1 2025:CGHC:35385-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WA No. 459 of 2025 1 - Brij Kumar Sao (L.V.) S/o Tikeshwar Sao Aged About 32 Years Caste Obc R/o Village Tongopathra Post Sukhipali Thana Pithoura District - Mahasamund (C.G.) 2 - Ashish Pradhan (L.V.) S/o Vishwanath Pradhan Aged About 35 Years (Obc) R/o Vill. Toresingha Post Toresingha Teh. Saraipali District - Mahasamund (C.G.) - 493558 3 - Rashmi Sharma (L.V.) S/o Ramashish Sharma Aged About 31 Years (G-(F) R/o Silphili Post Kamari Block Shankargarh District- Balarampur - Ramanujganj (C.G.) 4 - Rajesh Kumar (Ortho) S/o Loknath Aged About 31 Years (Obc) R/o Village Rengakathera Post Mathaldabri) Tahsil Dongargaon District - Rajnandgaon (C.G.) - 491661 5 - Jyoti Patel (Ortho) D/o Pradeep Patel Aged About 35 Years (Obc) (G- (F) R/o Near Jindal Pump House Badatikra Post Garhumariya District - Raigarh (C.G.) - 496001 6 - Pallavi Sharma (Ortho) D/o Indra Kumar Sharma Aged About 37 Years (Gen. (F) R/o Near Shri Ram Talkies Gongapara Mahasamund District - Mahasamund (C.G.) - 493445 7 - Rameshwar Dhiwar (Ortho) S/o Ratiram Aged About 32 Years (Obc) R/o Village Bhandi Post Khaira (Dangniya ) Thana Seepat District - Bilaspur (C.G.) Pin – 495006 --- Appellants Versus 1 - State of Chhattisgarh Through The Secretary, School Education Department Mahanadi Bhawan Mantralaya, Atal Nagar Nawa Raipur (C.G.) 2 - Director Directorate Of Public Instructions Indrawati Bhawan Naya Raipur Atal Nagar, Post Office And Police Station Naya Raipur Atal Nagar District - Raipur (C.G.) 2 3 - Pallavi Sahu W/o Chandraprakash Sahu Aged About 32 Years R/o Village Nariyara Tahsil Akaltara, District - Janjgir (C.G.) 4 - Shani Ram S/o Jawahar Lal Aged About 33 Years R/o Village Nawagaon Post Nargoda, Tahsil Sipat District - Bilaspur (C.G.) -495550 5 - Pramod Kumar Sharma S/o Manoj Kumar Sharma Aged About 26 Years R/o Village Bilaspur Thana Bilaspur District - Bilaspur (C.G.)- 495551 6 - Padminee Sharma D/o Manoj Kumar Sharma Aged About 24 Years R/o Village Bilaspur Thana Bilaspur District - Bilaspur (C.G.)- 495551 7 - Ramkishore Patel S/o Samaru Patel Aged About 28 Years R/o Dumariha Para, Donga Kohraud Janjgir - Champa (C.G.) - 495554 --- Respondent(s) For Appellants : Mr. Santosh Rungta, Senior Advocate (through Video Conferencing) assisted by Mr. Jitendra Pali, Advocate. For Respondent(s) No. 1 & 2 : Mr. Shashank Thakur, Deputy Advocate General For Intervenors : Dr. Sudeep Agrawal alongwith Mr. Vikas Dubey, Advocates. WA No. 494 of 2025 1 - Dulari Patel D/o Fagu Lal Patel, Aged About 30 Years R/o Ward No. 12 Village And Post Gadbeda, P.S. And Tehsil Pithoura, District Mahasamund (C.G.) Pin 493551, Mob.- 7440490224 2 - Ramkishor Patel (B) S/o Samru Patel Aged About 29 Years R/o Ward No. 4, Dumariha Para, Village And Post Donga Kohroud, Ps And Tahsil Pamgarh, District Janjgir-Champa (C.G.) Pin 495554, Mob.- 7389982490 3 - Shivlochan Rajak (B/ Lv) S/o Ram Kumar Rajak, Aged About 30 Years R/o Ward No. 03, Yadav Mohalla, Village And District Bilaspur (C.G.) Pin 495112, Mob.- 7828731457 ---Appellants Versus 1 - State of Chhattisgarh Through Principal Secretary Department Of School Education Having Its Office At Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya Raipur Chhattisgarh 492002 2 - Public Education Directorate Chhattisgarh, Through Its Director, Having Its Office At Having Its Office At Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya Raipur Chhattisgarh 492002 3 3 - Chhattisgarh Professional Board (Vyapam) Through Its Secretary, Vyapam Bhawan, North Block, Sector-19, Atal Nagar, Naya Raipur Chhattisgarh 4 - Principal Secretary, General Administration Department Govt. Of Chhattisgarh, Having Its Office At Secretariat, Mahanadi Bhawan, Naya Raipur Chhattisgarh 492002 --- Respondent(s) For Appellants : Mr. Vijay Krishna Rao Deshmukh, Advocate. For Respondent No. 1, 2 & 4. : Mr. Shashank Thakur, Deputy Advocate General. For Respondent No.3 : Dr. Sourabh Pande, Advocate. Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Bibhu Datta Guru, Judge Order on Board Per Ramesh Sinha, Chief Justice 23/07/2025 1 Heard Mr. Santosh Rungta, learned Senior Advocate assisted by Mr. Jitendra Pali, and Vijay Krishna Rao Deshmukh learned counsel appearing for the respective appellants, Mr. Shashank Thakur, learned Deputy Advocate General appearing for the State as well as Dr. Sourabh Kumar Pande, learned counsel for the respondent/ CGVYAPAM as well as Dr. Sudeep Agrawal, learned counsel appearing for the intervenors. 