2025:HHC:24750 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2860 of 2024 Decided on: 29th July, 2025 ------------------------------------------------------------------------------------- Ajay Kumar …..Petitioner Versus Executive Director (Personnel), HPSEBL and others .....Respondents ------------------------------------------------------------------------------------- Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting?1 Yes. For the Petitioner: Mr. Diwan Singh Negi and Mr. Devi Singh Verma, Advocates. For the Respondents: Ms. Vandana Misra, Advocate. ------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge Respondent-Board was exempted from applying the Rights of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 2016 for providing reservation to the disabled persons for filling up certain specific categories of posts including the post of T-Mate involved in the case. Petitioner is an Ex-Serviceman, who suffered 40% disability while discharging his duties in Armed Forces. As per the applicable Rules, 40% disability suffered by him was 1Whether reporters of print and electronic media may be allowed to see the order? Yes. 2 2025:HHC:24750 rounded off to 50% to enable him to earn disability pension. After obtaining discharge from the Armed Forces, he enrolled with the Ex-Servicemen Cell, Directorate of Sainik Welfare, Himachal Pradesh for the purpose of civil employment. The Ex-Servicemen Cell nominated the petitioner for the post of T-Mate advertised by the respondent-State Electricity Board. The petitioner participated in the selection process and was eventually appointed as T-Mate by the respondents. After more than a year and four months of his appointment, the respondent- Board terminated his services on the ground that he suffers from 40% permanent disability rounded off to 50% and the post in question had not been reserved for persons with disabilities. Feeling aggrieved, petitioner has instituted this writ petition. 2. Heard learned counsel for the parties and considered the case file. 3. The Case:- 3(i). Respondent-Board issued an advertisement on 04.06.2020, inter alia, inviting applications for filling up 1500 posts of T-Mates, out of which 130 posts were reserved for Ex-Serviceman (UR) category. In case of Ex-Servicemen, the recruitment was to be undertaken by 3 2025:HHC:24750 the Ex-Servicemen Employment Cell. General Instruction No.20 of the advertisement provided that no recruitment to the posts would be made in the share of Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995 against 4% reservation as exemption had already been obtained for disabled persons in view of nature of duties under Section 33 of the Act. The clause reads as under:- “20. No such recruitment of above posts will be made in the share of Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995 against 4% reservation, however exemption has already been obtained for disabled persons in the nature of duties under Section-33 from the Pr. Secretary (Power) to the Govt. of H.P.” 3(ii). Respondent-Board sent a requisition to the Directorate of Sainik Welfare, H.P. Ex-Servicemen Employment Cell on 01.02.2022, inter alia, for nominating Ex-Servicemen for filling in 130 posts of T-Mate from Ex-Servicemen (General) category. 3(iii). On the basis of above requisition, Ex- Servicemen Employment Cell nominated the Ex-Servicemen for the post of T-Mate vide office letter dated nil, August, 2022. Name of the petitioner figured at Sr. No.29 of the list. Respondent-Board called the petitioner for screening and verification of his documents on 28.09.2022 under office 4 2025:HHC:24750 letter dated 13.09.2022. In terms of the office letter, the petitioner was also to produce his discharge book issued from Military Service at the time of screening of documents. 3(iv). The petitioner accordingly appeared alongwith all requisitioned documents before the screening committee on 28.09.2022. The documents were verified and the screening committee accordingly prepared its report at Annexure PR-1. Petitioner’s name appeared at Sr. No.29 of the list with 40% disability mentioned after the last column against his name. 3(v). Respondents issued appointment order to the petitioner on 12.10.2022. Petitioner accordingly joined the service as T-Mate on contract basis on 14.10.2022. He performed his duties as such with no complaint from the respondents. 3(vi). On 15.07.2023, i.e. after about nine months from the date of his appointment, the respondents issued a show cause notice to the petitioner stating therein that the petitioner had submitted medical record at the time of screening of his documents on 28.09.2022. In that medical record, the disability suffered by him has been mentioned as 40% rounded off to 50%. The petitioner, thus, was not eligible for appointment as vide notification dated 5 2025:HHC:24750 22.06.2020 issued by the Government of Himachal Pradesh and adopted by the respondent-Board, only such persons would be eligible for reservation in services/posts, who suffer from not less than 40% of the relevant disability, whereas, the petitioner has been declared to be disabled to the extent of 40% rounded off to 50%. The notice also mentioned that petitioner being physically disabled from 40% to 50%, could not have applied for the post in the share of Ex-Servicemen. The petitioner was directed to explain his position. 