Delhi High Court
Tushar Keshaorao Deshmukh vs Union Of India And Anr. on 13 October, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 13.10.2014
+ W.P.(C) 7377/2013. C.M. NO.15839/2013
TUSHAR KESHAORAO DESHMUKH ..... Petitioner
Through: Sh. Rajan Mani, Advocate.
Versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Sh. Vikas Mahajan, CGSC with Sh.
Rohan Gupta, Sh. S.S. Rai and Ms. Ruchika
Mahajan, Advocates, for Resp. No.1.
Sh. Naresh Kaushik and Sh. Vardhman Kaushik,
Advocates, for Resp. No.2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. In these proceedings under Article 226 of the Constitution,
an order of the CAT dated 19.07.2013 dismissing O.A.
No.930/2013 has been challenged. The petitioner had sought for
the quashing of an order of the second respondent - Union Public
Service Commission (UPSC), cancelling his candidature for the
Civil Services Examination-2012 (CSE-2012) on the ground that
it was his eighth attempt and that he had exceeded the permissible
number of attempts, i.e. seven, in the CSE, for the disabled
candidates in the OBC category.
2. The petitioner is a hearing-impaired candidate suffering
from hearing impairment and is a person with disability under the
Persons with Disabilities (Equal Opportunities, Protection of
W.P.(C) 7377/2013 Page 1
Rights and Full Participation) Act, 1995. He had applied for and
appeared in the CSE-2012. The respondents allow open category
candidates a maximum of four attempts in such examination and
OBC candidates are permitted a maximum of seven attempts.
From CSE-2007 onwards, the respondents increased the
permissible attempts of open category disabled candidates from
four to seven. However, the corresponding number of permissible
attempts for disabled candidates in OBC category was not
increased and they continued to be allowed only seven attempts.
The petitioner had till 2008 applied for and appeared in Central
civil services examinations. However, he could not appear for this
examination. The petitioner had applied and attempted CSE-
2012; on that occasion, the concerned notification issued by the
UPSC on 04.02.2012, by clause 4 stated that eligible candidates
would be permitted four attempts in the examination. The first
proviso to clause 4 did not place any restriction on the number of
attempts in the case of SC/ST candidates. However, in the case of
OBC candidates, the number of permissible attempts was seven,
and the third proviso stated as follows:
"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............"
3. The petitioner had applied as hearing impaired/OBC candidate
for CSE-2012; he states that he wrote to the UPSC on 26.04.2012,
W.P.(C) 7377/2013 Page 2
requesting that he be permitted two extra attempts, within an overall
10 attempts, in view of the judgment of the Madras High Court
delivered in M. Selvakumar v. CAT [W.P.(C) 18705/2010, decided on
24.01.2012]. He, however, subsequently received a Show Cause
Notice dated 05.02.2013 from the UPSC, alleging that he had made
misstatement regarding the number of attempts, and asking him why
he ought not be proceeded against under the rules. The petitioner
replied to the allegations, contending that he had attempted the civil
service examinations on seven occasions and that his candidature in
CSE-2009 and CSE-2010 were cancelled on the ground that he had
already exhausted seven attempts. Those attempts were not counted. It
is stated, therefore, that according to UPSC records, the petitioner
actually attempted the civil service examinations six times. He also
relied upon the ruling of the Madras High Court in M. Selvakumar
(supra) and stated that three further attempts could be permitted in its
terms.
4. The UPSC, however, by its order dated 15.02.2013, decided to
cancel the petitioner's candidature. This was challenged by him in
O.A. No.930/2013. By an interim order dated 18.03.2013, the CAT
directed that the petitioner may be provisionally permitted to appear in
the interview pursuant to CSE-2012 and that his results may not be
published. Consequently, on 26.04.2013, the petitioner was permitted
to appear in the interview with the UPSC. On 03.05.2013, the second
respondent issued a Press Note, containing the list of candidates
recommended for appointment pursuant to CSE-2012 along with a
Corrigendum.
W.P.(C) 7377/2013 Page 3
5. The UPSC had inter alia contended that the petitioner was not
entitled to relief for the reason that he had suppressed his having
approached the Bombay High Court in W.P.(C) 5287/2010, which was
dismissed on 07.09.2010. In that, he had claimed to have become
handicapped after availing seven attempts as OBC candidate and that
he was entitled to additional seven attempts. It was also contended in
addition, that M. Selvakumar (supra) could not be applied universally.
6. The CAT, by its impugned order, dismissed the Petitioner's
original application. The operative portion of its order reads as
follows:
"10. We have considered the rival submissions and
pleadings and it is observed that the main ground taken by
the applicant in this OA is with regard to extension of the
benefit given by the Madras High Court in the case of M.
