Uttarakhand High Court

Yogendra Kumar Shah And Another ... vs State Of Uttarakhand And Others on 6 August, 2025

Author: Ravindra Maithani

Bench: Ravindra Maithani

                                                  Reserved on: 17.07.2025
                                                  Delivered on: 06.08.2025

     HIGH COURT OF UTTARAKHAND AT NAINITAL
             Writ Petition No. 1291 of 2022 (S/S)

Yogendra Kumar Shah and another                    ..........Petitioners

                                   Vs.

State of Uttarakhand and others              ............. Respondents
Present :   Mr. Vinay Kumar, Advocate for the petitioners.
            Mr. Narain Dutt, Standing Counsel for the State of
            Uttarakhand/respondent nos.1 and 2.
            Mr. Ashish Joshi, Advocate for the Uttarakhand Public Service
            Commission/respondent no.3.


                             With
             Writ Petition No. 1295 of 2022 (S/S)
Mohan Chandra and another                          ..........Petitioners

                                   Vs.

State of Uttarakhand and others              ............. Respondents
Present :   Mr. Vinay Kumar, Advocate for the petitioners.
            Mr. Narain Dutt, Standing Counsel for the State of
            Uttarakhand/respondent nos.1 and 2.
            Mr. Ashish Joshi, Advocate for the Uttarakhand Public Service
            Commission/respondent no.3.




                              JUDGMENT

Per: Hon'ble Ravindra Maithani, J.

Since common question of facts and law involved in both

these writ petitions, they are heard together and are being decided

by this common judgment.

2. Heard learned counsel for the parties and perused the

record.

3. The challenge in both these writ petitions is made to the

Final Merit List dated 31.05.2022, published by respondent

no.3/the Uttarakhand Public Service Commission ("the

Commission") on the ground that it violates the provisions of

Section 34(2) of the Rights of Persons with Disabilities Act, 2016

("the Act").

4. Facts necessary to appreciate the controversy briefly

stated are as follows: The Commission issued an advertisement on

04.12.2018, inviting online applications from eligible candidates for

participating in the Uttarakhand Special Subordinate Education

(Lecturer-Group 'C') Service (General and Women's Branch) Exam,

2018, for selection and appointment of Lecturers. The petitioners in

WPSS No.1295 of 2022, applied for the post of Lecturer Chemistry,

General Branch, whereas the petitioners in WPSS No.1291 of 2020

applied for the post of Lecturer Geography, General Branch. All the

petitioners are persons with disability ("PwD") suffering with

Locomotor Disability. They claimed horizontal reservation available

for PwD.

5. The petitioners in WPSS No.1291 of 2022 also claimed

reservation under Scheduled Caste Category. In WPSS No.1295 of

2022, the petitioner no.2 Vinay Uniyal also claimed vertical

reservation under the economically weaker section category.

6. The advertisement made it clear that various posts of

Lecturers in Geography and Chemistry, General Branch were

identified as suitable for appointment of PwD suffering from

different disabilities. After conducting the examination, the result

was declared by the Commission. But, for both the positions i.e.

Lecturer Geography, General Branch and Lecturer Chemistry,

General Branch sufficient number of persons with benchmark

disability were not available. Therefore, those vacancies were

carried forward for the next recruitment year.

7. It is the case of the petitioners that the Commission

issued another advertisement on 12.10.2020 for the posts of

Lecturer Geography and Chemistry, General Branch and this

advertisement included the vacancies, which were carried forward

from the last recruitment pertaining to PwD. The result of

succeeding recruitment year was declared on 31.05.2022, but it is

the grievance of the petitioners that due to non-availability of

suitable persons with benchmark disability, the positions could not

be filled with the suitable persons with benchmark disability. The

vacancies were second time again carried forward. According to the

petitioners, second time the vacancies could not be carried forward

in view of the provisions as contained under Section 34(2) of the

Act. It is the case of the petitioners that they are also PwD suffering

with locomotor disability. They have cleared the screening

examination; their marks have also been published by the

Commission.

8. It is the case of the petitioners that, pursuant to the

advertisement dated 12.10.2020, while preparing the final merit

list, if suitable persons with bench marks disability were not

available, such vacancies could have been filled by interchange

amongst the five categories of disabilities and it is only, when there

is no person with disability for the post in that year, the post could

have been filled by a person other than a person with disability.