3(vii). Petitioner furnished his reply to the show cause notice on 18.06.2023 stating that he had produced the relevant documents of his disability at the time of screening of documents, wherein, his disability has been mentioned as 40% rounded off to 50% for the purpose of pensionary benefits. That the extent of disability is rounded off for the discharged army personnel in order to grant him maximum possible benefits of pension. The petitioner further stated that he is suffering from 40% disability and thus, fulfills the minimum degree of disability provided in the notification dated 22.06.2020. That there are many other persons with less than 40% disability rounded off to 50%, who have been nominated by the Ex-Servicemen Cell and appointed under 6 2025:HHC:24750 the same advertisement by the respondents against the Ex-Servicemen Disabled quota. Petitioner requested for dropping the proceedings. 3(viii). Respondents considered petitioner’s reply and passed an order on 23.02.2024, holding the petitioner to be an ineligible person to be retained in service and terminated his service with immediate effect. 4. Consideration:- For the respondent-Board, it has been contended that petitioner was fully aware of the fact that there was no reservation in the advertisement for the physically disabled category. The petitioner was not eligible to apply under the advertisement, he being a physically disabled person. The petitioner misled the respondents. He did not disclose his status of being a physically disabled person, which led to issuance of appointment order in his favour. The respondents were not aware about petitioner suffering from physical disability to the extent of 40% rounded off to 50% at the time of considering his case for appointment. The related and necessary documents were not available with the respondents. These documents came to the notice of the respondents only after a complaint with regard to petitioner’s appointment was lodged by one Sh. 7 2025:HHC:24750 Tashi Zangpo, which led to issuance of show cause notice and subsequent termination of petitioner’s service. Apart from above, it was contended that petitioner was not entitled to apply as a General category Ex-serviceman since the respondent-Board had already taken exemption from the State Government from providing reservation to the disabled categories under Sections 33 and 34 of the PwD Act. This exemption was taken keeping in view the nature of sensitive duties a T-Mate is to perform. Therefore, persons with physical disabilities could not have been appointed to the post. Despite being aware of all these facts, the petitioner had applied under the Ex-Servicemen (UR) category, even though he was a physically disabled person and the post in question was not reserved for physically disabled persons. The Board defended its action of terminating petitioner’s service, he being a physically challenged man. 4(i). There appears to be an issue about the extent of disability suffered by the petitioner. It will be appropriate to first discuss this aspect. At pages 159 to 168 of the paper-book, the petitioner has placed on record documents pertaining to practice of rounding off of disability professed in Armed 8 2025:HHC:24750 Forces. At page 159 of the paper-book is a report, as per which, the petitioner suffered a severe injury on his right shoulder during the course of his duties on 25.03.2019. The Attributability Certificate issued on 18.09.2019 declares the injury ‘attributable to Military Service in accordance with Rule 12 of the Entitlement Rules to Casualty Pensioner Awards to Armed Forces Personnel, 1982’. The Defence Services Regulations, Pension Regulations for the Army have been issued by the Government of India, Ministry of Defence. Regulation No.53 thereof under the heading ‘Disability Element for disability at the time of discharge/retirement’ provides as under:- “53. (a) An individual released/retired/ discharged on completion of term of engagement or on completion of service limits or on attaining the prescribed age (irrespective of his period of engagement), if found suffering from a disability attributable to or aggravated by military service and so recorded by Release Medical Board, may be granted disability element in addition to service pension or service gratuity from the date of retirement/discharge, if the accepted degree of disability is assessed at 20 percent or more. (b) The disability element for 100% disability shall be at the rate laid down in Regulation 98 (b) below. For disabilities less than 100% but not less than 20%, the above rates shall be proportionately reduced. Provisions contained in Regulation 98(c) shall not be applicable for computing disability element………...” Regulation No.94 under the heading ‘Amount of Disability Pension’ provides for rounding off of disability to 9 2025:HHC:24750 50% in case the percentage