Selvakumar (supra) to the petitioner therein. The other
charges like mis-statement and suppression of information
etc. emanates from the applicability of the judgment of the
Madras High Court in M. Selvakumar (supra). If this
judgment is applied to this case, these changes would
disappear for all practical purposes. A perusal of that order
would show that the High Court has discussed in detail
clause-3(iv) of the Notification for CSE, 2008 and
specifically discussed the provision which states that
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 physically
handicapped candidates belonging to the general category
shall be eligible for 07 attempts. The High Court has further
observed that the number of attempts for the physically
handicapped persons in the general category has been
increased from four to seven. However, the same benefit has
not been proportionately extended to the PH candidates in
the OBC community. Considering this to be inconsistent with
Articles 14 and 16 of the Constitution of India the petitioner
W.P.(C) 7377/2013 Page 4
was given relaxation in the number of attempts as had been
granted to the PH candidates belonging to general category.
Taking a restrictive interpretation it can neither be said that
there is any specific direction of the High Court to quash
clause-3 of the notification nor there is any direction to the
respondents to make necessary changes in the Rules for
future examinations. At the same time, going by the detailed
discussion on clause-3(iv) of the notification for CSE, 2008
it is apparent that it is this clause which has not been found
to be consistent with Articles 14 and 16 of the Constitution
of India. Here the High Court has drawn parallel with the
judgment of the same High Court in Writ Petition
No.4881/2009 etc. dated 12.06.2009. In such a situation, it is
possible to take a view that clause 3(iv) of the notification
dated 29.12.2007 was also quashed by the High Court by
implication, though there was no specific order to this effect.
However, even if this interpretation is taken, quashing of this
clause will not be automatically applicable to the
Notification for CSE for the subsequent years unless similar
changes are made in the rules notified by the DoPT, which
are statutory in nature. In this connection we would refer to
the decision of the Hon'ble Supreme Court relied upon by
the learned counsel for the respondents in the case of Vijay
Singh & Others (supra), where it has been observed, just to
recall, "that the cases in which recruitment and conditions
of service including seniority are regulated by the law
enacted by the Parliament or the State Legislature or the
Rules framed under Article 309 of the Constitution, the
general proposition laid down in any judgment cannot be
applied dehors the relevant statutory provisions and dispute
relating to seniority has to be resolved keeping in view such
provisions." We also agree with the other two arguments
taken by the learned counsel for the respondents that
applicant cannot challenge the Rules for CSE, 2012 in
March, 2013 when he had already appeared in the
Preliminary and Main Examinations in 2012 conducted
under the same Rules. Also that the applicant is an
intervenor in the SLP filed before the Hon'ble Supreme
Court (CC-10974/2013) against the said judgment of the
Madras High Court."
W.P.(C) 7377/2013 Page 5
7. The petitioner contends that the CAT's reasoning distinguishing
M. Selvakumar (supra), (which had, declared that OBC candidates
who were disabled were entitled to three extra attempts), was
erroneous. It was submitted that the judgment binds the respondents,
particularly, the UPSC. It is argued in this regard that the UPSC
preferred SLP(C) 21587/2013 after the decision but the Supreme
Court has not yet set aside the Madras High Court's view. Such being
the case, the prevailing view on the entitlement of the disabled OBC
candidates had to be respected by the UPSC which was a party to the
proceedings in M. Selvakumar (supra). So far as the question of
suppression of facts etc. was concerned, learned counsel highlighted
that the CAT itself did not accept the submission and did not premise
the rejection of the petitioner's O.A. before it on that ground.
8. The petitioner also relied upon the averments made by the
UPSC in its special leave petition (SLP) to the effect that M.
Selvakumar (supra) has universal application. He also relied upon a
Division Bench ruling in Anmol Bhandari v. Delhi Technological
University (WP 4853/2012 decided on 12.09.2012) for the proposition
that the level of backwardness of persons with disabilities is akin to
socially disadvantaged candidates, such as, those belonging to SCs
and STs.
9. The UPSC contends, through it counsel, that the judgment in M.
Selvakumar (supra) has no universal application and, in fact, it
amounts to a declaration in personam, i.e. none except M. Selvakumar
could claim entitlement to more than seven attempts in the category of
OBC disabled candidates. Till such time the Supreme Court affirms
W.P.(C) 7377/2013 Page 6
the decision, no candidate has a right to claim entitlement of more
than seven attempts. Learned counsel emphasized that the petitioner
had exhausted the number of attempts permissible to him, i.e. seven
and that in the absence of a challenge to the rules, he could not have
unilaterally relied upon M. Selvakumar (supra) and assumed that he
had a right to appear in CSE-2012 which, in effect, constituted his
eighth attempt. Learned counsel for the UPSC, therefore, urged that
the petition has to be dismissed.
