# UNION OF INDIA & ORS v. M. SELVAKUMAR & ANR

- **Citation:** [2017] 4 S.C.R. 137
- **Court:** Supreme Court of India
- **Decided:** 2017-01-24
- **Case number:** Civil Appeal No. 858 of2017
- **Bench:** RANJAN GOGOi, Asiiok Biiusiian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-ors-v-m-selvakumar-anr-31953
- **Pages:** 26

## Headnote

Constitution of India:
Arts. 14 and 16 - Civil services examination - Increase in
number of attempts from 4 to 7 for Physically Handicapped
candidates of General Category ..:_No further increase in the number
of attempts from 7 for the Physically Handicapped candidates of
OBC category - Whether violative of Art. 14 - Held: Art. 16 provides
for two types of reservation i.e. vertical/social reservation [as
provided in Art. 16 (4))] and horizontal reservation [as provided in
Art. 16 (J)] - Reservation of Physically Handicapped is a kind of
horizontal reservation - Reserved categ01y candidates belonging
to OBC are separately entitled for the benefit which flow from
vertical reservation - Horizontal reservation being different from
vertical reservation, no discrimination can be found when Physically
Handicapped candidates of both the categories get equal chances
(i.e. 7) to appear in the examination - A Physically Handicapped,
be it from General Catego1y or OBC, suffering from similar disability,
has to be treated alike in extending the relaxation and concession -
Moreove1; the horizontal reservation and relaxation for Physically
Handicapped Categ01y, being a matter of Government Policy, is
not in the domain of the court to interfere with the same - Civil
Services Examination Rules - r. 6 - Service Lmv - Reservation -
Judicial Review.
Judicial Review:
Judicial review of Policy decision - Scope of - Held: It is not
in the domain of the courts to embark upon an inquily as io whether
a particular policy is acceptable or whether better policy could be
evolved - Court can only interfere, if the policy is absolutely
capricious and non-informed by reasons, or totally arbitrary,
offending the basic requirement of Art. 14 of the Constitution.
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SUPREME COURT REPORTS
[2017] 4 S.C.R.
Allowing the appeals, the Court
HELD: 1. Article 16 of the Constitution provides for
equality of opportunity in matters of public employment. The State
in terms of Article 16 of th~ -Constitution provides two types of
reservations i.e. a vertical or social reservation as provided for
in Article 16 sub clause (4) and horizontal reservation which is
referable to Article 16 sub clause (1). Special reservation in favour
of physically handicapped, women etc. under Article 16(1) or 15(3)
of the Constitution are the instances of horizontal reservation.
In the Civil Services Examination, both vertical and horizontal
reservations are provided for. [Paras 23 and 25] [148-E-F; 149-EJ
Indra Sawhney and Others v. Union of India and Others
1992 Suppl. (3) SCC 217: [1992] 2 Suppl. SCR 454 -
followed.
2. A Reservation for Physically Handicapped is a kind of
horizontal reservation. Physically handicapped persons belonging
to any category i.e. General, OBC, SC/ST have to be given
opportunity to come up and compete in the mainstream, and enjoy
all the benefits and developments. The Parliament, with a view
to implement the above, enacted 'The Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation)
Act, 1995'. [Para 30] [151-G-II]
Union of India and Another v. National Federation of
the Blind & Others (2013) 10 SCC 772 : [2013] 9
SCR 1023 - relied on.
3. All Physically Handicapped Category candidates have
been granted uniform relaxation of upper age by 10 years, as per
Rule 6, in addition to relaxation in age of 5 years for SC Category
candidates and 3 years for OBC Category candidates as per Note1 of Rule 6, the benefit of age relaxation can be taken by Reserved
Category candidates cumulatively. [Para 28] [151-C-D]
4. Last sub rule of Rule 4 indicates that the 3rd proviso
contains. a theme .of relaxation pertaining to Physically
Handicapped candidates who are eligible to avail reservation
applicable to such candidates. Provided further that a physically
handicapped will get as many attempts as are available to other
non-physically handicapped candidates of his or her community.
UNION OF INDIA & ORS. v. M. SELVAK

## Text

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[2017] 4 S.C.R. 137
UNION OF INDIA & ORS.
v.
M. SELVAKUMAR & ANR.
(Civil Appeal No. 858 of2017)
A
JANUARY 24, 2017
B
[RANJAN GOGOi AND ASIIOK BIIUSIIAN, JJ.)
Constitution of India:
Arts. 14 and 16 - Civil services examination - Increase in
number of attempts from 4 to 7 for Physically Handicapped
candidates of General Category ..:_No further increase in the number
of attempts from 7 for the Physically Handicapped candidates of
OBC category - Whether violative of Art. 14 - Held: Art. 16 provides
for two types of reservation i.e. vertical/social reservation [as
provided in Art. 16 (4))] and horizontal reservation [as provided in
Art. 16 (J)] - Reservation of Physically Handicapped is a kind of
horizontal reservation - Reserved categ01y candidates belonging
to OBC are separately entitled for the benefit which flow from
vertical reservation - Horizontal reservation being different from
vertical reservation, no discrimination can be found when Physically
Handicapped candidates of both the categories get equal chances
(i.e. 7) to appear in the examination - A Physically Handicapped,
be it from General Catego1y or OBC, suffering from similar disability,
has to be treated alike in extending the relaxation and concession -
Moreove1; the horizontal reservation and relaxation for Physically
Handicapped Categ01y, being a matter of Government Policy, is
not in the domain of the court to interfere with the same - Civil
Services Examination Rules - r. 6 - Service Lmv - Reservation -
Judicial Review.
