Dr. S.S. Hooda, Adv v. AMIT YADAV ANR

Judgment

1. The present petition under Articles 226 read with 227 of the Constitution of India has been filed on behalf of the petitioner namely Comptroller & Auditor General of India1 seeking quashing of the order 1 Hereinafter ―CAG‖ W.P.(C) 5904/2023 Page 1 of 37 Signature Not Verified Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 dated 23.01.2023 passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 339/20222.

2. The relevant facts that led to the filing of the present petition are as under: i. The instant case arises out of the denial of appointment to respondent no. 1 namely Amit Yadav, a candidate (Rank 10521, Roll No. 2201130804) in the Staff Selection Commission‘s Combined Graduate Level Examination, 20183, who had applied for the post of Auditor (Post Code D33)4 in the CAG. Amit Yadav had applied under the Persons with Disabilities - Other category5 and Other Backward Class6 category. ii. The SSC CGLE 2018 was notified on 05.05.2018 to fill various Group ‗B‘ ‗C‘ various Ministries/Departments/Organizations in the Government of India. Thereafter, tentative list of vacancies as on 27.12.2019 for SSC CGLE 2018 was notified by the Staff Selection Commission7 in which under entry no. 24, 2 vacancies were earmarked for the post of Auditor in CAG for ‗Other PwD‘. iii. As part of the application process and selection norms, candidates belonging to reserved categories were required to furnish 2 Hereinafter ―CAT/Tribunal‖ 3 Hereinafter ―SSC CGLE 2018‖ 4 Hereinafter ―subject post‖ 5 Hereinafter ―Other PwD‖ 6 Hereinafter ―OBC‖ 7 Hereinafter ―SSC‖ W.P.(C) 5904/2023 Page 2 of 37 Signature Not Verified Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 certificates of disability in the prescribed format issued by competent medical authorities as per the relevant government notifications. iv. Respondent no. 1 is stated to have been issued a disability certificate dated 02.05.2018, by the Department of Empowerment of Persons with Disabilities, Ministry of Social justice and Empowerment, Government of India, which states that the respondent‘s case pertain to ‗mental illness‘ and that he has 55% of disability. v. Pursuant to respondent no. 1 clearing Tier I and II stages of the SSC CGLE 2018, Tier-III stage was conducted and its result was declared on 30.09.2020 by the SSC for appearing in Skill Test/Document Verification, i.e., Tier-IV (final round of tests) of the said examination. vi. At the time of Tier-IV (final round), on 27.02.2021, the respondent no.1 was asked to mention the posts preference of eligible posts where he selected inter alia the post of Auditor (D33). Thereafter, a final list of vacancies as on 15.03.2021 stood notified by SSC, again containing Auditor - post coded as D33 at entry no. 24, where 2 vacancies were earmarked for the Other PwD category. Pursuant to the same, on 01.04.2021, the final merit list was uploaded on the website where respondent no. 1 stood recommended for the post of Auditor (D33). vii. However, on 28.09.2021, the CAG declared a State/Office Allocation List. In the said list, it was conveyed that the dossiers of Signature Not Verified W.P.(C) 5904/2023 Page 3 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 certain candidates, including that of Amit Yadav, were being returned to the SSC. The dossier was returned due to the reason that the post of Auditor was identified as not suitable for PwBD - mental illness against which respondent no. 1 was recommended. This was followed by a formal letter dated 30.09.2021 from the Office of CAG to SSC, whereby, the rejection of respondent no. 1‘s candidature was reiterated on the aforementioned ground. viii. In response, respondent no. 1 submitted a detailed representation dated 29.09.2021 to the SSC, asserting that the rejection was arbitrary. Subsequently, respondent no. 1 filed two grievances before the Department of Personnel and Training8, bearing Registration Nos. DOPAT/E/2021/09996 DOPAT/E/2021/09998, on 08.10.2021, followed by an email communication dated 23.10.2021 addressed to the Assistant CAG, reiterating his eligibility and requesting appointment. Despite

multiple representations, no affirmative action was taken by either the SSC or the CAG, and respondent no. 1 remained unappointed to the subject post. ix. Aggrieved by the inaction and the return of his dossier, respondent no. 1 filed Original Application No. 339/2022 before the CAT invoking his rights under the Rights of Persons with Disabilities Act, 20169. 8 Hereinafter ―DoPT‖ 9 Hereinafter ―RPwD Act‖ W.P.(C) 5904/2023 Page 4 of 37 Signature Not Verified Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 x. Before the CAT, reliance was placed on Gazette Notification No. 38-16/2020-DD-III dated 04.01.2021 of the Ministry of Social Justice and Empowerment, Department of Empowerment of Persons with Disabilities (Divyangjan)10. Respondent no. 1 had contended that the said notification explicitly includes mental illness as a benchmark disability suitable for the post of Auditor. This inclusion is reflected at ‗Page 1824‘of the Notification dated