Analysis & Conclusions
10. The CAT upheld UPSC's rejection of the petitioner's
candidature in CSE-2012 on the ground that he had already appeared
seven times in previous examinations. There is no dispute that till
2007, open merit disabled candidates were permitted only four
attempts. This was increased later to seven attempts. The OBC
candidates were entitled and continued to be entitled to seven
attempts. However, the number of attempts in the case of those OBCs
who are also persons with disabilities continued to be the same, i.e.
seven. As far as the SC/ST candidates are concerned, there is no
restriction on the number of attempts; that position exists for SC/ST
candidates who are also disabled. In these circumstances, the question
which arose before the Madras High Court in M. Selvakumar (supra)
was whether the equation of OBC candidates with OBC disabled
candidates who belong to OBC amounts to treating equals unequally.
The Madras High Court, on that occasion, held that such OBC
candidates who are also disabled would be entitled to an increase in
the number of permissible attempts like in the case of general category
W.P.(C) 7377/2013 Page 7
candidates who are entitled to a higher number of attempts, and
declared that three additional attempts ought to be given. The relevant
reasoning of the Madras High Court in this regard is as follows:
"6. A reading of clause 3(iv) of the Notification referred
to above makes it very clear that the number of attempts for
physically challenged candidates in the General Category
has been increased from four to seven. However, the same
benefit has not been proportionately extended to physically
handicapped candidates in the Other Backward Class
community. It is seen from the materials available on record
that the petitioner made an attempt in the examination
conducted during the year 2007 for the eighth time and also
made an attempt in the examination conducted during the
year 2008 for the nineth time and since his name did not
appear in the list of candidates who cleared the preliminary
examination for the year 2007, he made an application
under the Right to Information Act to find out as to why his
candidature was not considered. Thereafter, he was
informed that, as he had already exhausted seven attempts,
his candidature was not considered. 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 the case relied upon by the learned counsel
appearing for the petitioner and referred to above, the
Railway Board, while relaxing the upper age limit in respect
of OC and BC candidates, failed to relax the upper age limit
in respect of candidates belonging to SC/ST candidates. The
W.P.(C) 7377/2013 Page 8
Division Bench comprising of one of us (Justice Elipe
Dharma Rao), held that, when the minimum age limit
prescribed for the candidates belonging to OC and OBC
candidates is relaxed, the same has to be extended to the
candidates belonging to SC/ST, by virtue of which action, no
benefit was extended to SC/ST candidates and on the other
hand, it has only benefited OC and OBC candidates, which
decision of the Railway Board is arbitrary and prejudicial to
the interest of the candidates belonging to SC/ST community,
thereby offending Articles 14 and 16 of the Constitution of
India. 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 the Other Backward community.
The Tribunal, without going into the merits of the case, has
dismissed the original application, by tagging the same
along with the miscellaneous petition filed for condonation
of delay. Therefore, the order under challenge is set aside
and the writ petition is allowed. The petitioner is entitled to
get relaxation in the number of attempts as has been granted
to physically handicapped candidates belonging to the
General category. No costs."
10. It is evident from the above that facially the Madras High Court
was not concerned only with the petitioner Selvakumar, but the policy
of the respondents in permitting the same number of attempts to OBC
candidates - regardless of whether they were labouring under any
disability or not was at issue. This uniform application of that policy
was held to be discriminatory. The UPSC's contention that it did not
amount to declaration of law or judgment in rem is contradicted by its
following averment in the SLP - a copy of which was made available
to the Court during the hearing:
W.P.(C) 7377/2013 Page 9
"...................whereby the High Court erroneously allowed
writ petition holding that increasing the number of attempts
in respect of physically handicapped candidates in the
General Category from four to seven and not been extended
to physical handicapped candidate belonging to other
Backward Class community was arbitrary and prejudicial as
they continue to enjoy only 7 attempts as ever before. High
Court found that there ought to have been a corresponding
increase of 3 more attempts for physically handicapped
candidates belonging to OBC category.
XXXXXX XXXXXX XXXXXXX
5. GROUNDS
XXXXXX XXXXXX XXXXXXX
(C) THAT, High Court erred in law in not appreciating
the object and reason for an increase in the number of
attempt from four to seven for the physically handicapped in
the general category.
