RAJASTHAN HIGH COURT, JODHPUR & ANR. versus NEETU HARSH & ANR.

Citation: [2019] 11 S.C.R. 829 · Decided: 29-08-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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RAJASTHAN HIGH COURT, JODHPUR & ANR.
v.
NEETU HARSH & ANR.
(Civil Appeal No. 6696 of 2019)
AUGUST 29, 2019
[R. BANUMATHI AND A. S. BOPANNA, JJ.]
Judicial Services – Rajasthan Judicial Service Rules, 2010 –
r.10(4) – Persons with Disabilities (Equal opportunities, Protection
of Rights and Full Participation) Act, 1995 – s.36 – Appellants issued
notification calling for applications for recruitment to the post of
Civil Judge-cum-Judicial Magistrate in the Civil Judge Cadre for
72 posts – Among the same, two posts were kept reserved for persons
with disabilities – Private respondent applied indicating her
category as “General” and in the column provided for indication
of the claim under the Differently Abled Category had mentioned
“No” – Private respondent was declared successful in the
Preliminary examination, main examination and the interview – She
had obtained 136 marks and was placed at Serial No.137 – As
against the two vacancies for the differently abled persons, one of
the applicants who had obtained 138 marks was at Serial No.57 –
Subsequent thereto, the private respondent made representation with
a request to consider her candidature under the category for
differently abled persons as visually impaired and to provide
appointment – Representation was not accepted – Writ petition –
High Court directed appellants to consider the candidature of the
private respondent for appointment in the Civil Judge cadre against
the two vacancies reserved for disabled candidates – Appellants
contended that disability certificate relied on by the private
respondent showed description of permanent disability as
Hemiplegia-Non-functional hand – However, in the representation
made by her she claimed that she was visually impaired and reference
was made to the same disability certificate – On appeal, held: In
the instant case, whether the disability claimed by the private
respondent is a locomotor disability or visual impairment is itself a
debatable question, it would not be possible for the Court to act as
an expert and in such circumstance a mandamus to consider the
same in a particular manner would not be justified – It is true that
the employment opportunities to the differently abled persons is to
   [2019] 11 S.C.R. 829
829
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SUPREME COURT REPORTS
[2019] 11 S.C.R.
be provided as a matter of right when a case is made out – However,
when the claim was not made and there are debateable issues, the
direction of the High Court cannot be considered justified – More
so, appellants had acted in terms of Rajasthan Judicial Service
Rules, 2010 and appointed a candidate from the other category for
the vacant disabled category – So, when such appointment has been
made, disturbing such candidate at this juncture not justified – Thus,
order passed by the High Court unsustainable – Constitution of
India – Arts.233 and 234 r/w. proviso to Art. 309.
Allowing the appeal, the Court
HELD: 1. Though it is contended by the private respondent
that it was a mistake in indicating “No” against the Column 3.1 –
‘Person with Disability’, what is necessary to be taken note is
that against Column 2.4 – ‘Category’, it has been stated as
“General”. That apart the examination fee fixed for General
candidates is Rs. 250/- while for the eligible disabled applicant it
is fixed at Rs. 50/-. The private respondent in addition to indicating
her category as ‘General’ has paid the fee of Rs. 250/- as
applicable. Further, though the disability certificate dated
05.07.2010 is presently relied upon, there is no material to indicate
that the same was enclosed along with the application or produced
till the completion of interview. On this aspect, to contend that
the private respondent cannot make a contrary claim, the
appellants herein has relied on the decision in the case of J&K
Public Service Commission vs. Israr Ahmad. [Para 15][841-A-D]
2. Further the decision in the case of Registrars General,
Calcutta High Court vs. Shriniwas Prasad Shah & Ors. is relied
on, wherein this Court has disallowed the claim in a case where
in the application the category of reservation was indicated but
certificate was not produced and the fee applicable to general
candidate was paid. In addition, the appellants herein also refers
to the inherent contradictions in the claim of the private
respondent apart from the fact that the claim for consideration
under the category reserved for Differently Abled Persons is not
made. It is also pointed out that

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