But, the vacancies cannot be carried forward second time. The

petitioners did make representations; the petitioners have also

referred to the Government Orders in this regard pertaining to

preparation of Rosters; when no action was taken, the petitioners

have come before this Court.

9. The number of vacancies advertised for persons with

disabilities in the year 2018, and the vacancies that were carried

forward pursuant to subsequent recruitment in the year 2020 of

which result was declared on 31.05.2022 is as below:-

Lecturer Geography, General Branch:-

Sl. No. Vacancies carried forward Post reserved for Vacancies carried pursuant to the persons with forwarded after advertisement dated disabilities in the recruitment 04.12.2018, of which, result advertisement pursuant to was declared on 11.07.2019 dated 12.10.2020 Advertisement (succeeding year) dated 12.10.2020, of which, result was declared on 31.05.2022.

1. SC - 01 - PB SC - 01 - PB SC - 01 - PB SC - 01 - PD SC - 01 - PD SC - 01 - PD SC - 01 - Loc

2. ST - ---- ST - ---- ST - ----

3. OBC - 01 - PB OBC - 01 - PB OBC - 01 - PB OBC - 01 - PD OBC - 01 - PD OBC - 1 - PD

4. ---- EWS - 01 - PD EWS 01 - PD

5. Open - 01 - PD Open - 01 - PB ----

Open -1 - PD Open - 01 - Loc

6. Total - 05 Vacancy Total - 09 Total - 05 Vacancy Vacancy

10. The above Chart reveals that pursuant to the

advertisement dated 04.12.2018, 05 vacancies reserved for PwD in

Lecturer Geography were carried forward by the result dated

11.07.2019. Out of these 05, 04 vacancies were carried forward for

the second time, which is clear by the Final Select List dated

31.05.2022.

Lecturer Chemistry, General Branch:-

Sl. Vacancies carried forward Post reserved for Vacancies carried No. pursuant to the persons with forwarded after advertisement dated disabilities in the recruitment pursuant 04.12.2018, of which, advertisement dated to Advertisement result was declared on 12.10.2020 dated 12.10.2020 of 05.07.2019 (succeeding year) which result was declared on 31.05.2022.

1. SC - 02 - PD SC - 02 - PD SC - 02 - PD SC - 01 - Loc SC - 01 - Loc

2. ST - 02 (01 + 01 (w)-PD ST - 01 - PD ST - 01 - PD

3. OBC - 01 - PD OBC - 01 - PD OBC - 01 - PD OBC - 01 - MD OBC - 01 - MD

4. ---- EWS - 01 - PD EWS - 01 - PD EWS - 01 - MD EWS - 01 - MD

5. Open - 05 - PD Open - 05 - PD Open - 05 - PD Open - 01 - Loc Open - 02 - MD Open - 02 - MD

6. Total - 10 (01 - W) Vacancy Total - 16 Vacancy Total - 15 Vacancy

11. The above chart also reveals that pursuant to the

advertisement dated 04.12.2018, 10 vacancies reserved for PwD in

Lecturer Chemistry were carried forward by the result dated

05.07.2019. Out of these 10, 09 vacancies reserved for PwD were

carried forward for the second time, which is clear by the Final

Select List dated 31.05.2022.

12. It is the case of the petitioners that they are immediately

below the last selected candidate in the category of Locomotor

Disability and could not be selected due to non-availability of the

vacancy in the said category of disability and if, the unfilled

vacancies are interchanged in terms of Section 34(2) of the Act, the

petitioners would have find place in the Final Merit List dated

31.05.2022 (pursuant to the advertisement dated 12.10.2022).

13. The State as well as the Commission, both have filed their

counter affidavits. In its counter affidavit, the State has referred to

the provisions of Section 34(2) of the Act and in para 3 noted that if

in the succeeding recruitment year also suitable person with

benchmark disability is not available, then these vacancies can be

filled by interchange among the five categories and only when there

is no PwD available for the post in that year, the employer can fill

up the vacancy by appointment of a person, other than a PwD. The

State has stated that the selection was done by the Commission

and the Commission has carried forward the same post belonging

to the disability category.