04.01.2021, which is corresponding to the subject post. xi. By a final order dated 23.01.202311, the learned Tribunal allowed the said Original Application directing the CAG to constitute a Medical Board to assess his fitness for the duties associated with the post of Auditor. The learned Tribunal further directed that in the event respondent no. 1 is found fit by the Medical Board, he shall be given appointment to the post in question. Challenging the said order, the CAG has filed the instant writ petition. Submissions on behalf of the petitioner

3. Dr. S.S. Hooda, learned counsel appearing on behalf of the CAG made the following averments to challenge the impugned order: i. It is submitted that respondent no. 1 was recommended through SSC CGLE 2018 under the Other PwD Category, specifically citing 55% benchmark disability due to mental illness. Upon receiving the dossier of respondent no. 1, the petitioner evaluated the post of ―Auditor‖ and found it unsuitable for the benchmark disability i.e., 10 Hereinafter ―Notification dated 04.01.2021‖ W.P.(C) 5904/2023 Page 5 of 37 Signature Not Verified Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 mental illness; in terms of minutes of meetings dated 07.12.2017, letter dated 09.07.2018 (along with the list of identified suitable posts), letter dated 14.09.2018 along with OM dated 15.01.2018 and minutes of the meeting dated 14.05.2018 as well as due to the fact that the ‗mental illness‘ category was not earmarked for the subject post in the SSC CGLE 2018 advertisement. There was no specific reservation for persons suffering from ‗mental illness‘ for any post whatsoever in the advertisement of SSC CGLE 2018 itself. Consequently, by official communication dated 30.09.2021, the dossier of respondent no. 1 was returned by the CAG to the SSC in light of the nature of the disability and its unsuitability. ii. The learned Tribunal‘s directive to constitute a Medical Board amounts to judicial overreach into a domain that squarely falls within administrative discretion. iii. Learned counsel submitted that taking into consideration of Sections 33 and 34 of the RPwD Act as well as minutes of meetings dated 07.12.2017, an expert committee was constituted to identify suitable posts in the petitioner department. Based on the physical requirement and functional classification for discharge of the duties for respective Group ‗B‘ and ‗C‘ posts, suitable posts for Persons with Benchmark Disabilities12 were identified and prescribed. iv. Accordingly, SSC was intimated vide letter dated 09.07.2018 (along with the list of identified suitable posts) and letter dated 11 Hereinafter ―impugned order‖ 12 Hereinafter ―PwBD‖ W.P.(C) 5904/2023 Page 6 of 37 Signature Not Verified Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45

14.09.2018 along with OM dated 15.01.2018, about the posts suitable for PwBD in which vacancies were to be filled. Pertinently, the subject post was not identified for the benchmark disability – mental illness. The Annexure to the aforesaid letters and OM shows that for the post of Auditor in Indian Audit and Accounts Department13, the permitted benchmark disabilities are – ‗deaf and hard of hearing; locomotor disability; leprosy cured; dwarfism; acid attack victims and multiple disabilities from the mentioned disabilities‘. Evidently, the disability of ‗mental illness‘ does not find a mention as one of the specified disabilities. v. The learned Tribunal failed to consider the minutes of meetings dated 07.12.2017, letter dated 09.07.2018 (along with the list of identified suitable posts), letter dated 14.09.2018 along with OM dated 15.01.2018 and minutes of the meeting dated 14.05.2018, wherein a detailed job-function analysis was conducted by IA & AD, and it was concluded that the post of Auditor is not suitable for candidates who fall under the PwBD - mental illness. vi. The learned Tribunal erred in directing appointment subject to determination of suitability by a Medical Board, when the appointment itself was never processed owing to non-availability of a suitable vacancy for the subject post since the same was not identified by the concerned department. vii. Further, reliance is placed on a decision dated 27.03.2023 by the Chief Commissioner for Persons with Disabilities, wherein it was 13 Hereinafter ―IA & AD‖ W.P.(C) 5904/2023 Page 7 of 37 Signature Not Verified Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 held that the Notification dated 04.01.2021 cannot retrospectively apply to vacancies advertised prior to its issuance (i.e., SSC CGLE 2018). viii. Dr. S.S. Hooda submitted that primary takeaway from the aforesaid meetings and letters/OM is that if a particular sub-category of disability cannot be accommodated, a conscious decision can be taken to exclude that category. Further, if exemption is sought from all five categories of disabilities (in terms of Section 34 of the RPwD Act), only then consultation with the Chief/State Commissioner is necessary and that even if any particular sub- category is excluded, the mandate of 4% reservation is required to be followed. ix. It is to be noted that the petitioner has not sought any relaxation/exemption and thus, no consultation was necessary and the department was empowered to make a conscious decision. Thus, it is prayed that the impugned order, being bad in law, may be set aside. Submissions on behalf of respondent no. 1

