MUMBAI: The Bombay high court on Monday disposed off a petition filed by a person with disability, seeking retrospective appointment to the civil services based on his performance in the 2008 examination. He alleged that he was denied reservation due to his mental disability. Holding that the selection process was valid, the court stated that it could not grant relief to the petitioner based on his marks from the 2006-2008 selection process.
The petitioner said that upon a literal interpretation or rather misinterpretation of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, reservations for persons with disabilities were provided only for 3% of the posts. Further, the posts identified were for only those suffering from blindness or low vision, hearing impairment, and locomotor disability or Cerebral Palsy. No posts were identified for those suffering from any mental illnesses.
The petitioner stated that he was afflicted by obsessive-compulsive disorder (OCD), which is considered a mental disability within the meaning assigned under Section 2(s) of the Rights of Persons with Disabilities Act, 2016 (2016 Act). He pleaded that despite him suffering from mental illness, he could not apply to the posts reserved for persons with disabilities in the selection process. Therefore, he applied to be considered against the posts reserved for the OBC category.
In the examination held in 2008, the petitioner secured 1110 out of 2300 marks. However, he could not get a position under the OBC category. He stated that the last candidate selected in the category reserved for persons with disabilities had secured only 991 marks out of 2300. “If posts were to be identified and reserved for those suffering mental illness, then he would have certainly secured a position in the civil services in the year 2008 itself,” the petition stated.
Citing a 2013 judgment passed by the Delhi high court, the petitioner argued that the definition of ‘person with disability’ includes a person suffering from mental illness. He contended that the exclusion of those suffering from mental illnesses rendered the provisions of the 1995 Act arbitrary and unconstitutional due to the vice of under inclusiveness.
The 2016 Act came into force, which legislatively redressed the petitioner’s concerns by expanding the definition of disability and included mental illness, autism spectrum disorder, intellectual disability, specific learning disabilities, and others, which were not covered under the 1995 Act.
Based on the changed legal position under the 2016 Act, the petitioner represented to the central government and the Department of Disabilities that he should be appointed to the Civil Services based upon his performance in the 2006–2008 selection process. However, his representations were rejected by a communication dated July 5, 2018, and February 27, 2019. He was informed that no changes could now be made to the selection process that had concluded in 2008. Aggrieved by this, the petitioner approached the Bombay high court on April 1, 2019.
However, observing that the grant of relief would lead to administrative chaos, the division bench of justice MS Sonak and justice Jitendra Jain disposed off the petition. It noted that his appointment at this point of time will give rise to several complications regarding seniority, induction, etc. “The petitioner’s case was fairly and sympathetically considered but the authorities quite correctly found it difficult to grant the petitioner relief that he was seeking at this point of time,” it concluded.