of disability element finally accepted is less than 50. Relevant provision reads as under:- “94. The amount of disability pension consisting of service element and disability element shall be as follow:- (a) & (b) xxx xxx xxx (c) The extent of disability or functional incapacity in shall be determined in the following manner for the purpose of computing the disability element:- Percentage of disability element as finally accepted Percentage to be reckoned for computing disability element Less than 50 50 Between 50 and 75 75 Between 76 and 100 100” Similar provision for rounding off and broad banding of disability for the purpose of computing disability element has been incorporated in the office circular issued on 27.12.2023 by the Government of India, Ministry of Defence, Department of Ex-Servicemen Welfare. As per this office circular, disability less than 50%, if assessed by invalidating Medical Board, is to be reckoned as 50% for computing the disability element. Here it would be in place to take note of Union of India & Ors. Versus Wing Commander S.P. Rathore2, where Hon’ble Apex Court had considered the practice of rounding off of disabilities less 2 Civil Appeal No.10870 of 2018, decided by the Hon’ble Supreme Court on 11.12.2019 10 2025:HHC:24750 than 20% to 50%, suffered by officials of Armed Forces. It was held as under:- “6. Para 8.2 falls under the heading of Disability Element on Disability/Discharge. A bare reading of Para 8.2 shows that where the disability is more than 20% but less than 80%, the rates prescribed earlier would be proportionately reduced. Again, it is made clear that no disability element shall be payable for disabilities less than 20%. Para 8.2 also provides that the provisions contained in Para 7.2 shall not be applicable for computing disability element in such cases. Para 7.2 which deals with officials of Armed Forces invalided out under circumstances mentioned in Para 4.1 would be entitled to rounding of the disability. Therefore, if the disability was less than 50%, it would be rounded off to 50%. If the disability was between 50 and 75% it would be rounded off to 75%. If the disability was between 76 and 100% it would be rounded off to 100%.” It is in the above background that Column No.24 of petitioner’s discharge certificate from Army reflects petitioner’s actual disability as 40%, rounded off to 50%. Thus, it has to be held that the petitioner is suffering from 40% permanent locomotor disability, which was though rounded off to 50% for the purpose of disability pension. 4(ii). Respondents’ contention that petitioner had not apprised them about his disability at the time of selection process is factually incorrect. In fact, the show cause notice issued by the respondents to the petitioner on 15.07.2023 acknowledges the fact that the petitioner had produced his medical record at the time of screening of documents on 28.09.2022, wherein, his disability had been 11 2025:HHC:24750 mentioned as 40% rounded off to 50%. Portion from the show cause notice, relevant to the context, reads as under:- “…………….. as per medical record submitted by you at the time of screening of your documents on 28/9/2022, in the medical record disability has been mentioned as 40% round off 50% and thus you were not eligible for the appointment and your services may be terminated with immediate effect in pursuance to Government of H.P. vide its notification 22nd June, 2020, which was adopted by the HPSEBL whereby clause-8 Degree of Disability for reservation states that only such persons would be eligible for reservation in services/posts who suffer from not less than 40% of the relevant disability, whereas you have been declared 40% round off 50% disabled. Hence before taking any action in this matter you are hereby intimated to explain your position that when you were well aware that you are physically disabled for around 40% to 50%, on what ground you applied for the job of T Mate in the share of Ex-Serviceman quota and later accepted the same by submitting your joining on dated 14/10/2022? Your reply, explaining your position must reach in the office of the undersigned within 15 days of receipt of this letter, otherwise action as deemed fit shall be initiated against you and your services in HPSEB Ltd may be terminated.” Respondents were very well aware at the time of selecting the petitioner that he is a disabled person having permanent disability to the extent of 40% caused on account of injuries to his right shoulder suffered during the course of discharge of duties in Armed Forces. The Screening Committee of the respondents while verifying the documents of the candidates including that of the petitioner had duly noted the disability suffered by the candidates. The report prepared by the Screening Committee (Annexure 12 2025:HHC:24750 PR-1) reflects that several candidates, who appeared before the Screening Committee, were suffering from physical disabilities of varying nature and extent. Against the name of the petitioner also, 40% disability has been marked. The document has not been disputed by the respondents. It, therefore, does