2 Since both the aforesaid appeals arise out of judgment dated 08.05.2025 passed by the learned Single Judge in WP(S) No. 5957/2023 and other connected writ petitions, thus, both these appeals are being considered and decided by this common judgment. The prayer made in WA No. 459/2025, are as under: “a) Allow this appeal. b) Call for the records of writ proceedings in WPS No. 5964/2023 and set aside the impugned common judgment dated 8.5.2025 passed in said writ petitions. 4 c) Consequently grant the relieves claimed in the said writ petition No. 5964/2023 by allowing the said writ petitions. d) Any other relief in the discretion of this Hon’ble Court.” 3 Identical relief has been prayed by the appellants/writ petitioners in WA No. 494/2025, except for the change in the writ petition number. 4 Challenge made by the appellants/writ petitioners before the learned Single Judge was to the advertisement bearing No. Est.02/Advt./ Dir.Appt./2023/155/Naya Raipur dated 04.05.2023 for filling up the posts of Teachers-E-Cadre Non Gazetted Group C (Pay Matrix level-8), Teacher-T-Cadre Non Gazetted Group C (Pay Matrix level-8) (P/1) and further Advertisement No.Estt.02/Advt./Dir. Appt./2023/155/Naya Raipur dated 04.05.2023 for filing up the posts of Asstt. Teachers E-Cadre Non Gazetted Group C (Pay Matrix level-6), Asstt. Teacher-T-Cadre Non Gazetted Group C (Pay Matrix level-6) as well as the Notification dated 12.08.2023 for online counseling on the basis of examination results declared by respondent No.3 for selection to the posts in question to the extent that the same do not provide proper reservation to persons with different categories of disabilities in accordance with section 34 of Rights of Persons With Disabilities Act 2016 and RPWD Rules 2017 (for short, the Rules of 2017). It was alleged that the respondents have violated the said legal provisions and their own instructions as contained in the Office Memorandums dated 27.09.2024, 17.11.2024, 29.08.2018 and 05.03.2019, with regard to implementation of statutory scheme of reservation for persons with benchmark disabilities in as much as the respondents in the impugned advertisements and notification for online counseling have not bifurcated the vacancies to the extent of 2% each in the three categories viz. visually challenged, hearing impaired and loco- motor disabled and Cerebral Palsy and 1% for the fourth category of 5 disability viz multiple challenged and instead has provided for reservation for persons with disabilities as a combined category in utter violation of the said provisions as well as their own instructions and memorandums issued by themselves. The respondent authorities have further not provided 7% reservation in the online counseling for the posts advertised and have also not included the backlog vacancies in compliance of the judgment dated 08.10.2013 passed by the Hon’ble Supreme Court as well as the judgment dated 27.11.2015 passed by this Court. The advertisement was issued for recruitment for the post of Assistant Teachers without following the aforesaid Rules as well as judgment dated 08.10.2013 of the Hon’ble Apex Court in Union of India v. National Federation of the Blind & Others, passed in Civil Appeal No. 9096/2013 and a judgment dated 27.11.2015 of a Division Bench of this High Court in WPPIL No. 1470/2007. 5 The learned Single Judge, after hearing the parties, dismissed the writ petitions on the ground that the once the writ petitioners/appellants had appeared in the examination and has participated without challenging the reservation as sought by them, they were precluded and restrained from challenging the advertisement. However, the learned Single Judge had directed the State/respondents that in future, if any vacancy arises, due consideration due consideration must be given to the reservation for benchmark disabled persons, in accordance with the applicable rules. It was further directed that in any future advertisements, the category-wise reservation for benchmark disabled persons shall be clearly specified, in compliance with the law laid down by the Hon’ble Supreme Court in the matter of In Re: Recruitment of Visually Impaired in Judicial Services, passed in Suo Motu Writ Petition (Civil) No. 2 of 2024 and other connected petitions. 