Judicial Review:
Judicial review of Policy decision - Scope of - Held: It is not
in the domain of the courts to embark upon an inquily as io whether
a particular policy is acceptable or whether better policy could be
evolved - Court can only interfere, if the policy is absolutely
capricious and non-informed by reasons, or totally arbitrary,
offending the basic requirement of Art. 14 of the Constitution.
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SUPREME COURT REPORTS
[2017] 4 S.C.R.
Allowing the appeals, the Court
HELD: 1. Article 16 of the Constitution provides for
equality of opportunity in matters of public employment. The State
in terms of Article 16 of th~ -Constitution provides two types of
reservations i.e. a vertical or social reservation as provided for
in Article 16 sub clause (4) and horizontal reservation which is
referable to Article 16 sub clause (1). Special reservation in favour
of physically handicapped, women etc. under Article 16(1) or 15(3)
of the Constitution are the instances of horizontal reservation.
In the Civil Services Examination, both vertical and horizontal
reservations are provided for. [Paras 23 and 25] [148-E-F; 149-EJ
Indra Sawhney and Others v. Union of India and Others
1992 Suppl. (3) SCC 217: [1992] 2 Suppl. SCR 454 -
followed.
2. A Reservation for Physically Handicapped is a kind of
horizontal reservation. Physically handicapped persons belonging
to any category i.e. General, OBC, SC/ST have to be given
opportunity to come up and compete in the mainstream, and enjoy
all the benefits and developments. The Parliament, with a view
to implement the above, enacted 'The Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation)
Act, 1995'. [Para 30] [151-G-II]
Union of India and Another v. National Federation of
the Blind & Others (2013) 10 SCC 772 : [2013] 9
SCR 1023 - relied on.
3. All Physically Handicapped Category candidates have
been granted uniform relaxation of upper age by 10 years, as per
Rule 6, in addition to relaxation in age of 5 years for SC Category
candidates and 3 years for OBC Category candidates as per Note1 of Rule 6, the benefit of age relaxation can be taken by Reserved
Category candidates cumulatively. [Para 28] [151-C-D]
4. Last sub rule of Rule 4 indicates that the 3rd proviso
contains. a theme .of relaxation pertaining to Physically
Handicapped candidates who are eligible to avail reservation
applicable to such candidates. Provided further that a physically
handicapped will get as many attempts as are available to other
non-physically handicapped candidates of his or her community.
UNION OF INDIA & ORS. v. M. SELVAKUMAR & ANR.
The above is subject to the condition that a physically handicapped
candidate belonging to the General category shall be eligible for
seven attempts. Thus, a Physically Handicapped candidate of
General Category has been given equal chance as compared to a
Physically Handicapped candidate belonging to OBC. No
discrimination can be read, when the number of attempts for both
the above categories has been made equal i.e. 7. [Para 29]
[151-E-F]
5. When the attempts of Physically Handicapped candidates
of OBC Category and Physically Handicapped candidates of
General Category, who appeared in the Civil Services
Examination are made equal, and a Physically Handicapped
candidate belonging to OBC Category, in addition to 10 years
relaxation in age also enjoys 3 years more age relaxation for
appearing in the examination, it cannot be said that there is
discrimination between Physically Handicapped candidates of
OBC Category and Physically Handicapped Candidates of General
Category. The reserved category candidate belonging to OBC
are separately entitled for the benefit which flow from vertical
reservation, and the horizontal reservation being different from
vertical reservation, no discrimination can be found when
Physically Handicapped candidates of both the above categories
get equal chances i.e. 7 to appear in the examination. [Para 32]
[152-E-G]
Mahesh Gupta and Others v. Yashwant Kumar Ahirwar
and Others (2007) 8 SCC 621 : [2007] 9 SCR 578 -
relied on.
6. The present case is not a case of treating unequals as
equal. It is a case of extending concessions and relaxations to
the Physically Handicapped candidates belonging to General .
Category as well as Physically Handicapped belonging to OBC
Category. Physically Handicapped Category is a Category in itself,
a person who is physically handicapped be it Physically
Handicapped of a General Category or OBC Category, suffering
from similar disability has to be treated alike in extending the
relaxation and concessions. Both being provided 7 attempts to
appear in Civil Services Examination, no discrimination or
arbitrariness can be found in the above scenario. [Para 37]
[155-E·FJ
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SUPREME COURT REPORTS
[2017] 4 S.C.R.
A
Justice Sunanda Bhandare Foundation v. Union of
India and Others (2014) SCC 383 - relied on.
B
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Indra Smvhney and Others " Union of India and Others
1992 Suppl. (3) SCC 217 : [1992] 2 Suppl. SCR 454 -
distinguished.