not lie with the respondents to contend that they were not aware about petitioner suffering from physical disability to the extent of 40% rounded off to 50% while selecting him for the post. In fact, it is the case of the petitioner, which is not disputed by the respondent-Board, that apart from the petitioner, there are several other Ex-Servicemen suffering from physical disability, namely S/Sh. Rakesh Kumar (suffering from 60% disability), Ajay Kumar (suffering from 36% disability, rounded off to 50%), Rishu Kumar (suffering from 36% disability, rounded off to 50%) and another Rakesh Kumar (suffering from 40% disability, rounded off to 50%), who were appointed as T-Mate under the same order by which the petitioner was appointed and are still serving with the respondents. Though it has been urged for the respondents that they reserve their right to take appropriate action against the above four Ex-Servicemen as well. Be that as it may. Petitioner had not concealed his 13 2025:HHC:24750 disability from the respondents. The respondents were very well aware about the nature and extent of petitioner’s disability while selecting & appointing him as T-Mate. 4(iii). A fundamental issue raised by the respondent- Board is that the petitioner being physically disabled to the extent of 40% rounded off to 50%, was ineligible to even apply for the post in question. According to the respondent-Board, it had taken exemption from the State Government from reserving 3-4% posts for the persons with disabilities under the PwD Act, 1995/2016, therefore, physically disabled persons suffering from disability to the extent of 40% or above were ineligible to apply for the post. In my considered view, merely for the reason that petitioner was suffering from 40% disability would not make him ineligible to apply for the post in question. This is for the following reasons:- 4(iii)(a). Section 2(t) of the RPwD Act defines ‘Person with Disability’ as “a person suffering from not less than forty per cent of any disability as certified by a medical authority”. Petitioner suffering from 40% disability falls within the definition. Section 32 of the Act provides for 14 2025:HHC:24750 identification of posts to be reserved for physically disabled persons as under:- “32. Identification of posts which can be reserved for persons with disabilities.- Appropriate Governments shall- (a) identify posts, in the establishments, which can be reserved for the persons with disability; (b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.” Reservation not less than 3-4% of total number of vacancies in a cadre strength for Persons with Benchmark Disabilities is provided in Section 33 as under:- “33. Reservation of posts.- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from- (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” 4(iii)(b). The respondent-Board had admittedly taken exemption from the State Government from providing reservation to the persons with physical disabilities while filling up the posts of T-Mate, but this exemption cannot be construed as if a physically challenged person was ineligible 15 2025:HHC:24750 to apply and participate in the selection process undertaken by the respondent-Board for filling up the posts of T-Mate Ex-Servicemen (UR) category. Petitioner had not applied as a physically disabled person. He had applied for the post reserved for Ex-Servicemen (UR) category. The respondent- Board was to consider the candidature of the petitioner and his suitability for the post as an applicant under the Ex- Servicemen (UR) category. Merely because the petitioner had 40% permanent physical disability, would not snatch from him his right to apply for the post. It was for the respondent-Board to consider petitioner’s suitability for the post by conducting medical board/disability assessment examination etc. to determine petitioner’s suitability for the post. A person with 39% disability would not have been able to even apply for the post in case the same had been reserved for physically disabled Ex-Serviceman as the extent of his disability would be below the benchmark disability. Petitioner’s was a borderline case with 40% disability. He could not have applied as a physically disabled person since the post for that category was not reserved in the selection process, but to contend that the petitioner was to be denied the opportunity for even applying under Ex-Servicemen (UR) category, would not 16 2025:HHC:24750 only be a far-fetched argument, but against the spirit of enactment, which is to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. 4(iii)(c). 