Punjab-Haryana High Court
Hitesh vs Union Of India And Anr on 24 November, 2023
Neutral Citation No:=2023:PHHC:150051
CWP-29863-2022 -1- 2023:PHHC:150051
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
116 CWP-29863-2022
Date of Decision : 24.11.2023
Hitesh ......... Petitioner
Versus
Union of India and another ......... Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr.Naman Jain, Advocate
for the petitioner.
Mr. Pankaj Gupta, Sr.Panel Counsel
for the respondents-UOI.
****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles 226/227
of Constitution of India is seeking direction to the respondents to consider
him under PwD category instead of general category.
2. The petitioner is a person with benchmark disability. The
petitioner applied pursuant to advertisement dated 23.12.2021 of Combined
Graduate Level Examination, 2021 for filling up of various Groups B and C
posts in different departments of Government of India. It was a four stages
exam i.e. Tier-1, Tier-II, Tier-III and Tier-IV. The petitioner applied under
general category, though, he was suffering from benchmark disability. The
petitioner appeared in Tier-1 examination on 20.04.2022 and successfully
qualified. The petitioner was allowed to appear in Tier-II and Tier-III
examination. The petitioner appeared in Tier-II exam held on 08.08.2022
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and Tier-III examination held on 21.08.2022. The respondent on
15.10.2022 declared result of Tier-II examination. The petitioner could not
qualify under general category. The petitioner, on 21.12.2022, came to be
issued disability certificate by competent authority wherein the petitioner
was declared as person suffering from mental ailment to the extent of 71%
which is more than benchmark disability i.e. 40% under PwD Act. The
petitioner applied for the change of category.
3. The respondent did not pay heed to the request of the petitioner
and he preferred the present petition before this Court. By interim order
dated 22.12.2022 passed by this Court, the petitioner was permitted to
participate in Tier-IV exam under PwD category. The petitioner cleared
Tier-IV exam under PwD category though he was unsuccessful under
general category.
4. Learned counsel for the petitioner submits that as per
notification dated 02.02.2022 issued by Ministry of Personnel, Public
Grievances and Pensions (DoPT), with respect to Civil Services
Examination, a candidate who becomes a person with benchmark disability
during the course of examination process may produce valid document for
the consideration under the said category. The petitioner was suffering
from disability, however, he was not having requisite certificate which was
mandatory, thus, he applied under general category. During the process of
examination, he got certificate from the competent authority and
accordingly requested respondent to consider his candidature under PwD
category. The petitioner has secured requisite marks and successfully
cleared Tier-IV stage, thus, the petitioner deserves to be considered under
PwD category. A number of posts are lying vacant with respondent, thus,
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no prejudice is going to be caused to respondent.
5. Counsel for the petitioner relied upon order dated 14.11.2022
passed by this Court in CWP No.12949 of 2017 titled as "Anil Singla vs.
State of Haryana and another".
6. Per contra, learned counsel for the respondent submits that
respondent cannot travel beyond the advertisement as well as rules
governing Combined Graduate Level Examination. Clause 6.2 of the
advertisement read with Clause 23 provides that candidates seeking
reservation under SC/ST/OBC/EWS/PWD must ensure that they are
entitled to such reservation as per eligibility prescribed in the notice. The
last date for claiming benefit under these categories was 23.01.2022
whereas the petitioner furnished disability certificate after November' 2022.
The category of the petitioner at the belated stage could not be changed.
7. I have heard the arguments of learned counsel for the parties
and perused the record.
