Low Vision Candidates Not Eligible For Assistant Agriculture Engineer Post If Not Identified Under PwD Notification : Orissa HC

Background Facts

An advertisement for recruitment to the post of Assistant Agriculture Engineer (Group-B) was issued by the Odisha Public Service Commission (OPSC) vide Advertisement No.02 of 2019-20. It was issued pursuant to the requisition from the Agriculture & Farmers Empowerment Department, Government of Odisha. Five posts were reserved for Persons with Disabilities (PwD) out of the total vacancies. The respondent applied under the PwD category. He was a person with low vision (40% disability). Therefore, he was allowed to appear in the written examination. He was not called for the viva voce. Later he was permitted to appear in the interview by an order of the Court.

However, OPSC did not declare his result despite his participation on the ground that candidates with low vision were not eligible for this post as per the Government Notification dated 03.12.2013. The Notification identified specific disabilities for Group-B posts like Assistant Agriculture Engineer (such as one leg affected, one arm affected, partially deaf, both legs affected but not arms). Aggrieved, the respondent filed a petition. The respondent contended that in 2014-15 recruitment, low vision candidates were considered eligible. Further two PwD posts were still vacant, therefore, he should be selected. The Single Judge accepted this contention and directed OPSC to declare the respondent as selected under PwD category.

Aggrieved by the same, OPSC filed an intra-court appeal challenging the judgment of the Single Judge dated 01.05.2023.

On the other hand, it was submitted by the appellant-OPSC that the advertisement specified that only candidates with disabilities of one leg affected and partially deaf were suitable for the post of Assistant Agriculture Engineer. Persons with low vision were not eligible under the PwD category. It was further submitted that the Government Notification dated 03.12.2013, issued after expert consultation under the PwD Act, identified the post as suitable only for OL, OA, HI and BL (MNR) categories, and not for blindness or low vision.

On the other hand it was submitted by the respondent that the advertisement did not bar persons with low vision from applying. In the 2014-15 recruitment, candidates with low vision were considered eligible under the PwD category. It was further submitted that five vacancies were earmarked for PwD candidates, but only three candidates were appointed, leaving two posts vacant. The petitioner stated that he had secured 83.506 marks, which was immediately below the last selected PwD candidate who had obtained 91.476 marks. It was also argued that paragraphs 9 and 11 of the Government Notification dated 03.12.2013 allow appointment of PwD candidates to identified posts if the physical requirements are satisfied, even if the posts are not expressly reserved for a particular disability.

Findings of the Court

It was observed by the Court that the Sections 32 and 33 of the PwD Act, 1995 require that the Government must identify posts suitable for different categories of disabilities, and only those identified posts are to be reserved. It was further observed that the notification dated 03.12.2013 was issued after detailed deliberations by an expert committee. It included only specific disabilities for the post of Assistant Agriculture Engineer, like one leg affected (OL), one arm affected (OA), partially deaf (HI), and both legs affected but not arms (BL-MNR). The disability of blindness or low vision was not included.

It was reiterated by the court that a candidate cannot claim appointment to a post not identified for their disability category, even if they have participated in the selection process. The judgment of Ajay Kumar Pandey vs. State of U.P. was relied upon wherein it was held by the court that reservation under Section 33 of the Disabilities Act, 1995 is not dependent on the identification of posts under Section 32. It was further held that identification is only relevant for the purpose of making appointments, whereas the obligation to reserve 3% posts under Section 33 exists independently.

It was observed by the Court that under the notification, the respondent's disability category was not included in the identified posts for Group-B employment under the State Government. The blindness up to 40% was not covered, therefore, respondent could not claim eligibility for the post of Assistant Agriculture Engineer. It was further held that court cannot act as an appellate authority over the expert committee constituted under Sections 32 and 33 of the PWD Act.

It was held by the Court that if suitable PwD candidates are unavailable, reserved posts may remain vacant. Such vacancies cannot be claimed by a PwD candidate whose disability category is not included in the identified posts under the notification. It was further held that if the State Government reserves certain posts for specific categories of PwD and excludes others on the recommendation of the expert committee then it does not violate constitutional principles, because each category of PwD is given opportunities in posts identified for them.

It was held by the Court that the notification issued under Sections 32 and 33 of the PWD Act, 1995 did not include visual impairment for the post of Assistant Agriculture Engineer, therefore, respondent was not eligible for such appointment. It was further held that when the disability category is not specified, visual impairment cannot confer eligibility.

With the aforesaid observations, the writ appeal was allowed, the judgment of the Single Judge dated 01.05.2023 was set aside.

Case Name : Odisha Public Service Commission vs Biswajit Panda

Case No. : WA No.1289 of 2023

Counsel for the Appellant : Tarun Patnaik, Advocate

Counsel for the Respondents : S.K. Pradhan, Advocate