4(iii)(c). Some recent decisions of the Hon’ble Apex Court, which impress upon providing equal opportunities to physically challenged persons, are as follows:- (a). Omkar Ramchandra Gond Versus The Union of India & Ors.3 was a case where it was held that mere existence of benchmark disability will not disqualify a candidate from pursuing MBBS course. The appellant therein was suffering from 44% physical disability of speech and language. The question before the Hon’ble Apex Court was “merely because the disability is quantified at 44%/45%, should the appellant be disqualified to obtain admission under the PwD Category for the MBBS Course”. While considering the case, Hon’ble Apex Court observed that ‘while people with less than 40% disability are not eligible for PwD quota, though they can pursue the medical course, persons with equal to or more than 40% disability are not eligible for the medical course. Read literally, while persons with speech and language disability with less than 3 Civil Appeal No.10611 of 2024, decided on 15.10.2024 17 2025:HHC:24750 40% are not entitled to the reserved quota, if they have 40% or more disability they are rendered ineligible for the medical course’. Adopting a purposive interpretation of the RPwD Act, Hon’ble Apex Court was of the view that merely because of the quantification of disability for speech and language at 40% or above, a candidate does not forfeit his right to stake claim for admission to a course of his choice. Hon’ble Apex Court also emphasized that RPwD Act was enacted to give effect to the United Nations Convention on Rights of Persons with Disabilities with the objective of granting persons with disabilities full and effective participation and inclusion in society, grant them equal opportunity and to show respect for their inherent dignity, individual autonomy including the freedom to make their own choices. Disabilities Assessment Boards are not monotonous automations to just look at the quantified benchmark disability as set out in the certificate of disability and cast aside the candidate. Such an approach would be antithetical to Articles 14 and 21 of the Constitution and all canons of justice, equity and good conscience. It would also defeat the salutary objectives of the RPwD Act. The Disabilities Assessment Boards are obliged to examine the further question as to whether the 18 2025:HHC:24750 candidate in the opinion of the experts in the field is eligible to pursue the course or in other words, whether the disability will or will not come in the way of the candidate pursuing the course in question. Relevant observations from the decision are as under:- “Question before the Court: 15. Merely because the disability is quantified at 44%/45%, should the appellant be disqualified to obtain admission under the PwD Category for the MBBS Course? 20. The Appendix H-I extracted above provides a peculiar scenario. While people with less than 40% disability are not eligible for PwD quota, though they can pursue the Medical Course, persons with equal to or more than 40% disability are not eligible for the medical course. Read literally, while persons with speech and language disability with less than 40% are not entitled to the reserved quota, if they have 40% or more disability they are rendered ineligible for the medical course. The column under the guidelines “Eligible for Medical Course, Eligible for PwD quota” is left blank reinforcing the absurd position that under this category no one is rendered eligible for the 5% reserved quota. Certainly that cannot be the legal position. 21. In any event, adopting a purposive interpretation of the RPwD Act and, more particularly, of the provisions extracted hereinabove, we are of the opinion that merely because of the quantification of the disability for speech and language at 40% or above, a candidate does not forfeit his right to stake a claim for admission to course of their choice. We say so for the reason that any such interpretation would render the clause in Appendix H-1 under the Graduate Medical Education Regulations of the Medical Council of India (precursor of the National Medical Commission) dated 13.05.2019, over broad for treating unequals equally. 22. In State of Gujarat and Another vs. Ambica Mills Ltd., Ahmedabad and Another, (1974) 4 SCC 656, it was held that an over-inclusive classification includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well. Among those with disability percentage of 40% or above in the category of speech and language disabilities, 19 2025:HHC:24750 there will be individuals like the appellant to whom the disability may not come in the way of pursuing the particular educational course in question. Lumping together persons with benchmark disabilities who can pursue the educational course with those with the same disabilities who, in the opinion of the Medical Board, cannot pursue the course would tantamount to over inclusion. This is precisely what Article 14 frowns upon. 25. A Constitutional Court examining the plea of discrimination is mandated to consider whether real equality exists. This Court is not to be carried away by a projection of facial equality. Viewed at first blush, the regulation providing that all persons with 40% or more disability are uniformly barred from pursuing the medical course in the category of speech and language disability, may appear non-discriminatory. But here too, appearances can be deceptive. The Court of law is obliged to probe as to whether beneath the veneer of equality there is any invidious breach of Article 14. 