  relaxation  to  particularly
blind/low-vision and in general all  disabled  on  a  par  with  SC  and  ST
disabled  would  bring  parity  amongst  all   persons   with   disabilities
irrespective of their vertical categories.”



39.   This court, noticing the aforesaid counter affidavit  had  closed  the
matter,  noticing  the  direction  of  UGC  which  clearly  indicated   that
relaxation of 5% which was only earlier available to  blind/low  vision  and
another visually disabled persons, belonging  to  SC/ST  category  had  been
extended to all disabled, which was treated as  an  action  bringing  parity
among all the persons with disabilities. The above judgment,  in  no  manner
helps the respondents.

40.   Now coming to the judgment  passed  by  Delhi  High  Court  in  Anamol
Bhandari  (supra),  in  the  above  case  Delhi  Technology  University  has
provided 10% of concession of marks in the minimum eligibility required  for
candidates belonging to SC/ST Category, whereas, relaxation of only  5%  was
permissible for people with disability.  The Petitioner, who was  Physically
Handicapped had obtained only 52.66% marks and was not being considered  for
admission, since he was only eligible for relaxation of 5% and was  required
to  have  at  least  55.00%  marks.   A  writ  petition  was  filed  by  the
petitioner, seeking a direction to extend the same relaxation  as  has  been
extended to candidates belonging to SC/ST Category.  The  Delhi  High  Court
also referred to the World Bank Report of May, 2007 'People with  disability
in India................... from commitment to outcome'.

41.    Delhi High Court has also, referring to the judgment  of  this  Court
in Writ Petition No. 116 of 1998, titled A. I. Confederation  of  Blind  and
Another versus Union of India and Another, directed for  extension  of  same
relaxation to Physically Handicapped candidates which was extended to  SC/ST
Category candidates. Para  19  of  the  Delhi  High  Court  judgment  is  as
follows:

      19. “It will also be relevant to mention that the issue of  relaxation
of marks to PWD people came up for consideration before  the  Supreme  Court
in W.P. (c) No. 116/1998 titled A. I. Confederation  of  Blind  &  Anr.  Vs.
U.O.I. & Anr. (decided  on  19.03.2002).  It  was  found  therein  that  the
relaxation was given to SC and ST candidates to the extent of  5%  partially
blind/low vision persons in that petition.

Matter was studied by the  Government  which  filed  the  counter  affidavit
agreeing to extend the same benefit to visually handicapped persons  as  was
enjoyed by SC/ST candidates. In the order  dated  19.3.2002  passed  by  the
Apex Court in the said petition, relevant portion of the  counter  affidavit
was extracted since this was the  stand  of  the  Union  of  India  in  that
petition, we would like to reproduce the same here as under:



……..3. It is humbly submitted  that  in  pursuance  of  Section  32  of  the
Persons with Disabilities Act(Equal Opportunities, Protection of Rights  and
Full Participation) Act, 1995, the  appropriate  government  (Government  of
India) has updated the list of identified posts.  This list has been  issued
vide Extraordinary Gazette Notification No. 178  dated  30.6.2001.  In  this
list, the posts of University/College/School Teacher for the blind and  low-
vision have been listed at SI. No. 24-27 on Page No. 592.

6.     The  Chief  Commissioner  for  Person  with  Disabilities  has  taken
cognizance of the arrangements provided by the University Grants  Commission
for persons with disabilities by way of extending 5% relaxation  in  cut-off
marks,  appearing   in  the  NET  for   Junior   Research   Fellowship   and
Lectureship. Thus, the arrangement extended by UGC  is  in  consonance  with
the policy stand taken by Govt. of India in so far as relaxation in  minimum
standard is concerned. Relaxation in standards has been favoured  only  when
the candidates belonging to reserved categories are  not  available  on  the
basis of the general standard to till all the vacancies reserved for them.