4. Per Contra, Mr. Kaoliangpou Kamei, learned counsel appearing on behalf of respondent no. 1 advanced the below mentioned contentions: i. It is submitted that respondent no. 1 was duly recommended through the SSC CGLE 2018 under the Other PwD Category, with a certified benchmark disability of 55% and had opted for post code Signature Not Verified W.P.(C) 5904/2023 Page 8 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 D33 – Auditor. He was declared successful and all requisite formalities, including document verification and submission of disability certificate, were completed. ii. Data Verification Sheet dated 27.02.2021 explicitly declared his eligibility for the post code D33. The final result notification dated

01.04.2021 included his name in the merit list under Other PwD Category. However, vide letter dated 30.09.2021, the CAG returned his dossier to SSC, stating that his disability is not suitable for the subject post. The respondent submitted that this was an arbitrary action on the petitioner‘s part. iii. Respondent no. 1 has placed strong reliance on the Notification dated 04.01.2021. It is argued that Note 5 of the said notification clarifies that posts with similar job profiles and work environments are deemed suitable even if not explicitly named. The respondent specifically relies upon Page 1824 of the aforementioned notification, which includes the post of ―Auditor‖ as expressly suitable for persons with mental illness, subject to standard working conditions. iv. It is argued that the petitioner‘s contention that the said Gazette Notification cannot be retrospectively applied to the CGLE 2018 recruitment process is misconceived. Respondent no. 1 emphasizes upon the fact that the final result of SSC CGLE 2018 was declared by SSC only on 01.04.2021, by which date the Gazette Notification dated 04.01.2021 was already in force. Further, the Data Verification Sheet issued on 27.02.2021, authenticated by SSC, Signature Not Verified W.P.(C) 5904/2023 Page 9 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 confirmed that the respondent was eligible for the post of Auditor under post code D33. Therefore, the claim of prospective inapplicability is factually untenable and legally unsustainable. v. Learned counsel submitted that respondent no. 1 also filed two online grievances on 08.10.2021 before the DoPT bearing Registration Nos. DOPAT/E/2021/09996 DOPAT/E/2021/09998, highlighting that the Data Verification Sheet itself mentioned that he was eligible for post code D33, and that the CAG‘s unilateral decision to return the dossier violated the statutory safeguards conferred under the RPwD Act, particularly Sections 3, 20, and 34 thereof. However, no redressal was granted. vi. The impugned order has been passed rightly and in accordance with the law since it reiterates that the Notification dated 04.01.2021, which was in force at the time of final selection and allocation, is binding on all departments including the CAG, and cannot be overridden by departmental minutes or internal assessments, especially when mental illness was officially included in the suitability matrix under the Act. vii. It is argued that the refusal to constitute a Medical Board, and the unilateral rejection of his candidature without any individualized assessment, violates his rights enshrined under the Constitution of India, which prohibits exclusion of any person with disability from employment opportunities on the ground of disability alone. The learned Tribunal‘s direction merely requires the petitioner to Signature Not Verified W.P.(C) 5904/2023 Page 10 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 conduct a medical and functional assessment of his suitability for the subject post, which is both reasonable and procedurally fair. viii. However, no Medical Board was ever constituted to examine whether his specific condition affects his functional suitability. Thus, the return of his dossier without individualized assessment amounts to discrimination based on generalized assumptions. Therefore, the impugned order may be upheld and the instant petition be dismissed. Submissions on behalf of the intervenor/Sudhanshu Kardam

5. Mr. Rajan Sabharwal, learned counsel appeared on behalf of the intervenor, a similarly placed candidate, whose dossier was also returned by the CAG and whose Original Application is pending before the CAT (Original Application no. 2563/2021).

