2025:UHC:4151-DB HIGH COURT OF UTTARAKHAND AT NAINITAL HON’BLE JUSTICE SRI MANOJ KUMAR TIWARI AND HON’BLE JUSTICE SRI ASHISH NAITHANI Writ Petition (S/B) No. 159 of 2025 Priyank Prasad Gairola -Petitioner Versus State of Uttarakhand and Others --Respondents -------------------------------------------------------------------- Presence:- Mr. Abhilash Nainwal, Advocate for the petitioner. Mr. B.S. Parihar, Standing Counsel for the State of Uttarakhand. Mr. Pankaj Miglani, Advocate for respondent no. 2. -------------------------------------------------------------------- The Court made the following: JUDGMENT: (per Hon’ble Justice Sri Manoj Kumar Tiwari) Petitioner is a physically disabled person. As per the Disability Certificate, he has disability to the extent of 45%, as he is having only one leg. Petitioner applied for the post of Assistant Engineer in a selection held by Uttarakhand Public Service Commission, and he has been declared successful also against the vacancy reserved for persons with disability. 2. The problem which is being faced by petitioner is that the vacancy in question, which is reserved for physically disabled persons, has been earmarked for a candidate who is partially deaf, while petitioner’s disability is of different kind, therefore, petitioner’s claim for appointment is not being considered by the Uttarakhand Public Service Commission. 3. By means of this Writ Petition, petitioner has sought the following reliefs:- “(i) Issue a writ, order or direction in the nature of Mandamus, commanding the Respondents to interchange the reserved post of PH- PD category for Assistant Engineer (Civil), Irrigation Department, by permitting its filling from among other benchmark disability sub- categories, including OL (One Leg), in strict adherence to Section 34 (2) of the Rights of Persons with Disabilities Act, 2016, Rule 11 of the Rules, 2017, and the Government Order dated 14.10.2022; (ii) Issue a writ, order or direction in the nature of Mandamus, 1 2025:UHC:4151-DB commanding/directing the Respondents to consider the candidature of the petitioner, being an OBC-OL candidate, for appointment against the said PH-PD post by applying the principle of horizontal reservation as clarified in the Hon’ble Supreme Court’s judgment in Indra Sawhney v. Union of India, and to grant all consequential benefits thereto.” 4. Mr. Mr. Pankaj Miglani, learned counsel appearing for the Uttarakhand Public Service Commission fairly submits that Section 34 (2) of the Rights of Persons with Disabilities Act, 2016 although provides for the interchange of vacancies amongst physically disabled persons, however, the decision in this regard is to be taken by the State Government and Public Service Commission, as selecting body, has no authority. He further submits that the Commission has to go by the requisition and breakup of vacancies is also given in the requisition. 5. Section 34 (2) of the Rights of Persons with Disabilities Act, 2016 is reproduced below:- “(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.” 6. Mr. B.S. Parihar, learned Standing Counsel for the State submits that although the petitioner has made a representation, it was made to a wrong authority, namely, Uttarakhand Public Service Commission, and if petitioner wants to make a fresh representation, he may be permitted to do so. 7. We, accordingly dispose of the Writ Petition, by permitting the petitioner to approach the Secretary Department of Personnel and Training, Government of Uttarakhand by making a representation. If petitioner makes representation within two weeks from today, claiming interchange of vacancies reserved for physically disabled persons, then the Secretary 2 2025:UHC:4151-DB concerned shall take decision on his representation within six weeks from the date of receipt of such representation. _______________________________ MANOJ KUMAR TIWARI, J. __________________________ ASHISH NAITHANI, J. Dt: 20th May, 2025 Shiksha 3 SHIKSHA BINJOLA Digitally signed by SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b 5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D 7FF0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA Date: 2025.05.21 10:01:58 +05'30'