8. The conceded position emerging from record is that the
respondent issued advertisement on 23.12.2021 inviting applications for
Combined Graduate Level Examination, 2021. The crucial date for
claiming SC/ST/OBC/EWS/PWD status was closing date of receipt of
online applications i.e. 23.01.2022. The petitioner is suffering from
disability, however, he applied under general category. The petitioner
cleared Tier-I exam and he was permitted to participate in Tier-II and Tier-
III exam. The petitioner did not clear Tier-II exam under general category
so he was not eligible to participate in Tier-IV exam. The petitioner by way
of interim order dated 22.12.2022 passed by this Court was permitted to
participate in Tier-IV exam. The petitioner could not score requisite marks
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under general category, however, if he is considered under PwD category
he has qualified. The petitioner is relying upon Clause 26 of notification
dated 02.02.2022 issued by DoPT with respect to Civil Service Exam. The
said Clause reads as :
Change of Category :
26.(1) If the category indicated by a candidate in the
application form for the Civil Services (Preliminary)
Examination is unreserved category but the candidate
subsequently writes to the Commission to change the
category to a reserved one, such request shall not be
entertained by the Commission. Further, once a
candidate has chosen a reserved category, no request
shall be entertained for change to other reserved
category viz. SC to ST, ST to SC, OBC to SC/ST or
SC/ST to OBC, SC to EWS. EWS to SC, ST to EWS, EWS
to ST, OBC to EWS, EWS to OBC, etc. No Reserved
category candidates other than those recommended on
General Merit shall be allowed to change their category
from reserved to unreserved or claim the vacancies
(Service Cadre) for unreserved category after the
declaration of final result by UPSC Further, no
candidate belonging to any sub-category of Persons
with Benchmark Disabilities (PwBD) shall be allowed to
change the sub-category of disability,
(2) While the above principle will be followed in
general, there may be a few cases where there was a
gap of not more than 3 months between the issuance of a
Government Notification enlisting a particular
community in the list of any of the reserved communities
and the date of submission of the application by the
candidate. In such cases, the request of change of
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category from unreserved to reserved may be
considered by the Commission on merit.
(3) In case of a candidate becoming a candidate
belonging to Persons with Benchmark Disability
category during the course of the examination process,
the candidate must produce valid document of acquiring
a disability to the extent of 40% or more as defined
under the RPwD Act, 2016 to consider drawing the
benefits of reservation as available to the Persons with
Benchmark Disability (PwD) category.
9. The respondent is relying upon clause 6 as well as clause 23 of
the advertisement. Clause 6 prescribes process of certification & format of
certificates and Clause 23 encompasses important instructions to
candidates. The relevant extracts of Clause 6 and 23 of the advertisement
are reproduced as below :
Process of Certification and Format of Certificates:
X X X X
6.2 Crucial date for claim of SC/ST/OBC/EWS/PwD
status or any other benefit viz. fee concession,
reservation, age-relaxation, etc, where not specified
otherwise, will be the closing date for receipt of online
applications i.e. (23-01-2022).
X X X X
23 Important Instructions to Candidates
(a) to (c) X X X X
(d) Candidates seeking reservation benefits available
for SC/ST/ OBC/ EWS/PwD/ ESM must ensure that they
are entitled to such reservation as per eligibility
prescribed in the Notice. They should also be in
possession of the certificates in the prescribed format in
support of their claim.
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(e) to (i) X X X X
(j) Before submission of the corrected/ final online
application as the case may be, candidates must check
that they have filled correct details in each field of the
form. After submission of the corrected/ final online
application form OR expiry of the period of 'Window for
Application Form Correction', no change /correction/
modification will be allowed under any circumstances.
Requests received in this regard in any form like Post,
Fax, Email, by hand, etc. shall not be entertained by the
Commission and will be summarily rejected."
10. From the perusal of Clause 26 of notification issued by DoPT,
it is evident that if a candidate applies under general category he cannot be
permitted to change his category to a reserved category. In case, a
candidate becomes a person belonging to persons with benchmark
disability, during the course of examination process, he may be considered
under PwD category. There is nothing on record to disclose that the
petitioner became disable during the course of examination process. The
petitioner is relying upon sub-clause (3) of clause 26, however, petitioner
has ignored mandate of clause 26 (1) of the aforesaid notification. Sub-
clause (3) is applicable where a candidate suffers disability during the
course of examination process. Sub-clause (3) is not applicable to a
candidate who is disabled prior to commencement of examination process.
It is further apt to notice that aforesaid notification is applicable to Civil
Services Exam and it is not applicable to all the examinations conducted by
different authorities though inference in an appropriate case may be drawn
from the said notification.
11. The petitioner is bound by terms and conditions of the
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advertisement. Clause 6.2 specifically provides that crucial date for claim
of reservation would be closing date of receipt of online applications i.e.
23.01.2022. General instructions adumbrated in Clause 23 clearly provides
that a candidate seeking reservation under PwD category must ensure that
he is entitled to such reservation and he is in possession of certificate in
support of his claim. No candidate is permitted to change or correct or
modify any particular of the application.
12. The petitioner applied under general category and he
participated in the examination process as a general category candidate.
