BABITA PATHAK Vs. HIGH COURT OF DELHI

JUDGEMENT

(1.) These writ petitions concern the Delhi Judicial Service Examination 2010. The High Court of Delhi (Respondent No.1) had issued a notification dated 26.10.2009 with regard to the holding of the Delhi Judicial Service Examination in respect of 60 vacancies. 27 vacancies were for the General category, 14 vacancies were for the Scheduled Caste category, 14 were for the Scheduled Tribes category and 5 vacancies were reserved for the physically handicapped persons (blind / low vision). It may be pointed out at this stage itself that out of these five vacancies, which were reserved for physically handicapped persons, one vacancy was carried forward and advertised for the fifth time, one vacancy was carried forward and advertised for the third time, two vacancies were carried forward and advertised for the second time and one vacancy was advertised for the first time.

(2.) The main controversy is with regard to the manner in which the five vacancies for the physically handicapped persons are to be filled. The petitioners in these writ petitions are all persons belonging to the General category. In the final result that was declared for the said DJS Examination 2010, the petitioner No.1 in WP(C) 997/2011, was placed at S.No.30 in the order of merit. Similarly, the petitioner No.2 in that writ petition was at S.No.31 and the petitioner No.3 was at S.No.34. The petitioner in WP(C) No.3251/2010, namely, Deepti, had, in fact, not even qualified in the preliminary examination and was at No.4 after the candidates who had made the cut-off for the main examination. However, by an interim order dated 31.05.2010 in CM No. 6484/2010 in WP(C) 3251/2010, the said Deepti was permitted to appear for the main examination, subject to the final outcome of the writ petition. Deepti has been placed at S.No.32 after the final merit list was taken out. The case of the petitioners is essentially that the seats reserved for the physically handicapped persons cannot be carried forward without a time-cap. According to them, Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995 (hereinafter referred to as 'the said Act') contemplates the carrying forward of a vacancy reserved for the physically handicapped person for only one year. Section 36 of the said Act reads as under:-

(3.) It has been contended that the provision is mandatory, in the sense that it uses the word "shall" when it directs that if, even after carrying forward of a vacancy to the succeeding recruitment year, no suitable person with disability is available even by interchange among the three categories (blind or low vision; hearing impairment; locomotor disability or cerebral palsy), then the employer is mandated to fill up the vacancy by appointment of a person other than a person with disability. The emphasis is on the phrase "the employer shall fill up". According to the learned counsel for the petitioners, the use of the word "shall" clearly implies that a duty has been cast upon the employer to fill up the vacancy in such an eventuality by appointment of a person other than a person with disability. Since a duty has been cast on the employer, it implies that the persons belonging to the General category would have a right to be employed in such eventuality provided they are suitable and there are vacancies. In this backdrop, it has been contended that there were 27 General category vacancies, all of which have been filled by the first 27 candidates in order of merit. However, the 5 vacancies for the persons with disability remained unfilled. By virtue of Section 36 of the said Act, 4 out of these 5 vacancies were carried forward from earlier recruitment years and, therefore, ought to have been released for being filled up by persons from the General category. If this were to be so, 4 vacancies would be available for being filled up by the General category. It was contended that the persons who were placed at ranks 28 th and 29 th of the merit list after the final examination and interview, had opted out of contention and, therefore, the petitioner Nos.1 & 2 in WP(C) 997/2011 and the petitioner in WP(C) 3251/2010 would have a right to be appointed against the said four vacancies as they would be the next three persons in order of merit having the ranks of 30, 31 and 32. Insofar as the petitioner No.3 in WP(C) 997/2011 is concerned, his case is different. He does not make the argument with regard to the vacancies for persons with disability inasmuch as, even if he were to take that argument, he would not qualify as he is not within the next four candidates after the selected candidate at S.No.27. This is so because his rank was 34. Consequently, his argument is based on an entirely different footing and that is that there were 14 Scheduled Tribe vacancies advertised, but only one could be filled because of non-availability of suitable candidates belonging to that category. The argument is that such a large number of seats go-a-begging because of the non-availability of the Scheduled Tribe candidates in Delhi and, therefore, such seats should be de-reserved and, if that were to happen, then the petitioner No.3 in WP(C) 997/2011 would be in the reckoning for appointment. We may observe at the outset that such an argument is very far-fetched and tenuous. The petitioner No.3 does not have any right to be appointed against an advertised Scheduled Tribe vacancy. It is only if a carry forward or a backlog vacancy is de-reserved after following the due process of law that such a seat would be available for being filled up by a General category candidate. Therefore, the case of the petitioner No.3 in WP(C) 997/2011 is clearly untenable.