14. The Commission in its separate counter affidavit has

stated that the advertisement dated 12.10.2020 was published

strictly as per requisition sent by the State Government. It is

further the case of the Commission that the posts marked for

disabled persons have been carried forward for the future selection

and it cannot be said that any right of the disabled persons/the

petitioners have been curtailed by the Commission.

15. Learned counsel for the petitioners submits that in the

first recruitment, which was initiated by the advertisement dated

04.12.2018, issued by the Commission, the vacancies could not be

filled due to non-availability of a suitable person with bench mark

disability. Therefore, those posts were carried forward and included

in the subsequent advertisement dated 12.10.2020. But, it is

argued that the vacancies, which were carried forward pursuant to

the advertisement dated 04.12.2018 and included in the

advertisement of the Commission dated 12.10.2020 cannot be

carried forward for the third recruitment year. It would be the

violation of the provisions of Section 34(2) of the Act, which it is

argued mandates, that if in the succeeding recruitment year

suitable person with benchmark disability is not available, it may

first be filled by interchange among the five categories and even if it

is not possible to fill those vacancies, according to it, such post may

be filled up by appointing a person other than a person with

disability. It is argued that the Commission ought not to have

carried forward those post. Therefore, it is argued that the final

select list dated 31.05.2022 to that extent deserves to be modified

and the respondent Commission may be directed to proceed to

declare result in accordance with the provisions, as contained

under Section 34(2) of the Act.

16. In the instant case, interestingly the proposition of law, as

argued on behalf of the petitioners, has not been objected to either

by the learned State Counsel or by the learned counsel for the

Commission. Both have agreed to the proposition of law, as

provided under Section 34(2) of the Act.

17. Learned counsel for the Commission submits that the

Commission issued subsequent advertisement dated 12.10.2020

and as per requisition, the selection has been made. It is argued

that the State Government has not directed the Commission to

interchange the vacancies among the five categories of persons with

bench marked disability.

18. Learned State Counsel would submit that the recruitment

was conducted by the Commission, therefore, it was incumbent to

the Commission to follow the provisions of law, as given under

Section 34(2) of the Act.

19. Before proceeding further, it would be apt to note, as to

what is the provision with regard to reservation for persons with

bench marked disability. Section 34 of the Act makes provisions in

this regard. It reads as follows:-

"34. Reservation.--(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent for persons with benchmark disabilities under clauses (d) and

(e), namely--

(a) blindness and low vision;

(b) deaf and hard of hearing;

(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

(d) autism, intellectual disability, specific learning disability and mental illness;

(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.

(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the

vacancy by appointment of a person, other than a person with disability:

Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.

(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit."

20. A bare reading of the above provision makes it clear that

the posts reserved for bench marked disability have to be filled in

accordance to this provision. In the instant case, sub section (2) to

Section 34 of the Act is relevant. A bare reading of it makes out the

following propositions:-

(i) Vacancies reserved for persons with bench marked disability are to be filled accordingly.

(ii) If in any recruitment year vacancies cannot be filled due to non-availability of suitable persons with benchmark disability or for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year (in the instant case, pursuant to the advertisement dated 04.12.2018 for appointment to the post of Lecturer, result was declared and the vacancies, which could not be filled due to non-availabilities of suitable persons with benchmark disability were carried forward).

(iii) In the succeeding recruitment year, if again suitable persons with benchmark disability is not available, such vacancies may first be filled by interchange among the five categories and if, there is no person with disability available for the post in that year, the employer shall fill up the vacancies by appointment of a person other than a person with disability.

21. In the instant case, pursuant to the advertisement dated

04.12.2018, the result was declared and many vacancies reserved

for persons with benchmark disability were carried forward for the

next recruitment year. For the next recruitment, advertisement was

issued on 12.10.2020. But, when its result was declared on

31.05.2022, the vacancies carried forward from the previous

recruitment year were again forwarded second time. It is

impermissible in view of Section 34(2) of the Act. Therefore, while

allowing the writ petition, the Commission may be directed to

prepare Final Merit List pursuant to the advertisement dated

12.10.2020 for the post of Lecturer Geography and Chemistry,

General Branch, in accordance with the provision of Section 34(2)