43. It should be borne in mind that the RPwD Act which was enacted to give effect to the United Nations Convention on Rights of Persons with Disabilities - was with the objective of granting persons with disabilities full and effective participation and inclusion in society, grant them equal opportunity and to show respect for their inherent dignity, individual autonomy including the freedom to make their own choices. 46. Disabilities Assessment Boards are not monotonous automations to just look at the quantified benchmark disability as set out in the certificate of disability and cast aside the candidate. Such an approach would be antithetical to Article 14 and Article 21 and all canons of justice, equity and good conscience. It will also defeat the salutary objectives of the RPwD Act. The Disabilities Assessment Boards are obliged to examine the further question as to whether the candidate in the opinion of the experts in the field is eligible to pursue the course or in other words, whether the disability will or will not come in the way of the candidate pursuing the course in question.” It was held that a person does not become ineligible for the medical course merely because quantification of his disability percentage exceeds 20 2025:HHC:24750 prescribed limit. Hon’ble Apex Court concluded that quantified disability per se will not disentitle a candidate with benchmark disability from being considered for admission to educational institutions. The candidate will be eligible, if the Disability Assessment Board opines that notwithstanding the quantified disability, the candidate can pursue the course. The Disability Assessment Boards assessing the candidates should positively record whether the disability of the candidate will or will not come in the way of the candidate pursuing the course in question. The conclusions drawn by the Hon’ble Apex Court are as under:- “53. For the reasons set out hereinabove, (i) We hold that quantified disability per se will not disentitle a candidate with benchmark disability from being considered for admission to educational institutions. The candidate will be eligible, if the Disability Assessment Board opines that notwithstanding the quantified disability the candidate can pursue the course in question. The NMC regulations in the notification of 13.05.2019 read with the Appendix H-1 should, pending the re- formulation by NMC, be read in the light of the holdings in this judgment. (ii) The Disability Assessment Boards assessing the candidates should positively record whether the disability of the candidate will or will not come in the way of the candidate pursuing the course in question. The Disability Assessment Boards should state reasons in the event of the Disability Assessment Boards concluding that the candidate is not eligible for pursuing the course. (iii) The Disability Assessment Boards will, pending formulation of appropriate regulations by the NMC, 21 2025:HHC:24750 pursuant to the communication of 25.01.2024 by the Ministry of Social Justice and Empowerment, keep in mind the salutary points mentioned in the said communication while forming their opinion. (iv) Pending creation of the appellate body, we further direct that such decisions of the Disability Assessment Boards which give a negative opinion for the candidate will be amenable to challenge in judicial review proceedings. The Court seized of the matter in the judicial review proceedings shall refer the case of the candidate to any premier medical institute having the facility, for an independent opinion and relief to the candidate will be granted or denied based on the opinion of the said medical institution to which the High Court had referred the matter. (v) We have already, pursuant to our order dated 18.09.2024, in view of the favorable report dated 13.09.2024 of the Maulana Azad Medical College, granted admission to the appellant. We confirm the admission and direct the concerned authorities to treat the admission as a valid admission in the eye of law.” (b). In Re: Recruitment of Visually Impaired in Judicial Services4, one of the issues that arose for consideration was whether the visually impaired candidates can be said to be ‘not suitable’ for judicial service. After discussing the existing constitutional framework and the international disability jurisprudence, Hon’ble Apex Court dwelled on the subject of indirect discrimination to the persons with physical disabilities. It was held that ‘rights based approach necessitates that Persons with Disabilities must not face any discrimination in their pursuit of judicial 4 Suo Moto Writ Petition (Civil) No.2 of 2024, decided by the Hon’ble Apex Court alongwith connected matters on 03.03.2025 22 2025:HHC:24750 service opportunities. There must be affirmative action on behalf of the State to provide for an inclusive framework. Right against disability-based discrimination recognized in the RPwD Act, 2016 should be recognized as a fundamental right, thereby ensuring that no candidate is denied consideration solely on account of his disability. Principle of reasonable accommodation as enshrined in international conventions, established jurisprudence and the RPwD Act, 2016 