Anamol Bhandari (Minor) through his Father/Natural
Guardian v. Delhi Technological University 2012 (131)
DRJ 583 - referred to.
'"'7, The horizontal reservation and relaxation for Physically
Handicapped Category candidates for
Civil Services
Examination, is a matter of Governmental policy and the
Government after considering the relevant materials have
extended relaxation and con'cessions to the Physically
Handicapped candidates belonging to the Reserved Category as
well as General Category. It is not in the domain of the courts to
embark upon an inquiry as to whether a particular public policy is
wise and acceptable or whether better policy could be evolved.
The Court can only interfere if the policy framed is absolutely
capricious and non-informed by reasons, or totally arbitrary,
offending the basic requirement of the Article 14 of the
Constitution. [Para 47] [160-F-G]
NTR University of Health Sciences, Vijaywada v_ G
Babu Rajendra Prasad and Another (2003) 5 SCC
350 : [2003] 2 SCR 781 - relied on.
8. The World Bank Report of May 2007, relied by the
respondent, gives a detailed figure of different categories of
differcntly-ablcd persons, disability prevalence rate in different
countries and different other factors which docs not throw any
liglit on the issues which are before this Court. Hence, r~liancc
placed on the abovementioncd Report is misplaced. [Para 46]
[160-D]
9. The Press Note dated 22.04.2,007 sp'Clled out the
objective and policy of the _Government of India, to which it is
entitled to frame and implement. The decision to improve access
and increase the representation of the physically challenged
persons is referred to in the 1st paragraph. The 2nd Paragraph
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noticed the decision of the Government to give 7 attempts to
UNION OF INDIA & ORS. v. M. SELVAKUMAR & ANR.
141
physically challenged persons belonging to General Category, as
A
against existing 4 attempts. The Press Note thus reflects the
policy of the Government and the said policy statement in no
manner helps the respondent in the present case. [Para 50]
[161-G-H; 16~-Al
State of Kerala and Another v. N M Thomas and Others
B
(1976) 2 SCC 310 : [1976] 1 SCR 906 - referred to.
Case Law Reference
[1992] 2 Suppl. SCR 454
followed
Para 18
[1976] 1 SCR 906
referred to
Para 18
(2013] 9 SCR 1023
relied on
Para 18
(2014) sec 383
relied on
Para 18
[1992) 2 Suppl. SCR 454
distinguished
Para 24
(2013) 9 SCR 1023
referred to
Para 31
[2007] 9 SCR 578
relied on
Para 33
[2014) 4 SCR 113
referred to
Para 37
2012 (131) DRJ 583
referred to
Para 40
(2003] 2 SCR 781
relied on
Para 48
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 858 of
2017.
From the Judgment and Order dated 24.01.2012 of the High Court
of Judicature at Madras in W.P. (C) No. 18705 of 2010
WITH
C. A. Nos. 859 and 860 of 2017.
V. Mohana, Sr. Adv., Sanyat Lodha, Ms. Gunwant Dara, Mukesh
Kumar Maroria, Ms. Binu Tamta, Rajan Mati, Ms. Jyoti Me~diratta,
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Satya Mitra, Advs. for the appearing parties.
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SUPREME COURT REPORTS
[2017] 4 ?.C.R.
The Judgment of the Court was delivered by
ASHOK BHUSHAN J. f: L~ave granted.
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2. These appeals have been filed challenging the judgments of
Madras High Court and Delhi High Court allowing the writ petitions
filed by Physically Handicapped candiqates belonging to Other Back~ard
Classes ( OBC), claiming tl1at they are entitled to avail I 0 attempts instead
of7 atte.mpts in the Civil Services Examination. The challenge is on the · .
ground that since the attempts for Physieally Handicapped candidates
belonging to General Category have been increased from 4 to 7, w.e.f.
2007 Civil.Services Ex.amination, there should be 1:l proportionate increase
in attempts to b.e taken by Physically Handicapped <;:andidates belonging
to the OBC Category.
3 .. C. A. No. 858 of2017@ Special Leave Pet.ition (Civil) No.
21587of2013 had been filed against the judgment of the Divisii;m Bench
of Madras High Court dated)4. l.20i 2 in Writ Petition ( c )No. 18705 of
2010 titled M. Selvakumar versus Centml Administrative Tribunal
and Others .
. 4. C. A. No. 859 of2017@.Sp~cial L.eave Petition (Civil) No.,
18420 of 2015, U11io11 Public Service. Commissio11versus Tus/rnr.
Kesltaorao Deslimukli a11d Another and C. A: No. 860 of 2017 @
SLP ©No. 2~885 of 2015. Ut1io11 of India versus Tuslutr Keslutorao
Deslimuk/1 and Another have been filed against the sa.n~e judgment of
Delhi High Court dated 13.10.2014 in Writ Petition (c),No. 73,7? of2013 .
. 5. The Delhi High Court in its judgme11t d&t!!d 1·3 .. 1,0.2Pl4 ~as
followed the judgment of Madras High Court in M. Selvaku11u11: 's case
(Supra).