6. Learned counsel submitted that the intervenor is a similarly placed candidate suffering from ‗specific learning disorder‘. He was also declared successful and recommended for appointment to the post of Assistant Audit Officer.

7. Learned counsel has further made submissions which are similar to what respondent no. 1 has submitted and has also placed strong reliance on the Notification dated 04.01.2021. It is argued that the petitioner has erroneously and conveniently presumed that if exemption is sought only for a particular disability and not for the entire five categories of disabilities, then the consultation with Chief/State Commissioner was not Signature Not Verified W.P.(C) 5904/2023 Page 11 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 necessary and the Department was empowered to make a conscious decision as to persons with what disabilities are suitable for the work. The said interpretation is also contrary to the OM dated 15.01.2018 which specifically provides that reference and notification are required to be made whether exemption is sought fully or partly, and not only in cases of full exemption from all five categories mentioned in Section 34 of the RPwD Act.

8. Heard the learned counsel appearing on behalf of the respective parties and perused the material available on record. Analysis and findings

9. Before delving into the adjudication of the matter at hand, we find it prudent to discuss the findings of the impugned order since the same is under challenge herein. For the sake of convenience, the relevant portion of the same is reproduced as under: just extended “..4.1 SSC initially did not mention vacancies reserved for applicant‟s category “Other PwD”. The SSC in its official advertisement dated 05.05.2018 the right of reservation to these newly recognized disability categories but did not mention specific posts reserved for these new categories. The advertisement provided that vacancies will be notified in due course and the candidates belonging to new categories were asked to apply under “Other PwD category”. The post of Auditor remained recognized for other PwD which includes Mentally Ill in both the lists of vacancies notified in due course. The first ever list of vacancies containing tentative vacancies were notified by the SSC on 27.12.2019 in which 2 seats for the post of Auditor in CAG stood earmarked against this “Other PwD” category and 4 seats for another senior post Assistant Audit Officer in CAG a Group „B‟ post stood earmarked for Other PwD. Thereafter, in the Final List of vacancies dated 15.03.2021, the above mentioned posts again stood earmarked for the Other PWD category. In the final Signature Not Verified W.P.(C) 5904/2023 Page 12 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 list of vacancies, the post of Auditor was coded as D33 at entry no.24. Thus, the post of Auditor remained recognized for the Other PwD category in both the list of vacancies the final being dated 15.03.2021.

4.2 Therefore, the recruitment process completed only after recommendation of the applicant on 01.04.2021 and final list with firm number of vacancies got notified on 15.03.2021 meaning the right of reservation was extended on 05.05.2018 but fructified and got fortified only on 01.04.2021 during which the notification was effective and a binding law on all departments under Central Government for the purposes of suitable posts identification for different categories of PwD.

4.3 The internal communication dated 30.09.2021 by CAG to SSC is contrary to letter and spirit of provisions of the Disability Act.

4.3 The internal communication dated 30.09.2021 by CAG to SSC is contrary to letter and spirit of provisions of the Disability Act.

4.4 This Tribunal vide record of proceedings granted interim relief to the effect that “In the facts and circumstances of the case, as an interim measure, it is ordered that the respondents shall not create any third party interest against the post, for which the applicant has been selected, till the next date of hearing.

4.7 In the present case, the applicant cannot be faulted since the Appropriate Government ie (UOI in present case) had not identified the post in respondent department till 1.4.2021(date on which merit list was upload on website and the applicant stood recommended), the applicant had filed up his preference as on 27.2.2021 based on the merits.

4.8 Post of “Auditor” in CAG not identified /earmarked for mental illness was within the realm of the SSC and CAG for which he had no knowledge or notice. Therefore, the applicant had filed his preference as per merits for which otherwise he fulfilled all other eligible criterion. Even assuming for sake of arguments, that the applicant could not have given post of Auditor in CAG due to “Mental Illness “but at the same time he ought to have been put to notice by SSC to give suitable prefernce for alternative suitable post.

