Patna High Court
Md. Sarwar AliversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
- Bench
- ANSHUMAN
Holding
The petition is dismissed as the commission’s actions are in conformity with Section 34(2) of the RPWD Act, 2016 and the 2021 resolution, and the petitioner has no entitlement to appointment.
Summary
Md. Sarwar Ali, an orthopedically handicapped candidate with 60% disability, applied for the post of Trade Instructor under the handicapped quota in the Bihar Technical Service Commission's advertisement No. 50/2023. He was not selected because his marks (30.7144) were below the cut‑off (35.2400) and the commission cited the vacancy as unfilled. The petitioner claimed that the commission violated Section 34 of the Rights of Persons with Disabilities Act, 2016 and a 2017 government resolution that reserved four seats for the handicapped category. The commission and the State argued that Section 34(2) requires unfilled reserved vacancies to be carried forward to the next recruitment year and, if still unfilled, to be interchanged among categories, a procedure reflected in the 2021 resolution which superseded the 2017 rule. The Court examined the statutory provisions, the 2021 resolution, and a prior judgment (Rajeev Ranjan v. State of Bihar) and held that the commission acted in accordance with the law. Consequently, the petition was dismissed.
Issues considered
- Whether the petitioner is entitled to appointment under the handicapped quota despite not meeting the prescribed cut‑off marks.
- Whether Section 34 of the Rights of Persons with Disabilities Act, 2016 mandates immediate appointment or allows carry‑forward and interchange of unfilled reserved vacancies.
- Whether the 2017 government resolution on interchange of reserved seats remains applicable or has been repealed by the 2021 resolution.
- Whether the court can issue a mandamus directing the commission to appoint the petitioner.
Legislation cited
Subjects
- disability rights
- reservation
- Rights of Persons with Disabilities Act
- Section 34
- recruitment
- handicapped quota
- mandamus
- Bihar Technical Service Commission
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8734 of 2025
======================================================
Md. Sarwar Ali S/o Md. Ali Ahmad, Resident of Walima Manzil, Guzzu Khan
Lane, Nathnagar, Bhagalpur, District- Bhagalpur.
... ... Petitioner/s
Versus
1. The State of Bihar Bihar.
2. The Principal Secretary, Labour Resource Department, Bihar, Patna.
3. The Deputy Secretary, Labour Resource Department, Bihar, Patna.
4. The Director, Directorate of (Employment and Training, Labour Resource
Department, Govt. of Bihar, Patna.
5. Bihar Technical Service Commission, through its Secretary, Patna.
6. The Incharge Secretary, Bihar Technical Service Commission, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Md. Najmul Hodda, Advocate
Ms. Ayushi Chaudhary, Advocate
For the Respondent/s : Mr. Pankaj Kumar, SC-12
Mr. Kamlesh Kishore, AC to SC-12
For the BTSC : Mr. Nikesh Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL ORDER
2 28-04-2026 Heard learned counsel for the petitioner, learned
counsel for the State and learned counsel for the Bihar Technical
Service Commission (hereinafter referred to as ‘Commission’).
2. The present writ petition has been filed for the
following reliefs:-
(A) For issuance of writ of
mandamus or any other appropriate writ
order or direction commanding the
respondents authorities to appoint the
petitioner on the post of "Trade Instructor"
under handicapped category with respect to
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advertisement number 50/2023 (group-13)
published by the Bihar' Technical Service
Commission, Patna as the petitioner is
orthopedically handicapped and 4 seats of
the handicapped has been vacant as yet in
connection with above advertisement and
same has been kept for unreserved category
for subsequent recruitment.
(B) For issuance of a writ of
mandamus or any other appropriate order or
direction restraining the respondent
authorities to not to shift handicapped
reserved 4 seats for subsequent recruitment.
(C) For any other appropriate
relief as the court may deem fit.
3. Learned counsel for the petitioner submits that the
petitioner has applied for the post of Trade Instructor in the
Bihar Technical Service Commission, as notified under
Advertisement No. 50 of 2023 dated 14.09.2023, issued by
respondent no. 5. Counsel further submits that he has applied
under the category of the handicapped quota, as the petitioner is
orthopedically handicapped, having 60 per cent disability.
Counsel further submits that there were five posts under the
handicapped category, one has been filled and the remaining
four were vacant, but the case of the petitioner has not been
considered by the Commission.
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4. Counsel further submits that, at the time of taking
the decision, the Commission has completely ignored and
violated Section 34 of the Rights of Persons with Disabilities
Act, 2016. Counsel further submits that the Government of
Bihar has ignored the resolution published on 12.10.2017,
according to which posts under the handicapped category have
been interchanged, and in that view of the matter, the petitioner
is entitled to appointment under the handicapped category. The
rejection of his candidature is bad in law, therefore, he prays that
the writ petition be allowed and the Commission be directed to
appoint the petitioner under the handicapped category.