7.    The relaxation extended to SC & ST candidates as  per  Maintenance  of
Standard 1998 of the Universities, provides for a 5% relaxation from 55%  to
50% in the marks obtained at Master’s Degree.   Since  reservation  for  the
disabled is called horizontal reservation which  cuts  across  all  vertical
categories such as SC, ST, OBC & General.  Therefore,  all  such  blind/low-
vision persons who belonged to SC, ST vertical category would  automatically
enjoy the benefit of 5% relaxation at the minimum qualifying marks  obtained
at Master’s Degree level. Thus, only the blind and low-vision  belonging  to
OBC & General categories are deprived of  the  relaxation  of  5%  marks  at
masters’ level.

8.    The blind/low-vision and other visually disabled persons belonging  to
SC & ST category are in any case enjoying the benefit of  5%  relaxation  in
marks obtained at the masters’ level for appearing in  the  NET  examination
conducted by the UGC.  By extending  the  same  relaxation  to  particularly
blind/low-vision and in general all disabled at par with SC  &  ST  disabled
would bring parity amongst all persons  with  disabilities  irrespective  of
their vertical categories.”

42.   Delhi High Court referring to the aforesaid stand  of  the  Government
of India, had allowed the Writ Petition and held  that  5  %  concession  in
marks to Physically Handicapped candidates as opposed to 10 % relaxation  to
SC candidates is  discriminatory  and  the  disabled  candidates  were  also
entitled for the same relaxation i.e. 10 %. The above case was  on  its  own
fact. The present case is not  a  case,  wherein  the  respondents  who  are
Physically Handicapped Candidates belonging to OBC  Category,  are  claiming
any parity with relaxation granted to SC/ST candidates. As noted  above,  in
the  Civil  Services  Examination  for  SC/ST  candidates,   there   is   no
restriction on the number of attempts. In the present case, the  respondents
have 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.  Thus  the  above
judgment of Delhi High Court has no application in the facts of the  present
case.

43.   Now coming to the judgment of the Delhi High  Court,  which  is  under
challenge in last two appeals,  the  Delhi  High  Court  has  relied  on  M.
Selvakumar's case (supra) of Madras High Court and had relied  on  Paragraph
No. 6 & 7 of the said judgment.

44.   Delhi High Court has also relied on its  earlier  judgment  of  Anamol
Bhandari (Supra). Para 11 of the judgment  of  Delhi  High  Court  which  is
relevant, is as follows:



“11. This Court is of the opinion that as long as the declaration of law  in
M. Selvakumar (supra) stands and is not set aside, the  CAT  ought  to  have
followed it.  No rule or decision contrary  to  M.  Selvakumar  (Supra)  was
relied upon by the UPSC. This Court too does not find any reason  to  differ
from M. Selvakumar  (Supra).  In  this  context,  the  reasoning  in  Anamol
(supra) that persons with disability  labour  under  similar  and  identical
disadvantages as reserved category (SC/ST)  personnel  is  apt.   In  Anamol
(supra), the Court had extensively relied on and drawn  on  empirical  data,
such as studies and officially  sponsored  research  papers,  to  hold  that
while granting concessions, the equation between persons  with  disabilities
and SC/ST candidates would be justified and  called  for.   In  the  present
case, the equation which the petitioner sought  was  in  the  light  of  the
respondents’ decision of  2007  to  increase  the  number  of  attempts  for
general category disabled candidates by three.  The benefit of such  relief,
i.e. increase by three attempts in the case of disabled  general  candidates
has resulted in a situation where OBC category disabled candidates are  also
limited to seven attempts.  Further, general  category  candidates,  who  do
not suffer from disabilities, are permitted four attempts. In  the  case  of
SC/ST, there is no restriction in the number of attempts.  However,  in  the
case of the OBC  candidates,  the  number  of  attempts  permitted  to  both
physically  fit  candidates  and  those  with  disability  is  seven.   This
equation, under the circumstances, was  held  to  be  discriminatory  by  M.
Selvakumar (Supra) which directed an increase by three attempts.”



45.   As noted, we have already observed that the  reasoning  given  by  the
Madras High Court in M. Selvakumar was unfounded. Once the  decision  of  M.
Selvakumar is found to be on erroneous grounds, judgment of the  Delhi  High
Court cannot stand. The reliance on Anamol  Bhandari(supra)  by  Delhi  High
Court is also not appropriate as explained above.  We,  therefore,  come  to
the conclusion that the view taken by both the Madras  High  Court  and  the
Delhi High Court that increasing  the  number  of  attempts  for  Physically
Handicapped candidates belonging to General Category from 4 to 7 w.e.f.  the
2007 Examination and not proportionally increasing the  number  of  attempts
for Physically Handicapped candidates belonging to OBC Category  from  7  to
10, is discriminatory and arbitrary, is unsustainable.

