Priyank Prasad Gairola vs St at e of Ut t arakhand and Ot hers

Judgment

( p e r H o n ’ b l e Ju s t i ce Sr i M a n o j K u m a r Ti w a r i ) Pet it ioner is a phy sically disabled person. As per t he Disabilit y Cert ificat e, he has disabilit y t o t he ext ent of 45% , as he is having only one leg. Pet it ioner applied for t he post of Assist ant Engineer in a select ion held by Ut t arakhand Public Service Com m ission, and he has been declared successful also against t he vacancy reser ved for per sons wit h disabilit y.

2. The problem w hich is being faced by pet it ioner is t hat t he vacancy in quest ion, which reser ved phy sically disabled per sons, has been earm arked for a candidat e w ho is part ially deaf, w hile pet it ioner ’s disabilit y is of differ ent kind, t her efor e, pet it ioner ’s claim appoint m ent is not being consider ed by t he Ut t arakhand Public Service Com m ission.

3. By m eans of t his Writ Pet it ion, pet it ioner has sought t he following r eliefs: - “ ( i) I ssue a w rit , order or dir ect ion in t he nat ure of Mandam us, com m anding t he Respondent s t o int erchange t he r eser ved post of PH- PD cat egor y for Assist ant Engineer ( Civil) , I rrigat ion Depart m ent , by perm it t ing it s filling from am ong ot her benchm ark disabilit y sub- cat egories, including OL ( One Leg) , in st rict adher ence t o Sect ion 34 ( 2) of t he Right s of Per sons wit h Disabilit ies Act , 2016, Rule 11 of t he Rules, 2017, and t he Governm ent Order dat ed 14.10.2022; ( ii) I ssue a writ , order or dir ect ion in t he nat ure of Mandam us, 1 com m anding/ direct ing t he Respondent s t o consider t he candidat ur e of t he pet it ioner, being an OBC- OL candidat e, for appoint m ent against t he said PH- PD post by applying t he principle of horizont al r eserv at ion as clarified in t he Hon’ble Supr em e Court ’s j udgm ent in I ndra Sawhney v. Union of I ndia, and t o grant all consequent ial benefit s t heret o.”

Mr. Pankaj Miglani, learned counsel appearing for t he Ut t arakhand Public Service Com m ission fairly subm it s t hat Sect ion 34 ( 2) of t he Right s of Persons wit h Disabilit ies Act , 2016 alt hough provides for t he int erchange of vacancies am ongst physically disabled persons, however, t he decision in t his regard is t o be t aken by t he St at e Governm ent and Public Service Com m ission, as select ing body, has no aut horit y. He furt her subm it s t hat t he Com m ission has t o go by t he requisit ion and breakup of vacancies is also given in t he requisit ion.

5. Sect ion 34 ( 2) of t he Right s of Persons wit h Disabilit ies Act , 2016 is reproduced below: - “ ( 2) Wher e in any r ecr uit m ent year any vacancy cannot be filled up due t o non- availabilit y of a suit able per son wit h benchm ark disabilit y or for any ot her sufficient r easons, such vacancy shall be car ried for ward in t he succeeding recruit m ent year and if in t he succeeding recruit m ent year also suit able person wit h benchm ark disabilit y is not available, it m ay first be filled by int erchange am ong t he cat egories and only when t her e is no person wit h disabilit y available for t he post in t hat year, t he em ploy er shall fill up t he vacancy by appoint m ent of a per son, ot her t han a per son wit h disabilit y: Provided t hat if t he nat ure of vacancies in an est ablishm ent is such t hat a given cat egor y of per son cannot be em ployed, t he vacancies m ay be int er changed am ong t he five cat egories wit h t he prior approval of t he appr opriat e Gov ernm ent .”

6. Mr. B.S. Parihar, learned St anding Counsel for t he St at e subm it s t hat alt hough t he pet it ioner has m ade a represent at ion, it was m ade t o a wrong aut horit y, nam ely, Ut t arak hand Public Service Com m ission, and if pet it ioner want s t o m ake a fresh represent at ion, he m ay be perm it t ed t o do so.

7. We, accordingly dispose of t he Writ Pet it ion, by perm it t ing t he pet it ioner t o approach t he Secret ary Depart m ent of Personnel and Training, Governm ent of Ut t arakhand by m aking a represent at ion. I f pet it ioner m akes represent at ion wit hin t wo weeks from t oday, claim ing int erchange of vacancies reserved for physically disabled persons, t hen t he Secret ary 2 concerned shall t ake decision on his represent at ion wit hin six weeks from t he dat e of receipt of such represent at ion. _______________________________ M A N OJ K UM A R TI W A RI , J. __________________________ A SH I SH N A I TH A N I , J. Dt : 20 t h May, 2025 Shiksha SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b 5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D 7FF0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA 3