7. It is noticeable character in the facts of the present case, the only medical expert member in the meeting Dr. Deshpande Signature Not Verified W.P.(C) 5904/2023 Page 13 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 recommended that Mentally Ill persons are also fit for the group B & C posts. Ironically, while all the members of the meeting were of the opinion that Mentally Ill along with other sub categories under Sec 34(1) (d) person be excluded from group B & C posts of the CAG, it is Dr. Deshpande who dissented in Point no.7 of the minutes of the meeting. Dr. Deshpande in fact, recommended that mentally ill persons be considered for the CAG. In this manner, CAG excluded all persons under sub category of Sec 34 (1)(d) from CAG group B&C posts and retained only multiple disability candidates.

8. As noticed above, the applicant is working as PO in Bank. The contention of respondent/CAG is that they have duly provided reservation as per Section 34 of the RPWD Act by providing total 4% reservation. Out of which requirement of providing 1% for the categories under clause (d) and (e) of the Section 34 has been complied with because they have provided 1% reservation to the PwDs falling under (e) clause and now even if they excuse PwDs from (d) clause it will not be a violation of law. It is contrary to law laid down by the Hon‟ble Apex Court in Ravinder Kumar Dhariwal & Anr. (supra). Section 34 clearly rules that there has to be one percent reservation for the PwDs categorized under clauses (d) and (e) and not (d) or (e) i.e. reservation has to be made available to both the categories under clauses and not either of the two. Therefore, the correct course of action would have been to provide reservation to both the categories i.e. under clause (d) and (e) jointly whoever amongst them secures merit would be allotted the post. In this case, the applicant has been recommended as per correct interpretation of law because he was also qualified in the merit list along with other candidates under Multiple disability falling under clause (e). Thus, in the correct course of action, both should have been appointed against one percent reservation.

9. It is submitted that vide order dated 01.04.2021, final result with list of recommended candidates and allotted departments, was notified by the SSC with Auditor post coded as D33.

18. In view of the above discussion, the return of dossier vide communication dated 30.09.2021 is bad in law and is hereby quashed and set aside. The OA is allowed. The applicant is also entitled to the protection of Section 20(4) of the RPwD Act. The applicant‟s suitability on medical grounds can be assessed by an Independent Medical Board set up by CAG for the post of “Auditor”. Based on such medical assessment, applicant may be offered appointment to the post of Auditor. The said exercise be carried out within a period of two months from the date of receipt of the certified copy of the judgment. Signature Not Verified W.P.(C) 5904/2023 Page 14 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45

19. In the event, applicant is found unsuitable for the post of “Auditor” by the Independent Medical Board, he shall be entitled to alternative suitable to alternative offer of appointment equivalent assignment/post in another department in consultation with Ministry of Social Justice and Empowerment and SSC while re-assigning/re-allocating the applicant to an alternative post, it become necessary that his pay, emoluments and conditions of service must be protected.

20. OA is allowed in aforesaid terms. No order as to costs..”

10. Upon perusal of the aforesaid extracts of the impugned order, it is observed that the learned Tribunal recorded that the final result of SSC CGLE 2018 was declared on 01.04.2021, where the name of respondent no. 1 herein appeared under the recommended candidates for the post of Auditor (post code D33) in the office of the CAG. However, it was noted that by communication dated 30.09.2021, the office of the CAG had returned his dossier to the SSC, stating that the post of Auditor was not found suitable for PwBD - mental illness.

11. The learned Tribunal took notice of the Notification dated

04.01.2021, which identifies various posts suitable for PwBD. The post of Auditor was explicitly included in the list in the aforesaid notification as suitable for PwBD - mental illness. The learned Tribunal referred to this statutory notification to emphasize that the denial of appointment on the ground that his disability rendered him unsuitable was prima facie inconsistent with the express inclusion of the post in the suitability list.

12. The learned Tribunal further recorded that the Data Verification Sheet generated and authenticated by the SSC during document verification specifically indicated that he was eligible for post code D33 (Auditor) and Signature Not Verified that all due verification formalities had been completed. W.P.(C) 5904/2023 Page 15 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45

13. It was observed that no individual assessment was carried out by the CAG or any Medical Board to determine whether he has specific medical condition which would substantially impair the discharge of essential functions of the post of Auditor. The learned Tribunal held that in the absence of such a personalized medical evaluation, the rejection of the candidature lacked procedural fairness and contravened the principles of natural justice.