6 6 Mr. Rungta, learned Senior Advocate assisted by Mr. Jitendra Pali as well as Mr. Vijay Krishna Rao Deshmukh, learned counsel for the respective appellants submit that the learned Single Judge has grossly erred in dismissing the petitions even after noting that the respondents have failed to give 7% reservation to persons with disabilities and also that the respondents have not provided disability wise reservation separately insomuch as the said illegalities were sufficient for interfering in the subject recruitment for allowing the writ petitions filed by the appellants in view of the law laid down by Hon'ble Apex Court vide judgment dated 8.10.2013 making any deviation from the statutory scheme of reservation an act of non obedience for which the concerned Nodal Officer was liable to be proceeded against departmentally. It was wrongly observed by the learned Single Judge that if the writ petitioners/appellants were aggrieved by the advertisement which according to them was not in accordance with the Act of 1995 and Act of 2016 as also the RPWD Rules 2017, they cannot question the validity of the advertisement in which they have participated, as this finding is contrary to the law laid down by Hon'ble Apex Court in the case of Dr. Maj. Meeta Sahai v. State of Bihar reported as (2019) 20 SCC 17 wherein their Lordships categorically declared that candidates participated in the recruitment process can question it in case the advertisement is in contravention of any legal provisions after discussing the judgment of the Apex court in the case of Manish Kumar Shahi v. State of Bihar reported as (2010) 12 SCC 576. The learned Single Judge himself has concluded that in the subject recruitment, 7% vacancies were not reserved for persons with disabilities and there was no disability wises separate reservation as is required both under the statutory provisions of RPWD ACT 2016 as well as the respondent's 7 own OMs on which grounds the appellants had challenged the advertisements and recruitment process. The learned Single Judge has further erred by holding that if the appellants/writ petitioners were aggrieved by the advertisement, which according to them is not in accordance with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred as ‘PWD Act, 1995’) as well as the Rights of Persons with Disabilities Act, 2016 (hereinafter referred as ‘RPWD Act, 2016’) and Rights of Persons with Disabilities Rules 2017, cannot question the validity of the advertisement in which they have participated in so much as a Three-Judge bench of Hon'ble Apex Court also endorsed the said judgment of Meeta Sahai. The appellants/writ petitioners had challenged the recruitment process at the stage of online counseling and vide interim order their interest was protected. In any case, the said finding is also perverse in view of the recent judgments of Hon'ble Apex Court, when admittedly, the scheme of reservation was not implemented correctly by the respondents and in fact was in clear violation of Central Legislation and central Rules as well as law laid down by Hon'ble Apex court vide judgments in Indra sawhney v. UOI reported as AIR 1993 SC 477, UOI v. . National Federation of the Blind & Ors. (2013) 10 SCC 772, Siddaraju Vs. State of Karnataka reported in (2020) 19 SCC 572. Suo Moto Writ Petition (Civil) No. 2/2024, reported as 2025 INSC 300 and judgment dated .27.11.2015 in WP(PIL ) Νo.1470/2017 of a Division Bench of this Hon'ble High court. 7 Learned counsel for the appellants submit that the learned Single Judge further erred in dismissing the writ petitions by holding that since appellants did not challenge Rule 28(5) of Chhattisgarh Rights of Persons With Disabilities Rules 2019 which provide for horizontal and 8 compartment wise reservation, the appellants could not challenge the subject recruitment on the ground of illegality in linking the reservation for persons with disabilities with community based reservation in so much as in the first place, it is settled legal position that in the event of inconsistency between the Central Legislation and Rules and the State Legislation and the Rules, the Central Legislation and rules shall prevail. It is submitted that in terms of section 34 of RPWD Act 2016, the reservation for persons with disabilities is not in any manner connected with the community based reservation. Further, Rule 11 of RPWD Rules 2017 makes this position very clear when it stipulates that the vacancies reserved for persons with disabilities has to be maintained as a separate class of vacancies and a separate vacancy based roster has to be maintained for effecting the said reservation as opposed post based roster for community based reservation. In this regard reliance is placed on the judgment of Hon'ble apex court in the case of Gambhirdan K.Gadhvi Vs. State of Gujarat & Ors. reported as (2022) 5 SCC 179 . 