·
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CA No. 858 of 2017 @SLP (C) 21587 OF 2013
6. The Respon4ent M. Selvakumar, an orthopaedically differentlyabled person belonging to Other Backward Class (OBC) applied for
Civil Services Examination for the first time in the year 1998. The
Respondent took 7 attempts between the examination held in the year
1998 to 2!006, but failed to qualify the same.
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7. Prior to 2007 Examination, Physically Handicapped candidates
belonging to General Category were entitled to take only'4· atte'mpfr' ·
which were allowed to General Category Candidate also, whereas,
UNION OF INDIA & ORS. v. M. SELVAKUMAR & ANR.
(ASHOK BHUSHAN, J.]
Physically Handicapped candidates belonging to OBC Category were
entitled to take 7 attempts equal to OBC Category candidates also. There
was no restrictibn on the number of attempts for candidates belonging to
SC/ST Category.
8. The Central Government is authorised to frame rules for
recruitment of Civil Services Examination as per All India Services Act,
1951. By Notification dated 29 .12.2007, the Central Government amended
the Civil Services Examination Rule by adding a condition that Physically
Handicapped Candidate belonging to General Category shall be eligible
for 7 attempts.
9. The Respondent submitted his application in response to the
Notification dated 29.12.2007, appearing for his 9'h attempt. The
candidature was not accepted, as he had already exhausted his 7 attempts
at the examination. The Respondent filed an 0. A. No. 905 of 2008
before the Central Administrative Tribunal, Madras Bench, praying for
the following reliefs:
"(i) To declare that the clause 3(iv) of the notification dated
29.12.2007 in respect of the civil service preliminary
examination, 2008 published in the employment news
29.12.2007-04.01.2008 edition as illegal in so far as not
giving three more additional attempts to the physically
handicapped in the other backward class apart from being
discriminatory, violation of article 14 and in violation of
the basic frame work of the PWD Act, 1995.
(ii) Consequently direct the 2"'1 respondent to extend three
more attempts to the applicant for the .Civil services
preliminary examination.
(iii) Pass such other orders or direction as this Hon 'ble
Tribunal may deem fit in' the circumstances of the case
and to award costs and render justice. "
. This application was contested by the Union oflndia.
10. The Tribunal vide its judgment and order dated 17.03.2010,
refused to condone the delay of 883 days in filing the application and
consequently dismissed the same. The Respondent filed a Writ Petition
before the Madras High Court, challenging the order of the Tribunal.
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SUPREME COURT REPORTS
[2017) 4 S.C.K
The High Court vide its judgment and order dated 24.01.2012, allowed
the writ petition, setting aside the order of the Tribunal. It was held that
increasing number of attempts in respect of Physically Handicapped
candidates in the General Category from 4 to 7 and not increasing
proportionally the attempts for Physically Handicapped candidates
belonging to OBC Category candidates is arbitrary. It was held that the
Petitioner (Respondent in the present appeal) is further entitled to 3
more chances. The Union of India aggrieved by the said judgment has
filed the SLP (c)No. 21587 of2013.
C.A. No. 859 of 2017 @ S.L.P.(C) N0.18420 OF 2015 & C.A.
No. 860 of 2017 S.L.P.(C) N0.25885 OF 2015
11. The common respondent in the aforesaid appeals is a Physically
Handicapped candidate belonging to the OBC Category who. had
submitted an application for Civil Services Examination, 2012. Although,
he was permitted to appear in the Preliminary Examination but when he
submitted the detailed application form for appearing in the Main
Examination, the Union Public Service Commission, having noticed that
he had already exhausted his 7 attempts at the examination, issued a
show cause notice and rejected his candidature for the 2012 Examination.
The candidate aggrieved by the rejection of his candidature filed an 0.
A. No. 930of2013 in the Central Administrative Tribunal Principal Bench,
Delhi.
12. The O.A. was contested by the Commission, stating that the
applicant in his application had not correctly mentioned the number of
attempts undertaken by him, and after scrutiny it was found that he had
already availed as many as 8 attempts at the examination, exhausting
the maximum number of attempts permissible to his Category, i.e.
Physically Handicapped candidates belonging to OBC Category, thereby
his candidature was rightly cancelled. It was also submitted that the
Writ Petitioner had not approached the court with clean hands as he had
not disclosed correctly, the number of attempts undertaken by him. There
being suppression of the facts and the applicant not being eligible to
appear in 2012 Examination, his candidature was rightly rejected.
13. The Tribwml vide its judgment and order dated 19.07.2013
dismissed the 0. A. The Respondent challenged the order of the Tribunal
before the Delhi High Court by filing a Writ Petition (c) No .. 7377 of
2013. The Respondent in his Writ Petition relied upon judgment of the
UNION OF INDIA & ORS. v. M. SELVAKUMAR & ANR.
[ASHOK BHUSHAN, J.]
Madras High Court in M. Selvukunwr (supr(l). The Delhi High Court
held that as long as the declaration oflaw as held in M. Se/v(lku11wr's
case stands, the Tribunal ought to have followed it. The Delhi High Court
following the judgment of M. Se/v(lkUm(lr agreed with the view of the
Madras High Court, and stated that in the case of OBC Candidates, 7
attempts permitted to both physically-abled candidates and those with
disability is discriminatory. The Delhi High Court allowed the Writ Petition
and set aside the rejection of the candidature of the Petitioner and directed
for declaration of the result and ifthe Petitioner was found successful,
his claim for appointment was directed to be processed.
