Orissa High Court: Low Vision Disability Not Eligible for Assistant Agriculture Engineer Posts | OPSC Bound by 2013 Notification Under Sections 32–33 PwD Act
Isabella Mariam
The High Court of Orissa Division Bench of Justice Manash Ranjan Pathak and Justice Mruganka Sekhar Sahoo delivered its judgment in an appeal arising out of a writ petition concerning recruitment to the post of Assistant Agriculture Engineer. The Division Bench held that the respondent, who suffered from low vision, was not eligible for appointment against the advertised posts. The Court allowed the appeal filed by the Odisha Public Service Commission and set aside the judgment of the learned Single Judge, dismissing the writ petition.
The Court stated that the notification dated 03.12.2013 issued by the Government of Odisha under the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 had statutory force and was binding on the recruitment process. Accordingly, the Court concluded that since the respondent’s category of disability was not identified for the advertised post, he could not claim appointment even though some posts remained vacant.
The matter arose from a recruitment notification dated 16.07.2019, issued by the Odisha Public Service Commission for the post of Assistant Agriculture Engineer under the Agriculture & Farmers Empowerment Department, Government of Odisha. The advertisement reserved five posts for persons with disabilities. The respondent applied under the Persons with Disabilities category and was permitted to sit for the written examination. Although allowed to participate in the viva voce pursuant to a Court’s interim order, his result was withheld.
The writ petition sought a direction for the respondent’s appointment. The learned Single Judge directed that the respondent be declared selected under the PwD category, noting that his disability—low vision—had been considered eligible in earlier recruitment cycles. It was observed that the respondent secured 83.506 marks, just below the last selected PwD candidate who secured 91.476 marks. Given that two vacancies remained unfilled, the Single Judge directed that the respondent be appointed.
The Odisha Public Service Commission appealed against this order. The appellant’s contention was that the advertisement explicitly restricted eligibility to persons with disabilities in categories of one leg affected, one arm affected, partly deaf, or both legs affected but not arms. The appellant referred to the Government Notification dated 03.12.2013, issued pursuant to Sections 32 and 33 of the Persons With Disabilities Act, 1995. This notification identified posts suitable for various categories of disability, and low vision was not included for the post of Assistant Agriculture Engineer.
The appellant submitted that the learned Single Judge erred in disregarding the notification, which was prepared by a committee comprising experts and stakeholders. The appellant relied on precedents including Ajay Kumar Pandey v. State of U.P. (2023) 16 SCC 82, where the Supreme Court held that judicial review cannot interfere with expert identification of posts under Section 32 unless arbitrary or irrational. The appellant argued that the Court’s direction in effect reclassified eligibility without authority.
The respondent opposed the appeal, contending that the notification’s column on physical requirements included abilities such as sitting, standing, walking, bending, manipulation with fingers, seeing, and reading and writing, which he could meet. The respondent relied on Paragraphs 9 and 11 of the 2013 notification, which allowed appointments to posts not expressly identified if the physical requirements were satisfied, and also provided for a model roster giving preference to PwD categories, including blindness and low vision.
The respondent argued that since vacancies remained unfilled and he was next in merit, his appointment should follow. He further contended that earlier recruitment cycles considered low vision candidates eligible for the same post.
The Division Bench noted that the question for determination was whether the High Court in exercise of judicial review could direct the Commission to declare the respondent selected under the PwD category, given that his category of disability was not listed in the notification.
The Division Bench recorded: “the short point that falls for determination in this appeal is: whether by exercising the power of judicial review this Court has the power to issue direction to the Odisha Public Service Commission to declare the respondent-writ petitioner to be a selected candidate under the PwD category, after giving a finding that the respondent-petitioner belongs to 1st sub-category i.e. person suffering from blindness or low vision with a further direction to intimate the requisitioning authority i.e. the Government in the Department of Agriculture & Farmers Empowerment to do the needful in accordance with law.”
The Court observed: “It is not disputed that the petitioner-respondent suffers from blindness to the extent 40% that comes within the definition/description of PwD category as he has 40% disability.” The Single Judge had directed his selection noting that he secured 83.506 marks, just below the cut-off of 91.476 marks.
The Court noted that the learned Single Judge had raised the issue: “the category of physically handicapped was further qualified to include only certain categories of physical disabilities leaving out disabilities relating to low vision, which was earlier considered in 2014-15.” However, this question remained unanswered in the judgment under appeal.
The Division Bench stated the statutory scheme: “Chapter VI of the PwD Act, 1995 empowers the appropriate Government to identify posts, in the establishments, which can be reserved for the persons with disability. Section 33 mandates the appropriate Government shall appoint in every establishment person with disability in the posts identified for each disability.” It further recorded: “reservation of posts under section 33 is not for all categories of posts irrespective of nature of work to be carried out.”
Citing Union of India v. Ravi Prakash Gupta (2010) 7 SCC 626, the Court observed: “reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein.” However, appointments could only be made in respect of identified posts.
The Court further observed: “the appropriate Government has exercised the power and also in the manner that is prescribed and mandated under sections 32 & 33 of the Act, 1995. The answer has to be clearly in the affirmative.” The notification dated 03.12.2013 had been issued after a detailed process involving experts and stakeholders.
It recorded: “the kind of disability that is suffered by the respondent entitles him for employment under the State, in specified employment as has been enumerated in the detailed notification as reflected in Annexure-2. If the respondent wishes to get employed in Group-B posts under the State Government, the identified posts do not include the category of disability, suffered by respondent.”
The Court held: “this Court cannot act as an appellate authority of the committee as notified under sections 32 and 33 of the Act, 1955 to apply any subjective/objective scrutiny. Further the Court has to show due deference to the conclusions of the committee as has been notified which enables the respondent to get engaged in a particular category of posts but not as Assistant Agriculture Engineer.”
The Division Bench concluded: “the respondent is not eligible for appointment against the post of Assistant Agriculture Engineer in terms of the advertisement. The Government of Odisha notification dated 03.12.2013 being statutory, in terms of sections 32 and 33 of the Act, 1955 has to be read along with the advertisement. The respondent cannot claim appointment against any post reserved for disabled candidates only for the reason that he is visually impaired when such kind of disability is not indicated for reservation in appointment to posts for Assistant Agriculture Engineer.”
The Division Bench directed: “Accordingly, the writ appeal is allowed. The judgment dated 01.05.2023 passed by the learned Single Judge in W.P. (C) No.10399 of 2020 is directed to be set aside. The W.P. (C) No.10399 of 2020 has to be and is directed to be dismissed. Costs made easy.”
Advocates Representing the Parties:
For the Appellant: Mr. Tarun Patnaik, Advocate
For the Respondent: Mr. S.K. Pradhan, Advocate
Case Title: Odisha Public Service Commission v. Biswajit Panda
Case Number: WA No.1289 of 2023
Bench: Justice Manash Ranjan Pathak, Justice Mruganka Sekhar Sahoo