8 On the other hand, Mr. Shashank Thakur, learned Deputy Advocate General appearing for the State opposes these appeals and submits that no interference is warranted with the order of the learned Single Judge, being just and proper. Once the appellants/writ petitioners participated in the recruitment process, they cannot turn around and challenge the same on any grounds. 9 Dr. Saurabh Kumar Pande, learned counsel for the respondent/ CGVYAPAM submits that the respondent-CGVYAPAM is only responsible for conducting the examination as per the requirement of the State Government and nothing else and the main contesting party in these appeals is the State. 9 10 Dr. Sudeep Agrawal, learned counsel appearing for the Intervenors submit that they fully agree with the submissions advanced by the learned counsel for the writ petitioners/appellants. 11 We have heard learned counsel for the parties, perused the pleadings and documents appended thereto. 12 In the concluding paragraph, the learned Single Judge has observed as under: “25. However, considering the fact that physically disabled persons were not provided adequate opportunity in the said recruitment process, and that the petitioners themselves did not challenge the advertisement prior to participating, the respondent State is directed that in the future, if any vacancies arise, due consideration must be given to the reservation for benchmark disabled persons, in accordance with the applicable rules. Furthermore, in any future advertisements, the category- wise reservation for benchmark disabled persons shall be clearly specified, in compliance with the law laid down by the Hon’ble Supreme Court in the matter of In Re: Recruitment of Visually Impaired in Judicial Services, passed in Suo Motu Writ Petition (Civil) No. 2 of 2024 and other connected petitions. 26. With the aforesaid direction/observation, the writ petitions stand disposed of. No order as to cost(s).” 13 The basic grievance of the appellants/writ petitioners was that disability wise reservation was not provided in terms of Section 34 of the RPWD Act, 2016 read with Rule 11 of the RPWD Rules and the OMs issued by the State as detailed in paragraph No. 4 of this judgment. The learned Single Judge, while dismissing the writ petitions filed by the appellants/ writ petitioners, it appears, has not taken into consideration the various provisions of the Act and the Rules as aforesaid as also the directions contained in the judgment dated 03.03.2025 in Suo Motu Writ Petition (C) No. 2 of 2024. 10 14 The writ petition filed by the appellants/writ petitioners could not have been dismissed merely on the ground that they participated in recruitment process without any demur or protest as their rights as provided under the Act and the Rules and the directions issued by the Hon’ble Apex Court, is being affected. The learned Single Judge has further observed that the State must adhere to the directions issued by the Apex Court in Suo Motu Writ Petition (Civil) No. 2/2024 and other connected petitions, without specifying as to which of the directions were required to be complied with and whether the said judgment was of any assistance to the writ petitioners/appellants. This aspect of the matter has been overlooked by the learned Single Judge and as such, we deem it appropriate to set aside the order dated 08.05.2025 passed by the learned Single Judge and restore the writ petitions to its original number and reconsider the writ petitions afresh on merits and pass appropriate orders in light of the decision rendered by the Apex Court in Suo Motu Writ Petition (Civil) No. 2/2024. It is ordered accordingly. 15 During pendency of the writ petitions, the learned Single Judge had passed an order on 20.09.2023 in WPS No. 5957/2023 and 5964/2023 to the effect that any recruitment made in between shall be subject to the outcome of those writ petitions. The said interim direction shall continue to operate till the writ petitions are decided afresh by the learned Single Judge. 16 With the aforesaid observation and direction, these appeals are allowed. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.07.25 13:48:37 +0530