14. The Union Public Service Commission filed an appeal
challenging the above judgment dated 13.10.2014 and this Court on
08.07.2015 stayed the operation of the aforesaid judgment of the Delhi
High Court.
15. We have heard Mrs. V. Mohana, Senior Advocate Mr. Sanyat
Lodha, Ms. Gunwant Dara and Mr. Mukesh Kumar Maroriya for the
appellants and Mr. Rajanmani, Ms. Jyoti Mendiratta and Mr. Satya M~tra
for the respondents.
16. Learned counsel for the appellants submits that the view taken
by both the Madras High Court and the Delhi High Court, that there is
discrimination, since attempts permitted for Physically Handicapped
candidates belonging to the General Category and that of Physically
Handicapped candidates belonging to OBC Category have been made
equal, is erroneous. It is contended that Physically Handicapped
candidates both of General Category and OBC are entitled for 7 chances
as per Civil Services Examination Rules. The candidature of the
Respondents in both the appeals having exhausted their 7 permissible
attempts, was rightly rejected. The Madras High Court although did not
quash the Civil Services Examination Rule, but had directed that
Physically Handicapped candidates belonging to OBC should be given 3
additional attempts on erroneous grounds. It is contended that the
relaxation granted to different categories of candidates in the Civil
Services Examination is a matter of policy for the Union of India and
there being no error in the said policy, the High Court ought not to have
tinkered with the Civil Services Examination Rules, by directing something
contrary to the Rules. It is submitted that after the 2007 Examination,
the attempts for Physically Handicapped candidates belonging to General
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SUPREME COURT REPORTS
[2017] 4 S.C.R.
Category were increased to 7, which is at par with the Physically
Handicapped candidates belonging to the OBC Category. There is neither
any discrimination norany arbitrariness.
17. Refuting the submission of the learned counsel for the appellant,
learned counsel for the -respondents contended that the Government to
achieve the objective of increasing the representation of disabled persons
in the Civil Services has increased the number of attempts for Physically
. Handicapped candidates belonging to General Category by 3 more ·
attempts. The aforesaid increase of3 more attempts ought to have been
granted to disabled persons of the OBC category as well. .Equating the
number of attempts for disabled persons from open category with the
number of attempts for disabled persons in the OBC Category, the
Government is treating the unequals equally which is forbidden under
Article 14 and 16( 1 ).
18. Learned counsel for the respondents has placed reliance on
the decision of the Delhi High Court in Writ Petition (c) No. 4853 of
2012 Anamol Blwiu/ari (Minor) ·1Jiroug/i liis Fat/ier/Natural
Guardian versus De/Iii Tecluwlogica/ University decided on·
12.09.20.12 and of this Court in Indra Sawlmey mu/ Others versus
Union of India and Others 1992 Suppl. (3) SCC 217, State of Kera/a
and Another versus N. M. Thomas and Others (1976) 2 SCC 310,
Union of lndia and Another versus National Federation of the Blind
& Others (2013) 10 SCC 772 and judgment of this Court in_ Justice
Su11amla Blwndare Foundation versus Union of India and Others
(2014) SCC 383. Learned counsel has also relied on Press Note dated
27•h April, 2007 issued by Government oflndia, Ministry.of Personnel,
Public Grievances and Pensions as well as the rep01i of May 2007
issued by the World Bank "People with disabilities in
India ............................. from commitments to outcomes".
19. We have considered the submissions of the learned counsel
of the concerned parties and perused the records. Before we proceed
to the respective submissions of the learned counsel for the parties, it is
relevant to refer to the Civil Services Examination Rules which governed
the field. The Respondent in Madras High Court case has appeared in
2008 Examination whereas Respondent in Delhi High Court Case has
appeared in 2012 Examination in which, their respective candidatures
were rejected on the ground that they have exhausted the maximum
permissible attempts i.e. 7.
·Vl'.'JION OF INDIA & ORS. v. M. SELVAKUMAR & ANR.
147
[ASHOK BHUSHAN, J.]
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20. The Notification dated 29 .12.2007 has been filed as Annexure
A
P-1 to SLP(C) 2'1'587 of2()13 (dr g0verning 2008 Examination. Para 4
which perfained to the number of attempts is as follows:
"4. Every canaidate appearing at the examination who is
otherwise eligible, shall be perinitted four attempts at the
exainination.
Provided that this restriction on 'the number of attempts
will not apply .in the. case of Scheduled Castes and Scheduled
Tribes candidates. who are ~therwise eligible:
, ': ..
Provided further that the number of attempts permissible
to candidates belonging to Other Backward Classes, who are
otherwise eligible, shall be seven. The relaxation will be
available to the candidates who are eligible to avail of
reservation applicable to such candidates.
