PwD Recruitment Must Strictly Follow RPwD Act; Executive Resolutions Cannot Override Statute: Patna High Court

The Patna High Court has held that recruitment to posts reserved for persons with disabilities must strictly conform to the statutory scheme prescribed under Section 34(2) of the Rights of Persons with Disabilities Act, 2016, and that executive resolutions or recruitment notifications which are inconsistent with the Act cannot create any enforceable right in favour of candidates. A Single Judge Bench of Justice Bibek Chaudhuri was hearing a batch of writ petitions involving a common issue relating to selection to the posts of Junior Engineer, particularly with respect to horizontal reservation for persons with disabilities and the manner in which unfilled vacancies within the PwD category were dealt with. The petitions arose out of recruitment initiated by the Bihar Technical Service Commission for 6,379 posts of Junior Engineer pursuant to Advertisement No. 1 of 2019.Background:The petitioners relied on the General Administration Department's Resolution dated 12 October 2017 which provided for 4 per cent horizontal reservation for persons with disabilities and permitted unfilled vacancies in one sub-category to be filled by candidates from other sub-categories of persons with disabilities. They contended that the subsequent Resolution dated 22 January 2021 fundamentally altered this scheme by permitting unfilled vacancies of a particular PwD sub-category to be carried forward to the unreserved category, without first exhausting candidates from other identified sub-categories. According to them, the application of the 2021 resolution resulted in unfilled vacancies of visually handicapped, hearing handicapped and mentally handicapped categories not being filled by candidates from other PwD sub-categories, and instead being carried forward to the unreserved category.The central question before the Court was whether the method of recruitment adopted on the basis of the 2021 resolution was consistent with the statutory mandate under Section 34(2) of the Rights of Persons with Disabilities Act, 2016.Court's Reasoning: The High Court held that the right of persons with benchmark disabilities in public employment is governed by the Rights of Persons with Disabilities Act, 2016, a central legislation, and that reservation in employment must strictly follow the statutory framework prescribed under Section 34 of the Act.The Court noted that while Section 34 provides for reservation for persons with benchmark disabilities, sub-section (2) of Section 34 specifically lays down the manner in which such reserved vacancies are to be dealt with during the recruitment process. Although the State Government is the “appropriate Government” under the Act and is competent to grant age relaxation and other permissible concessions, it does not have the authority to alter or modify the statutory mode of recruitment prescribed under Section 34(2).The High Court reiterated that executive instructions cannot override statutory provisions and must yield to the parent enactment. It held that once the foundational resolution itself is found to be not in strict conformity with the mandate of Section 34(2) of the 2016 Act, the entire recruitment process undertaken on the basis of such a framework becomes legally vulnerable. It held:“The Court is conscious of the fact that the recruitment process in question has undergone several stages and that select lists have been prepared from time to time. However, if the very basis of recruitment is not in consonance with the governing Statute, the Court cannot undertake the exercise of restructuring or reconstructing the selection process. In exercise of jurisdiction under Article 226 of the Constitution of India, this Court is not expected to assume the role of a recruiting authority or to redesign the selection mechanism.”The Bench observed that where the statutory foundation of a recruitment process itself is inconsistent with the governing law, no enforceable right can accrue in favour of any candidate seeking appointment under such a process. In such circumstances, the Court held that it cannot direct the continuation or modification of a recruitment exercise which is not strictly in conformity with the statutory mandate.The Court held that Resolution No. 13062 dated 12 October 2017, which formed the basis of the recruitment in question, did not strictly conform to the scheme prescribed under Section 34(2) of the Rights of Persons with Disabilities Act, 2016. It noted that Clauses 2(viii) and 2(ix) of the 2017 Resolution were not in conformity with the statutory provisions.The Bench further observed that it was for this reason that the General Administration Department was compelled to issue the subsequent notification in 2021 to bring the recruitment framework in line with Section 34(2) of the 2016 Act. It reiterated that any recruitment notification issued dehors the statute is ultra vires. Since the petitioners were seeking appointment under the 2017 Resolution, which itself was contrary to ...

PwD Recruitment Must Strictly Follow RPwD Act; Executive Resolutions Cannot Override Statute: Patna High Court

Rushil Batra

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