46.   The  World  Bank  Report  of  May  2007  relied  by  counsel  for  the
respondent is also not  relevant  for  the  issue  which  has  come  up  for
consideration before us. The World Bank Report which has also been  referred
by the Delhi High Court in its judgment in Anamol  (supra)gives  a  detailed
figure of different  categories  of  differently-abled  persons,  disability
prevalence rate in different countries and  different  other  factors  which
does not throw any light on the issues which are before us. Hence,  reliance
placed on the abovementioned Report is misplaced.

47.   There is one more reason due to which we are unable  to  subscribe  to
the view  taken  by  the  Madras  High  Court  and  Delhi  High  Court.  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.

48.   This court in NTR University of Health Sciences, Vijaywada  versus  G.
Babu Rajendra Prasad and Another (2003) 5 SCC 350 has held that how  and  in
what manner reservation is granted,  should  be  made  a  policy  matter  of
decision  for  State.  Such  a  policy  decision  normally  would   not   be
challenged. Following has been stated in Para 13 of the said judgment:

“Article 15 and 16  of  the  Constitution  of  India  provide  for  enabling
provisions.  By reason thereof the State would be entitled to  either  adopt
a policy decision or make laws providing for reservations. How and  in  what
manner the reservations should be made is a matter  of  policy  decision  of
the State. Such a policy decision normally would not be  open  to  challenge
subject to its passing the test of reasonableness as also  the  requirements
of  the  Presidential  Order  made  in  terms  of  Article  371-D   of   the
Constitution of India.”

49.   Learned Counsel for the Respondent has also relied on the  Press  Note
dated 27.04.2007, issued by Government  of  India.   He  contends  that  the
press note was issued with the object of  improving  access  and  increasing
the representation of physically challenged persons in the  Civil  Services.
It is useful to refer to first two paragraphs of Press Note,  which  are  to
the following effect:

      “To improve access and increase the representation of  the  physically
challenged persons in the Civil Services under the central  government,  the
government has decided that any physically challenged persons,  selected  on
the standards as applicable to the non-disabled candidate of  his  category,
will be counted over and above the quota  fixed  for  physically  challenged
persons.  This would be exactly on the lines as  it  happens  for  SC/ST/OBC
candidates.

It has also been decided that the physically  challenged  persons  belonging
to the General Category shall be eligible  for  seven  attempts  as  against
existing four attempts. The physically challenged persons belonging  to  the
OBC Category and SC/ST category would continue to be eligible for seven  and
unlimited attempts respectively. Additional relaxation of 10  years  in  the
upper age limit for physically challenged persons will be continued.”



50.   The above note spelled out the objective and policy of the  Government
of India, to which it is entitled to frame and implement.  The  decision  to
improve access and increase the representation of the physically  challenged
persons is referred to in the 1st  paragraph,  as  quoted  above.   The  2nd
Paragraph noticed the decision of the  Government  to  give  7  attempts  to
physically challenged persons belonging  to  General  Category,  as  against
existing 4 attempts.  The Press Note  dated  27.04.2007  thus  reflects  the
policy of the Government and the said policy statement in  no  manner  helps
the respondent in the present case.

51.   In view of the foregoing discussions, both sets of appeals deserve  to
be allowed. The judgment of the Madras High  Court  dated  24.1.2012  in  M.
Selvakumar versus Central Administrative Tribunal and Others  is  set  aside
and the Writ Petition is dismissed. Similarly, the judgment  of  Delhi  High
Court dated 13.10.2014 impugned in the last two appeals  is  set  aside  and
the Writ Petition filed by the respondents is  hereby  dismissed.   All  the
appeals are allowed.


                                                          ……………………………………………J
                                  [Ranjan Gogoi]


                                                          ……………………………………………J
[Ashok Bhushan]
New Delhi
January 24, 2017.

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