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. 858 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. 859 of 2017 @ Special Leave Petition (Civil)  No.  18420  of

2015, Union Public Service Commission versus Tushar Keshaorao  Deshmukh  and

Another and C. A. No. 860 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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