The petitioner was not having disability certificate even on the date of
participating in the examination process. The petitioner cleared Tier-I
exam under general category, however, he could not crack Tier-II exam
under general category. At this stage, he got certificate under PwD
category and asked the respondent to consider his claim under PwD
category. It is apt to notice that petitioner even did not apply for disability
certificate prior to participating in the examination process. It is not a case
of the petitioner that he applied to a competent authority for requisite
certificate prior to filing online application. The last date for filing online
application was 23.01.2022 whereas the petitioner secured disability
certificate on 21.11.2022. The petitioner filed even application before
competent authority seeking disability certificate post 23.01.2022.
13. A two-judge Bench of Supreme Court in J & K Public Service
Commission vs. Israr Ahmad and ors., 2005(12) SCC 498 has held that a
candidate cannot be permitted to claim benefit of reservation after
participating in the examination process.
In the said case, the petitioner after passing preliminary
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examination claimed benefit of reservation. A single judge of High Court of
J & K held that a candidate was not entitled to benefit of reservation,
however, a Division Bench extended benefit of reservation. The Apex
Court reversed judgment of Division Bench holding that a candidate cannot
be permitted to claim benefit of reserved category after last date of
submitting application. The relevant extracts of the judgment read as :
3. The first respondent thereafter challenged the
selection by filing a writ petition and the learned Single
Judge of the High Court of Jammu and Kashmir held
that the first respondent was not entitled to the benefit of
reservation based on SRO 126 of 1994 as he had not
indicated in his application for the preliminary
examination that he was entitled to such benefit. The
writ petition filed by the first respondent was dismissed
and he challenged the same by way of LPA (SW) No. D-
29 of 2002 and the Division Bench of the High Court of
Jammu and Kashmir held that the first respondent
herein in fact possesses the eligibility for being
considered in the reserved category even before the date
of advertisement and he submitted his proof only later
and that by itself did not disentitle him from claiming
the reservation. Accordingly, the LPA was allowed and
the direction to treat him under the reserved category
was issued. This is challenged before us by the Public
Service Commission.
4. Learned counsel for the Commission submits that
as the last date for submitting the application was
16-3-1999 the respondent did not produce the certificate
claiming reservation nor did he indicate in the
application that he belongs to that category. It was
submitted that several other applications of similar
nature were rejected by the Commission and the
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respondent's application also was treated alike and the
Division Bench erred in coming to the conclusion that
he was entitled to get reservation. Counsel for the
respondent on the other hand pointed out that though
the first respondent did not avail of the benefit of
reservation when he submitted the application for the
preliminary examination he had submitted the
application for the main examination in which he had
clearly shown that he was entitled to get reservation as
per SRO 126 of 1994 dated 20-6-1994 and he had also
produced the certificate along with the application for
the main examination. It is submitted that he had
claimed the reservation for the main examination and he
should have been treated as a reserved candidate in the
main examination.
5. We have considered the rival contentions
advanced by both the parties. The contention of the first
respondent cannot be accepted as he has not applied for
selection as a candidate entitled to get reservation. He
did not produce any certificate along with his
application. The fact that he has not availed of the
benefit for the preliminary examination itself is
sufficient to treat him as a candidate not entitled to get
reservation. He passed the preliminary examination as a
general candidate and at the subsequent stage of the
main examination he cannot avail of reservation on the
ground that he was successful in getting the required
certificate only at a later stage. The nature and status of
the candidate who was applying for the selection could
only be treated alike and once a candidate has chosen to
opt for the category to which he is entitled, he cannot
later change the status and make fresh claim. The
Division Bench was not correct in holding that as a
candidate he had also had the qualification and the
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production of the certificate at a later stage would make
him entitled to seek reservation. Therefore, we set aside
the judgment of the Division Bench and allow the
appeal.
No costs.
14. The case of the petitioner is squarely covered by aforesaid
judgment. In the case in hand, the petitioner neither applied under PwD
category nor was possessing disability certificate on the date of application.
The petitioner appeared in the exam under general category and on being
declared unsuccessful under general category furnished disability certificate
claiming reservation under PwD category.
15. In the wake of above discussion and findings, this Court is of
the considered opinion that the present petition sans merit and deserves to
be dismissed and accordingly dismissed.
16. Before parting with the judgment, this Court finds it
appropriate to observe that as per petitioner a number of posts are still lying
vacant and petitioner has qualified under PwD category, therefore, the
dismissal of this petition would not inhibit the respondent to consider
petitioner under PwD category, if at any stage, it is found appropriate by
respondent.
( JAGMOHAN BANSAL )
24.11.2023 JUDGE
anju
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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