The question came before Supreme Court in Union of India & ors v M. Selvakumar & Anr on 24 January 2017, whether Physically Handicapped Candidates belonging to Other Backward Caste (OBC category) are entitled to avail 3 more attempts, adding it up to a total of 10, in Civil Services Examination on the reason that the attempts for Physically Handicapped Candidates belonging to General Category have been increased from 4 to 7.
The Central Government under All India Services Act, 1951 amended Civil Services Examination Rules under clause 3 (iv) of notification dated 29.12.2007 adding that the Physically Handicapped candidate belonging to General Category are eligible for 7 attempts. The notification dated 29.12.2007 was challenged before the Supreme Court on the ground of violation of Article 14 and in violation of basic frame work of the PWD Act, 1995 on the ground that 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).
Article 16 of the Constitution of India provides for equality of opportunity in the matter of public employment. It provides two types of reservation, namely, Vertical or social reservation as provided in Art 16 (4) and Horizontal reservation under Article 16 (1). The instances of Horizontal reservation are Article 16 (1) and 15 (3). The nine Judge Bench in Indra Sawhney and ors v. Union of India and ors 1992 Suppl, (3) SCC 217 held that Horizontal reservation can cut across vertical reservation. The following points were stated as under;
“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 reservations whereas reservations in favour of Physically Handicapped under Article 16 (4) 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 Article 16 (1). 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.”
The question is issue is Horizontal Reservation which is provided for the candidates belonging to the category of Physically Handicapped category 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 Art 14 of the Constitution, and whether there is actually any discrimination in the number of attempts made available to Physically Handicapped Candidates, belonging to General Category and those of the OBC category. The Court held that equality contemplated by Article 14 is not only when equals are treated equally but also when unequals are treated unequally. Further relying on the observation made in Indra Sawhney;
“It is no longer necessary to emphasise that equality contemplated by Article 14 and other cognate articles including 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. Conversely, when unequals are treated equally, the mandate of equality before law is breached. To bring about equality between the unequals and therefore, it is necessary to adopt positive measures to abolish inequality. The equalizing measures will have to use the same tools by which inequality was introduced and perpetuated. Otherwise the equalization will not be of the unequals. Article 14 which guarantees equality before law would by itself, without any other provision in the Constitution, be enough to validate such equalizing measures. The Founders of the Constitution, however, thought it advisable to incorporate another provision under Art 16 specifically providing for equality of opportunity in matters of public employment. Further they emphasized in (4) thereof that for equalizing the employment opportunities in the services under the State, the State may adopt positive measures for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in such services. By hindsight, the foresight shown in making the provision specifically, instead of leaving it only to the equality provision as under the U. S. Constitution, is more than vindicated.”
The Court thus relying on above mentioned arguments held that in the case of the OBC candidates, the number off attempts permitted to both physically fit candidates and those with disability is 7. The proposed equation under such circumstances was held to be discriminatory by M. Selvakumar which directed an increase by 3 attempts and thus the judgment of Delhi High Court was held to be erroneous, and thus the Court concluded that increasing the number of attempts for Physically Handicapped candidates belonging to General Category from 4 to 7 and not proportionally increasing the number of attempts for Physically Handicapped candidates belonging to OBC category from 7 to 10 is discriminatory in nature, and thus unsustainable.