mandate that accommodations be provided to Persons with Disabilities as a pre-requisite to assessing their eligibility. Any indirect discrimination that results in the exclusion of Persons with Disabilities, whether through rigid cut-offs or procedural barriers, must be interfered with in order to uphold substantive equality. Commitment to ensure equal opportunity necessitates a structured and inclusive approach, where merit is evaluated with due regard to the reasonable accommodations required, reflecting principles of fairness and justice. Relevant portion of the conclusion drawn by the Hon’ble Supreme Court is as under:- “67. The overall analysis would demonstrate that a rights- based approach necessitates that PwDs must not face any discrimination in their pursuit of judicial service opportunities, and instead, there must be affirmative action on behalf of the State to provide an inclusive framework. Now, it is high time that we view the right 23 2025:HHC:24750 against disability-based discrimination, as recognized in the RPwD Act 2016, of the same stature as a fundamental right, thereby ensuring that no candidate is denied consideration solely on account of their disability. Further, as extensively discussed, the principle of reasonable accommodation, as enshrined in international conventions, established jurisprudence, and the RPwD Act, 2016, mandate that accommodations be provided to PwDs as a prerequisite to assessing their eligibility. In the light of the above, any indirect discrimination that results in the exclusion of PwDs, whether through rigid cut-offs or procedural barriers, must be interfered with in order to uphold substantive equality. The commitment to ensuring equal opportunity necessitates a structured and inclusive approach, where merit is evaluated with due regard to the reasonable accommodations required, thereby fostering judicial appointments that truly reflects the principles of fairness and justice. 67.1. Thus, after considering the pleadings, submissions of the learned counsel appearing for all the parties, as well as the legal positions and case laws, we conclude as follows: (i) Visually impaired candidates cannot be said to be ‘not suitable’ for judicial service and they are eligible to participate in selection for posts in judicial service. (ii) to (v) xxx xxx xxx (vi) For the purpose of rights and entitlements of persons with disabilities, particularly in employment, and more specifically in respect of the issues covered in this judgment, there can be no distinction between Persons with Disabilities (PwD) and Persons with Benchmark Disabilities (PwBD).” 4(iii)(d). In the instant case, both sides have relied upon an office circular dated 22.06.2020, issued by the Government of Himachal Pradesh, Department of Personnel on the subject ‘Reservation for the Persons with benchmark Disabilities’. For the respondent-Board, reliance has been placed upon following Clause 8 thereof, providing that only 24 2025:HHC:24750 such persons would be eligible for reservation in services/posts, who suffer from not less than 40 per cent of the relevant disability:- “8. Degree of Disability for Reservation:- Only such persons would be eligible for reservation services/posts who suffer from not less than 40 per cent of the relevant disability. A person who wants to avail benefit of reservation will have to submit a certificate of disability issued by a Competent Authority. Such certificate in the event of selection of such persons for any post, will be subject to such verification/re-verification as may be decided by the competent authority. At the time of initial appointment against a vacancy reserved for persons with benchmark disabilities, the appointing authority shall ensure that the candidate is eligible to get the benefit of reservation.” As has been discussed above, neither the respondent-Board had reserved any post of T-Mate for Persons with physical disabilities nor the petitioner-a physically challenged person had applied as a person with physical disability, though he had not concealed the fact that he was in fact a person suffering from 40% disability, rounded off to 50% for the purpose of him getting disability pension from Army. The petitioner had applied for the post of T-Mate under Ex-Serviceman (UR) category. In that background, Clause 6 of the office circular assumes significance, which provides for appointment of physically disabled persons against unreserved vacancy. The clause reads as under:- 25 2025:HHC:24750 “6. Appointment against unreserved vacancies: In the posts which are identified suitable for persons with disabilities, a person with disability cannot be denied the right to compete for appointment against an unreserved vacancy. Thus, a person with disability can be appointed against an unreserved vacancy, provided the post is identified suitable for persons with disabilities of the relevant category. The provision of identification of posts does not in any way debar or preclude a person with benchmark disabilities from applying and competing for any unreserved post subject to his/her eligibility and clearing the