Provided further that a physically handicapped will get
as many attempts as are "available to other non-physically
handicapped candidates of his or her community, subject to
the condition that a physically handicapped candidate
belonging to the General Category shall be eligible for seven
attempts. The relaxation will be available to the physically
handicapped candidates who are eligible to avail of
reservation applicable to such candidates. "
21. Another rule which is of the relevance here is Rule 6. Rule
6(a) provides that candidate must have attained 'the age of21 years and
must not have attained the age of 30 years as on the I" of
August.. ............ '
"6(a) a candidate must have attained the age of.21 years and
must not have attained the age of 30 years on the ]"of August,
2008 i.e. he must have been born not earlier than 2"J August,
1978 and not later than ]"August, 1987."
Rule 6(b) provides for relaxation of upper age limit. Rule 6(b) (i),
(ii) and (vii) with note one which is relevant is as quoted below:
"6(b) The upper age-limit prescribed above will be relaxable:
,
(i) Up to a maximum of five years if a candidate belongs to
a Scheduled Caste or a Scheduled Tribe;
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SUPREME COURT REPORTS
[2017) 4 S.C.R.
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(ii)
Up to a maximum of three years in the case of candidates
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belonging to Other Backward Classes who are eligible to
avail of reservation applicable to such candidates;
(vii) upto a maximum of JO years, in the case, of blind, deaf
mute and Orthopaedically handicapped persons,
Note I-Candidates belonging to the Scheduled Castes and the
Scheduled Tribes and the Other Backward Classes who are also
covered under any other clauses of Rule 6(b) above, viz. those
coming under the category of Ex-servicemen, persons domiciled in
the State of J & K, blind, deaf-mute and orthopaedically
handicapped etc. will be eligible for grant of cumulative agerelaxation under both the categories."
22. The Rules as extracted above for 2008 Examination are
identical with regard to Civil Service Examination 2012 as it appears
from the Notification dated 04.02.2012, brought on record in SLP (C)
No. 18420 of 2015. The reference of Rule for 2008 Examination as
quoted above shall be sufficient to decide the issue.
23. Article 16 of the Constitution provides for equality of opportunity
in matters of public employment. The State in terms of Article 16 of the
Constitution provides t\_\'O types of reservations i.e. a vertical or social
reservation as provided for i11 Article 16 sub clause ( 4) and horizontal
reservation which is referable to Article 16 sub clause (I). Special
reservation in favour of physically handicapped, women etc. under Article
16(1) or 15(3) of the Constitution are the instances of horizontal
reservation.
24. A 9-Judges Bench in Jndm Sawlmey and Others versus
U11io11 of India and Others 1992 Suppl. (3) SCC 217 had elaborately
considered both the concepts of reservation. In Para 812 of the said
judgment, Justice B. P. Jeevan Reddy, has referred to both the types of
reservations. It was held that horizontal reservations cut across the vertical
reservation. Following was stated:
"812. There are two types of reservations, which may; for the
sake of convenience, be referred to as 'vertical reservations '
and 'horizontal reservations'. The reservations in favour of
Scheduled Castes, Scheduled Tribes and other backward
classes [under Article 16(4)) may be called vertical
UNION OF INDlA & ORS. v. M. SELVAKUMAR & ANR.
149
[ASHOK BHUSHAN, J.]
reservations whereas reservations in favour of physically
handicapped [under clause (1) of Article 16] can be referred
to as horizontal reservations. Horizontal reservations cut
across the vertical reservations - what is called interlocking
reservations. To be more precise, suppose 3% of the vacancies
are reserved in favour of physically handicapped persons;
this would be a reservation relatable to clause (1) of Article
16. The persons selected against this quota will be placed in
the appropriate category; if he belongs to SC category he
will be placed in that quota by making necessary adjustments;
similarly, if he belongs to open competition (OC) category,
he will be placed in that category by making necessary
adjustments. Even after providing for these horizontal
reservations, the percentage of reservations in favour of
backward class of citizens remains - and should remain - the
same. This is how these reservations are worked out in several
States and there is no reason not to continue that procedure."
25. In the present case before us, issues centre around, the second
category ofreservation i.e. horizontal reservations which is provided for
. candidates belonging to the Category of Physically Handicapped. ln the
Civil Services Examination both vertical and horizontal reservations are
provided for. The reservation for SC/ST and Other Backward Classes
(OBC) which has been provided for in the Civil Services Examination
with regard to number of posts is not in issue rather what is the content
of horizontal reservation provided for Physically Handicapped Category
in Civil Services Examinat"ion is up for consideration. Especially, as to
whether in grant of relaxation with regard to number of attempts to
appear in the Civil Services Examination in context of Physically
Handicapped candidates of General Category to 7 and not further
increasing the number of attempts for OBC Physically Handicapped
candidates from 7, there is a discrimination or violation of Article 14 of
the Constitution, is the moot question to be answered.
26. From the Rules of Civil Services Examination, as noticed above
following result in context ofnumber of attempts is discernable:
"(i) Every candidate appearing at the examiiiation who is
otherwise eligible, shall be permitted 4 attempts at the
examination
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(ii) The. first proviso to 1he rules provided that the restriction
of the number of attempts will not apply in the case of
Sc;IST candiqqtes
,.
(iii) The Second proviso of the Rule provided that attempts
permissible to candidates belonging to Other Backward
Class shall be 7.
