Rohit Aggarwal & Ors. vs State Of Punjab & Ors.

Sandeep Moudgil, J

The petitioner has invoked the extraordinary writ jurisdiction of this Court under Articles 226/227 of the Constitution of India seeking issuance of appropriate directions for quashing the selection and appointments of respondent Nos. 3 to 5 to the posts of Excise and Taxation Officer and for directing the respondents to consider and appoint the petitioner against the post reserved for the visually handicapped category, along with all consequential benefits.

The Department of Excise and Taxation, Government of Punjab, issued an advertisement dated 12.10.2000 inviting applications for one backlog vacancy of Excise and Taxation Officer (Class-I) reserved for the visually handicapped category. Subsequently, by way of a corrigendum dated 18.01.2001, the number of vacancies was increased from one to three, earmarking one post each for blind/low vision, hearing impairment and locomotor disability/cerebral palsy categories. The petitioner, claiming to be a bona fide resident of Punjab and belonging to the visually handicapped category, submitted his application in response to the advertisement. According to him, he possessed excellent academic credentials, including a Bachelor's Degree in Commerce, Master's Degree in Business Administration, I.C.W.A. qualification and was also pursuing LL.B. at the relevant time. He asserts that he fulfilled all the prescribed eligibility conditions and enclosed the requisite certificates along with his application.

The petitioner was found eligible and was called for interview vide communication dated 30.03.2001. He accordingly appeared before the Departmental Selection Committee on 20.04.2001. Thereafter, instead of declaring the result of the selection process, the respondents appointed respondent Nos. 3 to 5 as Excise and Taxation Officers. Aggrieved thereby, the petitioner instituted the present writ petition alleging that none of the selected candidates belonged to the visually handicapped category and that the post reserved for such category could not legally be diverted to candidates belonging to other disability categories.

Learned counsel for the petitioner contends that the petitioner fulfilled all the eligibility criteria prescribed under the advertisement and possessed superior academic qualifications, yet he was illegally denied appointment despite being the only eligible candidate from the visually handicapped category. It is argued that the respondents acted arbitrarily in appointing respondent Nos. 3 to 5, who admittedly belonged to disability categories other than the visually handicapped category, thereby defeating the very object of reservation.

It is further submitted that the reservation earmarked for the visually handicapped category could not have been interchanged in the absence of any lawful justification, particularly when the petitioner was available and eligible for consideration. According to learned counsel, the respondents neither disclosed any valid reason for holding the petitioner unsuitable nor conducted the selection process in a fair and transparent manner. The appointments made in favour of respondent Nos. 3 to 5 are alleged to be arbitrary, mala fide and violative of Articles 14 and 16 of the Constitution of India.

Learned counsel also argues that the plea subsequently taken by the respondents regarding the petitioner being unsuitable for the duties attached to the post is an afterthought, unsupported by any objective assessment or statutory provision. It is, therefore, prayed that the impugned appointments be set aside and the petitioner be granted appointment against the vacancy reserved for the visually handicapped category with all consequential benefits.

Per contra, learned State counsel, duly assisted by learned counsel appearing for respondent Nos. 3 to 5, opposes the writ petition and submits that the petitioner has no enforceable right to challenge the appointments of respondent Nos. 3 to 5, who were appointed strictly in accordance with the Government policy and the provisions of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 on the principle of interchangeability of reservation.

It is contended that the petitioner was duly considered by the Departmental Selection Committee but was found unsuitable for appointment as an Excise and Taxation Officer. Learned counsel submits that the duties attached to the post are arduous in nature and require safeguarding State revenue, scrutiny of account books, inspection of business premises and vehicles to detect tax evasion, prevention of smuggling and illicit distillation, and performance of duties at odd hours and under difficult field conditions. It is argued that these functions cannot effectively be discharged by a visually handicapped person and, therefore, the Selection Committee rightly concluded that candidates belonging to the visually handicapped category were unsuitable for the said post.

Learned counsel further submits that the advertisement itself stipulated that if no suitable candidate from the visually handicapped category was found eligible and suitable, the vacancy could be filled from other categories of persons with disabilities by applying the principle of interchangeability. Such interchangeability, it is argued, is expressly permissible under Section 33 of the Act of 1995 as well as the Government policy dated 02.05.1997, particularly where the nature of duties is such that a particular category of disabled persons cannot be employed. It is submitted that the competent authority, in public interest and with the approval of the nodal Department, validly interchanged the vacancy and made appointments accordingly.

Arguments were heard and the judgement was kept reserved on 28.01.2026.

The short question that arises for consideration is whether the respondents were justified in invoking the principle of interchangeability to fill the vacancy reserved for the visually handicapped category.

At the outset, the objection raised by respondent Nos.3 to 5 regarding the petitioner’s eligibility deserves only a brief notice. The petitioner admittedly possessed 45% visual disability and was duly considered by the recruiting authority against the vacancy reserved for visually handicapped candidates. His application was accepted, he was found eligible to participate in the selection process and was called for interview. It is also not disputed that the petitioner was already serving in the Excise and Taxation Department and had participated in the selection process for appointment to the post of Excise and Taxation Officer. The official respondents have never rejected his candidature on the ground of ineligibility; rather, their consistent stand is that the petitioner was found unsuitable for appointment. Consequently, the plea raised by respondent Nos.3 to 5 questioning the petitioner's eligibility does not merit acceptance.