14. In its conclusive findings, the learned Tribunal held that respondent no. 1 herein, having been validly recommended by SSC under the Other PwD category, and the post being identified as suitable for PwBD - mental illness (vide the Notification dated 04.01.2021), could not have been denied appointment without recourse to individualized assessment. It was held that blanket denial of appointment solely on the basis of internal departmental assessment and minutes of meetings, particularly when contrary to a Central Government Gazette Notification, could not be sustained. Accordingly, the OA was allowed and the following operative directions were issued: i. The petitioner herein was directed to constitute a Medical Board to assess whether respondent no. 1, considering his disability of 55% mental illness, is functionally fit to perform the duties and responsibilities attached to the post of Auditor. ii. In the event the Medical Board finds the applicant suitable, he shall be appointed to the post of Auditor. If found unsuitable for the post of Auditor, he shall be entitled to an alternative offer of appointment to alternative suitable equivalent assignment/post in Signature Not Verified W.P.(C) 5904/2023 Page 16 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 another department in consultation with Ministry of Social Justice and Empowerment and SSC while re-assigning/re-allocating the applicant to an alternative post, it becomes necessary that his pay, emoluments and conditions of service must be protected.

15. Upon meticulous examination of the pleadings, documents, and submissions advanced by learned counsel for the parties, the issue that falls for adjudication before this Court is whether the learned Tribunal was correct in quashing the communication dated 30.09.2021 and in directing the constitution of a Medical Board for the assessment of respondent no. 1‘s suitability for appointment to the post of Auditor, in light of the Notification dated 04.01.2021 issued under the RPwD Act. Advertisement dated 05.05.2018 and its binding effect-

16. It is imperative to note that the advertisement issued by the SSC on

05.05.2018 formed the foundation of the recruitment process in question. Respondent no. 1 did not challenge the advertisement at any stage.

17. A perusal of page no. 4, Column 24 of the advertisement reveals that the post of Auditor was specifically identified as suitable for PwBD falling under categories OA (One Arm), OL (One Leg), BL (Both Legs) and HH (Hearing Handicapped). There is no mention, whatsoever, of ‗mental illness‘ as an identified disability for the subject post in the said advertisement. Relevant portion of the advertisement is as under: Signature Not Verified W.P.(C) 5904/2023 Page 17 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 S No Name of Ministry/ Classification Grade Nature of Age Limit Post Department/ Pay (GP) Physical Office/ Cadre Disabilities permissible for the post 24 Auditor Offices Group “C” 2800 OA, OL, BL 18-27 years C&AG & HH 25 Auditor Offices Group “C” 2800 18-27 years CGDA 26 Auditor Other Ministry/ Group “C” 2800 18-27 years Departments

18. We are of the view that respondent no. 1 has attempted to rely upon Note (iii) at page 5 of the advertisement which provides that candidates with benchmark disabilities can apply for various posts, if eligible. However, this clause is clearly prefaced by a conditional caveat that appointment shall be subject to identification of posts suitable for such categories of disabilities and the availability of reported vacancies by the indenting departments. Relevant portion of Note III of the advertisement reads as under: “..Note-III: As the “Rights of Persons with Disabilities Act, 2016” has come into force with effect from 19.04.2017, and beside OH, HH and VH categories, new categories of disabilities such as Autism, Dwarfism, Acid Attack victims, Muscular Dystrophy, Intellectual Disability, Specific Learning Disability, Mental Illness and Multiple Disabilities, etc have been included. Therefore, the candidates with such disabilities may also apply giving detail of their disabilities in the online Application Form. However, their selection will be subject to identification of posts suitable for these categories as well as reporting of vacancies by the Indenting Signature Not Verified W.P.(C) 5904/2023 Page 18 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 Departments. Candidates suffering from various disabilities as identified vide DoP&T OM No: 36035/02/2017-Estt (Res) dated 15-01-2018 (para-2.2) may select following PwD categories in the online http://[email protected]:..” Registration/ Application Form