written test/interview successfully, without any relaxation.” As per the above clause, a person with disability cannot be denied the right to compete for appointment against an unreserved vacancy. A person with disability can be appointed against an unreserved vacancy, provided the post is identified suitable for persons with disabilities of the relevant category. The clause further goes on to state that provision of identification of posts does not in any way debar or preclude a person with benchmark disabilities from applying and competing for any unreserved post subject to his/her eligibility and clearing the written test/interview successfully without any relaxation. General Instruction No.20 of the advertisement under which petitioner participated in the selection process is only a reiteration about the respondent-Board having been exempted from reserving any post for physically challenged persons. The said exemption does not empower the 26 2025:HHC:24750 respondent-Board to deny the right of equal opportunities and participation to persons with physical disabilities. In view of RPwD Act, its aims & objectives, the office circular dated 22.06.2020 and the ratio of law laid down by the Hon’ble Apex Court, it has to be held that there is no bar upon a person with disability for applying and competing for any unreserved post. There cannot be any denial of consideration of his case solely on the ground of his disability, though suitability of the candidate for the post is required to be determined, ascertained and examined by the concerned authority, i.e. respondents herein. Any contrary interpretation would negate the concept of equal opportunity to persons with disabilities enshrined in the RPwD Act and the Directive Principles of the Constitution. 4(iv). Post petitioner’s selection and appointment In the instant case, respondents were aware at the time of selecting the petitioner that he was suffering from 40% permanent locomotor disability (shoulder). It is not in dispute that in spite of petitioner’s suffering from 40% permanent disability, he was appointed as T-Mate on 12.10.2022. He continued to discharge his duties for about a year and four months without any complaint against performance of his duties from the respondents. Services of 27 2025:HHC:24750 the petitioner were terminated by the respondents on 23.02.2024 not on ground of inefficiency etc., but for his suffering from 40% physical disability. Ideally the respondents should have constituted a Medical/Disability Assessment Board to ascertain as to whether the disability suffered by the petitioner would come in his way of discharging the duties. This course was not resorted to by the respondents either at the time of his selection or anytime thereafter. Petitioner was appointed and he continued to discharge his duties for one year and four months. Assuming post petitioner’s appointment, the respondents entertained some doubts about petitioner’s capability in performing his duties as T-Mate on account of the disability suffered by him, the appropriate course in the given facts would have been to constitute a Medical/Disability Assessment Board, however, this course was not adopted. Straightway, the services of the petitioner were terminated after calling reply to the show cause notice issued to him. Petitioner was not suffering from such kind of disability, viz. blindness etc., which could have been straightway called as an impediment in discharge of his duties. He was suffering from 40% disability in relation to his right shoulder. Whether such disability would cause 28 2025:HHC:24750 hurdles in discharge of his duties as T-Mate, should have been ascertained, that too, when the petitioner had already rendered satisfactory service as T-Mate for over a year and four months. Mere sanction of exemption from reserving posts for persons with disabilities does not make the petitioner- an Ex-Serviceman suffering benchmark disability (40%) ineligible to apply for the post advertised for Ex-Serviceman (UR). Respondents very well knew about nature of petitioner’s disability and the extent of its quantification at the time of his selection & appointment. Petitioner has thereafter worked to the satisfaction of the respondents. Respondents’ terminating petitioner’s services only in view of his disability is an unconstitutional act, which snatches his fundamental right of equal opportunities and participation encompassed in RPwD Act. 5. For all the foregoing reasons, this writ petition is allowed. Impugned order dated 23.02.2024 (Annexure P-8), terminating petitioner’s services, is quashed and set aside. The respondents are directed to reinstate the petitioner in service as T-Mate forthwith with all consequential service benefits including seniority, regularization, promotion and monetary. It shall, however, remain open for the 29 2025:HHC:24750 respondents to constitute a Medical/Disability Assessment Board to adjudge the suitability of the petitioner for the post in question and proceed on that basis. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any. Jyotsna Rewal Dua July 29, 2025 Judge Mukesh