(iv) The Third proviso to rule provides that a physically
handicapped will get as many (Jtlempts as are available
..
. t.o other non-physically handicapped candidates of his
·
();. her i:ofri,m'imity, subject to the conditio~z Jhat a
.fJhystca!fy h~ndicapped qahdidate oe'!'dnging Yo ihe
; generai categ-Or~ sh'all be' ei(gible fbr; 7 'f.Jtie~llptS.'" . ' '
.27. The maitt plank o.(thearguments of.Respondents is that prior
to 2007 Civil Services Examination, number of attempts for candidates
belonging to General Category i!1cluding Physically Haqdicapped was
only 4 and it was only in 2Q07. that number of attemptsfor phys.ically
.handicapped candidates of General.Category were increased from 4 to
7. And since no ,proportionate. incre~~e i" tli~ number of\ltte)llpt~ for
. , PhysicallyJ:fandicapped Category cai:i~idate.s,ofQBC w.11s.111.a?e, the
grant to.the respondeμt is ar~itr;:iry ;rnd discriminatory being violative of
Arti.cle 14_. At this juncture, it is releva11t.to rote therfi!asons,giyen by
Madras High Court for allowing the writ pi:titions. fo 'para No·. 6 and 7
of the judgment, the Madras High Co~rt observed iis follows: · ·
· "6 .... When the ·number of attempts· has been increased from
four. to seven in respect of physicpl/y challenged candidates
· in the General Category and whell there is ·no restriction with
regard to the number of attempts for physically handicapped
. : candidates in SC/ST category, res.tr(cting the mm1ber of
attempts to seven in 1e.spect .of physic.ally handicapped
. candidqtes i'! .the. 0th.er Ba<;'f>warr;l CJ.ass .. Co1111i1.lff1ity, {$. in
vi9lation, of article. 14. of the, f.ons.M~i;tiqn of fn,dia.,.Therefqre
we ~,old.that th.<: nu,111,b,er. Q/.a(tempf$ .qf,seven fixedJor
physically ha.nqicappr:d candidates in.,the. Other Ba,qkward
Class Con~mu.nity, is disproportfonate to the iiumber of attempts
grai1ted to physically handicapped candidates in the General
Categor)?."
.. . .
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UNION OF INDIA & ORS. v. M~ SELVAKUMAR& ANR.
[ASHOK BHUSHAN, J.]
"7 ... .Jn this case admittedly, the number of attempts in respect
uf physically handicapped.candidates in the General Category
has been increased from four to seven. However, the number
of attempts in respect of physically handicapped candidates
belonging to Other Backward Class community has not been
proportionately increased, which is arbitrary and prejudicial
to the interest of.the physically handicapped candidates
belonging to Other Backwr;rd Class Community."
2'8. ·Whether aC:tually tliere "is,any discrimination in number of
attempts made available to Physically H.aiidicapped candidates, belonging
to General Category and.those of OB~ Categocy.·is the questio11to- be
answered. All Physically Hai1dicapped Category candidates have been
granted uniform relaxation of upper age by I 0 years, as per Rule 6, as
quoted above in addition to relaxation in age of 5 years for SC Category
candidates and 3 years for OBC Category candidates as per Note-I of
Rule 6, the benefit of age relaxation can be taken by Reserved Category
ca11didates cumulatively.
29. Last sub rule of Rule 4 as noted above indicates tha.t the 3rct
proviso contains .. a theme .of relaxation pertaining to Physically
Handicapped candidates who are eligible toavailreservation applic\\bJe
to such.candid;ites)?rovic!ed ~urtber,that a physically handicapped will
get as many attempts as are available to other non-physically handicapped
cand.idates of his or her community. The above is subject to the condition
that a physically handicapped ca11didate belonging to the General category
shall be eligible for seven attempts: Thus, a Physically Handi€apped
candidate ofGeneral·Category has been given equal chance as compared
to a Physically J-landicapped ca,ndidate belonging to OBC. No
discrimination .c;tn be read, when the number of attempts for both the
above categories has been made equal i.e. 7. The number of attempts
for SC/ST candtdates is unlimited-within their maximum age limit with
regard tO 'Miich there is no challenge.
3o. R~servation i~r Physicaily Himdicapped is a kind ofhorizontal
reservation, as noted above. As accepted; physically handicapped persons
belonging to any category i.e.Ge1ieral; OBC, SC/ST have·to be given ·
opportunity to come up a11d compete in the mainstream, and enjoy all tl1e
benefits· and developments. The Parliament, with a view to implement
the above, enacted 'The Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 '.
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31. This court has time and again noted the State's obligation to
permit overall development of all its citizens including those who are
differently-abled. Equal opportunities have to be given to differentlyabled persons to come up and take benefit of public employment. This
court in U11ion of India mu/ Others versus National Federation of
Blind and Others (2013) 10 SCC 772 has laid down the following in
para23:
"23. India as a welfare State is committed to promote overall
development of its citizens inpluding those who are differently
abled in order to enable them to lead a life of dignity, equality,
freedom and justice as mandated by the Constitution of India.