19. The said Note (iii) cannot be interpreted to imply that all categories of benchmark disabilities, including mental illness, are eligible for every advertised post. The clause merely facilitates applications from such candidates, subject to the constraints of identified posts and reported vacancies. Thus, no enforceable right could be claimed by the respondent under Note (iii) in the absence of identification of the post of Auditor as suitable for mental illness. It is well within the discretion of the department concerned to figure out as to what all categories of PwBD would be suitable for a particular post bearing in mind the administrative exigencies, and the nature of job, and its responsibilities. Conduct of respondent no. 1 and absence of challenge to advertisement-

20. Respondent no. 1, by his own admission, was previously employed in a nationalized bank and is thus presumed to possess a degree of prudence and rationality. It is not his case that the advertisement was ever challenged by him for failing to identify the post of Auditor as suitable for ―mental illness.‖ On the contrary, he proceeded to participate in the recruitment process with full knowledge of the specified eligibility criteria.

21. Despite being aware of the express exclusions in the advertisement, respondent no. 1 willingly participated in the recruitment process. There is no material on record to indicate that he had, at any point, challenged the non-inclusion or non-mentioning of his disability category (mental illness) Signature Not Verified W.P.(C) 5904/2023 Page 19 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 for the subject post. In light of this, the settled principle of law is attracted, namely, that a candidate who participates in a selection process without demur cannot be permitted to challenge the criteria or procedure after being unsuccessful. The Hon‘ble Supreme Court also in Manish Kumar Shahi v. State of Bihar14, observed that a candidate, after having participated in the selection process on the basis of recruitment notification, later on, in the event his name is not found in the merit list or is declared unsuccessful despite being in the merit list, cannot invoke the extraordinary writ jurisdiction to contend his entitlement in the selection, by challenging the recruitment notification, since the said candidate took part in the recruitment process being completely aware about the criteria. Relevant portion of the said judgment reads as under: “16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.”

22. The law, as stated above, is no longer res integra, that once the eligibility criteria are published and made known to all prospective applicants through a public advertisement, and a candidate voluntarily participates in the recruitment process with full knowledge of such terms, he is estopped from questioning the same at a later stage, especially after 14 (2010) 12 SCC 576 W.P.(C) 5904/2023 Page 20 of 37 Signature Not Verified Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 having been declared successful on a post which in the present case, ex facie, did not cater to respondent no. 1‘s disability category. This settled principle of law has been consistently upheld in a catena of decisions of the Hon‘ble Supreme Court as well as this Court.

23. In the present case, no material has been placed on record to show that the respondent made any contemporaneous representation or protest challenging the absence of reservation for persons with mental illness in the said advertisement. Having participated in the process unconditionally, he cannot now claim a right of appointment by relying on a subsequent notification dated 04.01.2021, which did not govern the recruitment cycle initiated in the year 2018. The absence of any challenge to the advertisement reinforces the legitimacy of the petitioner‘s stand, as the entire selection process was conducted within the four corners of the published norms, including post identification in terms of Section 33 of the RPwD Act.

24. Accordingly, respondent no. 1‘s subsequent attempt to invoke the Notification dated 04.01.2021 and contend entitlement under a disability category that was never identified for the subject post, not only defeats the sanctity of the recruitment advertisement but also runs afoul of the doctrine of legitimate expectation and settled jurisprudence on estoppel by acquiescence. The non-challenge to the advertisement, therefore, operates as a bar against the respondent‘s retrospective claim, and the petitioner‘s action in returning the dossier was fully consistent with the administrative and legal framework applicable at the relevant time. Signature Not Verified W.P.(C) 5904/2023 Page 21 of 37 Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 Retrospective application of notification dated 04.01.2021-

25. The legal proposition with regard to the retrospective applicability of a rule/notification/legislation is well settled, as per which subordinate legislation, such as notifications, cannot have retrospective effect unless explicitly authorized by the parent statute.