(D) THAT, High Court erred in law in holding that since
the number of attempt for those physically handicapped
category candidates belonging to General Category was
increased from 4 to 7, correspondingly for OBC candidate
with physical disability the same should also be increased by
3 attempts.
(E) THAT, High Court had erred in law in not
appreciating that an increase in the number of attempt
available to PH candidates belonging to general category
would not automatically confer a right for increasing the
number of attempts in the same manner by three times to the
PH candidates belonging to category other than the
general."
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
W.P.(C) 7377/2013 Page 10
not find any reason to differ from M. Selvakumar (supra). In this
context, the reasoning in Anmol (supra) that persons with disability
labour under similar and identical disadvantages as reserved category
(SC/ST) personnel is apt. In Anmol (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.
12. This Court holds that the reasoning in M. Selvakumar (supra) is
justified having regard to the fact that OBCs are seen to be less
disadvantaged than the general merit candidates. Once the disabled
general merit candidates are afforded an increase in the number of
attempts, similarly, increase in the number of attempts ought to be
W.P.(C) 7377/2013 Page 11
permitted to OBC candidates who are also disabled. The State's
recognition of that OBCs, as a class, suffer from disadvantages, and
the concession of allowing OBC candidates seven attempts was meant
for all able bodied candidates. The State's concern in granting
additional accommodation to persons with disabilities is reflected by
the increase in the number of permissible chances, to such disabled
candidates, who do not belong to any reserved category by three. This
equalized the disabled non-reserved candidates, with those who were
able bodied OBC category candidates, and amounted to "reasonable
accommodation" visualized by Article 2 of the Convention on Rights
of Persons with Disabilities (CRPD) to which India is a signatory and
which is the underlying impetus for enactment of the Persons with
Disabilities (Prevention of Discrimination) Act, 1995. Reluctance to
grant similar additional chances to OBC candidates with disabilities,
in the opinion of the court, amounts to discrimination. In this context,
this Court is mindful of the decision in Deaf Employees Welfare Assn.
v. Union of India 2014 (3) SCC 173. The petitioner claimed grant
equal transport allowance to its government employees suffering from
hearing impairment as was being given to blind and other disabled
government employees. The allowance given to the hearing impaired
employees was significantly lower than the allowance granted to
employees with other disabilities. The Supreme Court allowed the
petition and directed the Respondents to grant transport allowance to
speech and hearing impaired persons also on par with blind and
orthopaedically disabled government employees. The court held that
"there cannot be further discrimination between a person with
disability of 'blindness' and a person with disability of 'hearing
W.P.(C) 7377/2013 Page 12
impairment'. Such discrimination has not been envisaged under the
Disabilities Act." The Court ruled that equality of law and equal
protection of law afforded to all persons with disabilities while
participating in government functions and the assumption that a
hearing or speech impaired person is suffering less than a blind person
is, in effect, marginalizing them; and as such, the same benefits must
be given to them, as are awarded to blind citizens. Any move by the
state to further this objective is rooted in principles enshrined in
Articles 14. This case held that deaf should also be given
transportation allowances on par with blind and orthopedically
handicapped employees of the government. Thus, within the class of
persons with disabilities, the rule of accomodation adopted by the
Union government in the matter as regards chances to attempt the civil
services examinations has to be identical, i.e three chances more than
what is given to the class of candidates who are "normal" or "able-
bodied" i.e not suffering from any disability.
13. So far as the question of suppression of material facts is
concerned, the CAT itself was of the opinion that if the logic and ratio
in M. Selvakumar (supra) were to prevail, the UPSC's objection on
that score would be irrelevant. In view of the above reasoning - that
M. Selvakumar (supra) has to prevail, this Court is of the opinion that
the petitioner's claim for an eighth time was justified.
14. For the foregoing reasons, the impugned order is hereby set
aside. O.A. No.930/2013 is allowed to the extent that a declaration is
issued that the petitioner and other similarly situated OBC candidates
who are disabled are entitled to a maximum of ten attempts instead of
W.P.(C) 7377/2013 Page 13
seven attempts in terms of CSE-2012. The cancellation of petitioner's
candidature is, therefore, set aside. The respondents are directed to
declare the petitioner's result and in case he is deemed successful,
process his claim for appointment to the concerned service and pass
consequential orders in accordance with the applicable rules within
eight weeks from today.
15. The writ petition is allowed in the above terms along with the
pending application.
Order dasti.
S. RAVINDRA BHAT
(JUDGE)
VIPIN SANGHI
(JUDGE)
OCTOBER 13, 2014
'ajk'
W.P.(C) 7377/2013 Page 14