The roots of statutory provisions for ensuring equality and
equalization of opportunities to the differently abled citizens
in our country could be traced in Part III and Part JV of the
Constitution. For the persons with disabilities, the changing
world offers more new opportunities owing to technological ·
advancement, however, the actual limitation surfaces only
when they are not provided with equal opportunities.
Therefore, bringing them in the society based on their
capabilities is the need of the hour. "
32. When the attempts of Physically Handicapped candidates of
OBC Category and Physically Handicapped candidates of General
Category, who appeared in the Civil Services Examination are made ·
equal, and· a Physically Handicapped candidate belonging to OBC
Category, in addition to 10 years relaxation in age also enjoys 3 years
more age relaxation for appearing in the examination, we cannot agree
with the High Court that there is discrimination between Physically
Handicapped candidates ofOBC Category and Physically Handicapped
Candidates of General Category. The reserved category candidate
belonging to OBC are separately entitled for the benefit which flow
from vertical reservation, and the horizontal reservation being different
from vertical reservation, no discrimination can be found when Physically
Handicapped candidates of both the above categories get equal chances
i.e. 7 to appear in the examination.
33. In this context, a reference to judgment of this Cou1t in Mallesll
Gupta tmd Otlzers versus Yasltwant Kumar Altirwar and Otlzers
(2007) 8 sec 621 shall not be out of place.
UNION OF INDIA & ORS. v. M. SELVAKUMAR & ANR.
[ASHOK BHUSHAN, J.]
.
34. The State of Madhya Pradesh issued an advertisement for
recruitment of handicapped persons to several posts. The appellants
who were Physically Handicapped, belonging to General Category got
selected. The Respondent No. 1, a handicapped person belonging to
Reserved Category challenged the selection before the Administrative
Tribunal. The Administrative Tribunal rejected the claim. Writ Petition
was filed by the 1st Respondent. The High Court set aside the order of
the Administrative Tribunal. High Court directed the State Government
to examine whether posts were to be filled from the members of the ST
Category or members of the SC Category only or from the Category of
OBC or these posts were for all the categories as mentioned above.
After the judgment of the High Court, a show cause notice was issued
to the appellants and subsequently their services were terminated.
Appellants have challenged the abovementionedjudgment of the High
Court before this Court. This Court in the above context came to consider
the vertical and horizontal reservations. Following was laid down by this
cou11 in para 10, 11 and 12:
"IO.The State in terms of Article 16 of the Constitution of India
may make two types of reservations-vertical and
horizontal. Article 16(4) provides for vertical reservation;
whereas Clause (1) of Article 16 provides for horizontal
reservation.
11. The State adopted a policy decision for filling up the
reserved posts for handicapped persons. A special drive
was to be launched therefor. The circular letter was issued
only for the said purpose. A bare perusal of the said
Circular Letter dated 29-3-1993 would clearly show that
the State had made 3% reservation for blinds and 2% for
other physically handicapped persons. Such a reservation
falling within Clause (1) of Article 16 of the Constitution
has nothing to do with the object and purport sought to
be achieved by reason of Clause (4) thereof
12. Disability has drawn the attention of the worldwide
community. India is a signatory to various international
treaties and conventions. The State, therefore, took a
policy decision to have horizontal reservation with a view
to fulfil its constitutional object as also its commitment to
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the international community. A disabled is a disabled. The
· · ques·tion of making any further neservation on the basis
.of caste, creed or nligiotr ordiliarily may not arise. They
constitute a special. class. The advertisement, however,
failed to mention in regard to the reservation for
handicapped persons at the outset but, as noticed
hereinbefore, the vacant posts were required to be .filled
up for two categories of candidates; one for Scheduled
Caste and Scheduled 'Tribe candidates and other for
handicapped candidates. Handicapped candidates have
not been furJher cJassified. as belonging to Scheduled
Castes, Scheduled,. Tribes and general. category
'candidates. ;,
·
(underlined by us)
35. The appeal was allowed and those Physically Handicapped
. candidates, who were selected from General Category and had their
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services·subsequentlyterminated, were directed to be continued in service.
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36. Learned counsel for the respondents has also contended that
in view of the fact that Physically Handicapped candidates of OBC
Category are now allowed only 7 attempts which is equivalent to
physically-abled candidates of OBC Category hence Physically
Handicapped and Physically-abled OBC Category candidates have to
compete which is equality between unequals violating Article 14. The
another limb of argument is that the Physically Handicapped candidates
of General Category and candidates of Physically Handicapped OBC
Category have been permitted equal attempts, which is nothing but treating
unequals as equals violatingA1ticle 14. Relying on Indra Sawlmey versus
Union of l11dia (supra), it is contended that equality contemplated by
Article 14 is 1icit only when equals are treated equally but also when
unequals are treated unequally. Cotiversely, when unequals are treated
equally, mandate of equality before law is breached. He has relied on
following observations made in para 415:
"415: It is no lqnger necessary to emphasise that equality
contemplated by Article 14 and other cognate articles
includ~ng Articles 15(1), 16(1), 29(2) and 38(2) of the,
. .Constitution, is secured not only when equals are treated
equally but also when unequals are treated unequally.
UNION OF INDIA & ORS. v. M. SELVAKUMAR & ANR.
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[ASHOK BHUSHAN, J.]
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