26. In Union of India v. G.S. Chatha Rice Mills15, the Hon‘ble Supreme Court elaborated on the legal position concerning the retrospective applicability of subordinate legislation, specifically notifications issued under delegated legislative powers. It was held that a notification issued under a delegated power — such as under the Customs Act, 1962 — cannot have retrospective operation unless the parent statute expressly authorizes such retrospective effect. In the absence of such statutory backing, any subordinate legislation, including a customs notification enhancing duty, becomes effective only from the date and time of its actual publication in the Official Gazette. The Court further emphasized that legal certainty and fairness are essential principles of the rule of law. It reiterated that individuals are entitled to arrange their affairs in accordance with the law as it exists at the time of their action. Any retrospective change, particularly in a fiscal or regulatory regime, can unfairly prejudice those who acted in accordance with the prevailing legal position. The Hon‘ble Supreme Court further clarified that a notification that is intended to affect substantive rights cannot override transactions that have already been completed under the earlier regime, unless retrospective application is clearly stipulated and valid under the enabling statute. 15(2021) 2 SCC 209 W.P.(C) 5904/2023 Page 22 of 37 Signature Not Verified Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45

27. Thus, the above said judgment reaffirms the settled principle that delegated legislation, including government notifications, cannot operate retrospectively unless the legislature has conferred such a power in unambiguous terms. The relevant portion of G.S. Chatha Rice Mills (Supra) are as under: India [New Bank of “103. The above decision was distinguished in New Bank of India Employees' Union v. Union of India Employees' Union v. Union of India,16 (“New Bank of India”) where the Court held that a scheme framed under Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 stands on a distinct footing of being a legislative and not an administrative function. The Court held that the question was not of much relevance in view of its conclusions on the main issues presented for decision. Yet, it considered the question and laid emphasis on the authority entrusted to Parliament to consider, within 30 days, to agree/modify/arrive at any decision with regards to the scheme, only thereafter was the scheme was to have effect. These requirements, qualitatively distinguished from a requirement of mere “laying” under Section 45 of the Banking Regulation Act, 1949, were pivotal in the court's view that a scheme under the 1980 Act has a legislative character. Mr Nataraj sought to emphasise a similar argument, by placing reliance on the provisions of sub- sections (3) and (4) of Section 7 which are made applicable by reason of sub-section (2) of Section 8-A. However, in the absence of a sine qua non for parliamentary sanction before the notification is enforceable, the decision of New Bank of India [New Bank of India Employees' Union v. Union of India (Supra), provides little anchor. For the purpose of the present decision, the point which needs emphasis is that in empowering the Central Government to exercise power under Section 8-A of the Customs Tariff Act, Parliament has not either expressly or by necessary implication indicated that a notification once issued will have force and effect anterior in time. The provisions of sub-sections (3) and (4) of Section 7 of the Customs Tariff Act bring to bear legislative oversight and supervision over the power which is entrusted to the Central Government under Section 8-A. That however does not lead to the inference that a notification under Section 8-A has retrospective effect. Plainly, a notification enhancing the rate of duty under Section 8-A has prospective effect.

104. A rule framed by the delegate of the legislature does not have 16 (1996) 8 SCC 407 W.P.(C) 5904/2023 Page 23 of 37 Signature Not Verified Signed By:AAKANSHA SHARMA Signing Date:29.05.2025 18:27:45 retrospective effect unless the statutory provision under which it is framed allows retrospectivity either by the use of specific words to that effect or by necessary implication. In Hukam Chand v. Union of India [Hukam Chand v. Union of India17 , a three-Judge Bench of this Court held that : (SCC pp. 604-05, para 8) “8. … The extent and amplitude of the rule-making power would depend upon and be governed by the language of the section. If a particular rule were not to fall within the ambit and purview of the section, the Central Government in such an event would have no power to make that rule. Likewise, if there was nothing in the language of Section 40 to empower the Central Government either expressly or by necessary implication, to make a rule retroactively, the Central Government would be acting in excess of its power if it gave retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law- making body is bound by the terms of its delegated or derived authority and that court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled.…” (emphasis supplied)

105. The distinction between the plenary power which is entrusted to Parliament and the State Legislatures to enact legislation with both prospective and retrospective effect, and the power entrusted to a delegate of the legislature to frame subordinate legislation has been maintained in a consistent line of precedent of this Court.

105.1. In Regional Transport Officer v. Associated Transport Madras (P) Ltd. [Regional Transport Officer v. Associated Transport Madras (P) Ltd.18 , V.R. Krishna Iyer, J. speaking for a two-Judge Bench of this Court with his characteristic eloquence observed : (SCC p. 599, para 4) “4. The legislature has no doubt a plenary power in the matter of enactment of statutes and can itself make