The principal defence of the respondents is that having regard to the arduous nature of duties attached to the post of Excise and Taxation Officer, the petitioner was found unsuitable and, therefore, the vacancy reserved for the visually handicapped category was rightly filled by resorting to the principle of interchangeability under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 read with paragraph 6 of the Government policy dated 02.05.1997.

Relevant provisions are as under:

Government policy contained in letter no.10/26/95-5-S.S./1252 dated 2.5.1997 which is reproduced as under:-

This Court notes that Section 33 of the Act of 1995 mandates reservation of 1 per cent vacancies each for persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy in posts identified for each disability. The proviso thereto authorises the appropriate Government to exempt any establishment from the operation of the said provision only by issuing a notification having regard to the nature of work carried on therein. The Supreme Court in Government of India v. Ravi Prakash Gupta, (2010) 7 SCC 626 has unequivocally held that reservation under Section 33 of the Act of 1995 is mandatory and cannot be diluted by executive action or administrative convenience. The provisions of the 1995 Act, being a beneficial legislation, must receive a purposive interpretation so as to advance the object of providing meaningful reservation to persons with disabilities. Relevant extract of Ravi Prakash Gupta (supra) is as under:

Moreover, the paragraph 6 of the Government policy dated 02.05.1997 merely permits interchangeability where candidates belonging to a particular category are not available or where the nature of vacancies is such that a particular category of disabled persons cannot be employed. Being an executive instruction, the said policy cannot override the statutory mandate contained in Section 33 of the Act of 1995 and has necessarily to be read harmoniously with the Act.

Tested on the aforesaid principles, the action of the respondents cannot be sustained. Firstly, the petitioner was admittedly available and had participated in the selection process against the vacancy earmarked for the visually handicapped category. Therefore, the contingency contemplated under the policy regarding non-availability of a suitable candidate from the reserved category never arose. Secondly, although the respondents have sought to justify the invocation of interchangeability on the premise that the duties attached to the post of Excise and Taxation Officer are of such nature that a visually impaired person could not effectively discharge them, no notification issued under the proviso to Section 33 of the Act of 1995 exempting either the Excise and Taxation Department or the post of Excise and Taxation Officer from reservation in favour of persons suffering from blindness or low vision has been placed on record. In the absence of such statutory exemption, neither the Department nor the Departmental Selection Committee was competent to divert the vacancy reserved for one category of disability to another by resorting to an administrative decision.

The opinion of the Selection Committee regarding the suitability of visually impaired candidates could never substitute the statutory requirement of exemption by notification. If the appropriate Government genuinely considered the post unsuitable for persons suffering from blindness or low vision, the Act of 1995 itself prescribed the manner in which such exemption was to be granted. Admittedly, no such exercise was ever undertaken. The action of the respondents, therefore, amounts to bypassing the legislative mandate by invoking an executive policy dehors the statutory framework.

There is yet another circumstance which completely demolishes the respondents’ defence. During the pendency of the present writ petition, the petitioner continued in service in the Excise and Taxation Department and has since been promoted from the post of Excise and Taxation Inspector to the very post of Excise and Taxation Officer. The petitioner’s promotion to the post of Excise and Taxation Officer unmistakably demonstrates that the respondents themselves ultimately found him competent to discharge the duties attached to the said post. The very foundation of the respondents’ defence, namely that a visually impaired person could not perform the duties of an Excise and Taxation Officer, thus stands completely eroded by their own subsequent conduct. Having promoted the petitioner to the same post, the respondents cannot now be permitted to justify the denial of appointment in the year 2001 on the contrary premise that he was unsuitable solely because of his visual disability.

Viewed from any angle, the invocation of the principle of interchangeability was wholly contrary to Section 33 of the Act of 1995 as well as paragraph 6 of the Government policy dated 02.05.1997. The statutory conditions precedent for resorting to interchangeability were never satisfied. The respondents, in effect, nullified the reservation specifically earmarked for the visually handicapped category without there being any statutory notification authorising such departure. Such action is contrary to the mandate of law declared by the Supreme Court and cannot be sustained. Hence, the action of the respondents in filling the vacancy reserved for the visually handicapped category by appointing candidates belonging to other disability categories by resorting to the principle of interchangeability is declared illegal and is hereby quashed.

It has been brought on record that the selection of respondent No.5-Kulwinder Kaur had been stayed and the post against which she was appointed has remained vacant. It is also not in dispute that the petitioner is still in service and has not yet attained the age of superannuation. In these peculiar facts and circumstances, the respondents are directed to appoint the petitioner against the vacancy pertaining to respondent No.5-Kulwinder Kaur, with effect from the date of selection under the advertisement in question, and to grant him all consequential service benefits, including fixation of seniority, continuity of service and notional increments. The petitioner shall also be entitled to all consequential monetary benefits in accordance with law. The aforesaid exercise shall be completed within a period of eight weeks from the date of receipt of a certified copy of this judgment.

Accordingly, the writ petition stands allowed.

Pending application(s), if any shall be disposed off, accordingly.