5. Learned counsel for the Commission, on the other
hand, submits that the appointment under the handicapped
category has to be guided by the central statute, namely, the
Rights of Persons with Disabilities Act, 2016 (Act No. 49 of
2016) [hereinafter referred to as ‘Act of 2016’], and Section 34
of the Act of 2016 thereof is very clear. He submits that the most
relevant provision for the petitioner is Section 34(2) of the Act
of 2016, according to which, 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
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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. In
this background, learned counsel for the Commission submits
that the central law is very clear on this issue and, in that view
of the matter, the petitioner is not entitled to any relief.
6. Counsel further submits that the petitioner has
obtained 30.7144 marks, whereas the minimum cut-off for the
OH category was 35.2400, and since the petitioner has obtained
lesser marks than the cut-off, he has not been selected.
7. Counsel further submits that the resolution of the
Government of Bihar dated 12.10.2017 was issued, but it has
been clarified, as annexed as Annexure R-5/B, by Clause 9.
Counsel further submits that the said circular was issued vide
Memo No. 962 dated 22.01.2021 (hereinafter referred to as
‘Resolution of 2021’). Counsel further submits that by the
Resolution of 2021, the earlier resolution dated 12.10.2017 has
been modified, therefore, he submits that the relief sought by the
petitioner in light of the earlier resolution dated 12.10.2017 does
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not arise.
8. Upon hearing the parties, it appears to this Court
that, with a view to deciding the issue involved in the present
writ petition, it is necessary to first quote the relevant law.
Section 34 of the Rights of Persons with Disabilities Act, 2016
states as follows:-
34. (1) Every appropriate
Government shall appoint in every
Government establishment, not less than
four per cent. of the total number of
vacancies in the cadre strength in each
group of posts meant to be filled with
persons with benchmark disabilities of
which, one per cent. each shall be reserved
for persons with benchmark disabilities
under clauses (a), (b) and (c) and one per
cent. for persons with benchmark disabilities
under clauses (d) and (e), namely:-
(a) blindness and low vision;
(b) deaf and hard of hearing:
(c) locomotor disability including
cerebral palsy, leprosy cured, dwarfism, acid
attack victims and muscular dystrophy;
(d) autism, intellectual disability,
specific learning disability and mental
illness;
(e) multiple disabilities from
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amongst persons under clauses (a) to (d)
including deaf-blindness in the posts
identified for each disabilities:
Provided that the reservation in
promotion shall be in accordance with such
instructions as are issued by the appropriate
Government from time to time:
Provided further that the
appropriate Government, in consultation
with the Chief Commissioner or the State
Commissioner, as the case may be, may,
having regard to the type of work carried out
in any Government establishment, by
notification and subject to such conditions, if
any, as may be specified in such notifications
exempt any Government establishment from
the provisions of this section.
(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
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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.
(3) The appropriate Government
may, by notification, provide for such
relaxation of upper age limit for employment
of persons with benchmark disability, as it
thinks fit.
9. Further, the resolution issued by the Government of
Bihar, contained in Memo No. 962 dated 22.01.2021, the
relevant clauses are Clause 9, 10 and subsequently Clause 17,
which are as follows:-
“9) ददवयां गजन अदधकार अदधदनयम,
2016 की धारा-34 (2) के आलोक मे जहां कोई
दरदकक दकसी भकीर वरर मे उपयु कक सं ददभरक
ददवयां गजन की गै र-उपलबधका के कारण या कोई
अनय पयारपक कारण से भरी नहीं जा सकेगी ऐसी
दरदकक गै र आरदकक वगर मे कणारंदकक करके हुए
पशचातवकीर भकीर वरर मे vxzf.kr होगी और
पशचातवकीर भकीर वरर मे भी उपयु कक सं ददभरक
ददवयां गजन उपलबध नहीं होका है , को पहले यह
पांच izoxksZ मे से अदला-बदली दारा हो सकेगी
Patna High Court CWJC No.8734 of 2025(2) dt.28-04-2026
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और केवल जब उकक वरर मे भी पद के दलए
ददवयां गजन उपलबध नहीं होका है , को दनयोकका
दकसी ददवयां गजन से दभनन दकसी वयदकक की
दनयु दकक दारा दरदकक को भर सकेगाः
परं कु यदद दकसी सथापन मे दरदककयो
की izd`rh ऐसी है दक ददए गए izoxksZ के
वयदककयो को दनयोदजक नहीं दकया जा सकका को
दरदककयो की समु दचक सरकार के पूवर अनु मोदन से
पांच izoxksZ मे अदला-बदली की जा सकेगी।
(10) ददवयां गजन अदधकार
अदधदनयम, 2016 की धारा-32 मे दनदहक
izko/kkuksa के अनु रप यह दनदे श ददया जाका है दक
राजय सरकार के अधीन उचच शै कदणक सं सथानो
मे कथा ऐसे सभी उचच शै कदणक सं सथानो मे
दजनहे राजय सरकार से सहायका दमली हो,
नामांकन मे ददवयां गो के दलए 5 izfr”kr सथान
आरदकक रहे गे । यह आरकण भी ददवयां गका
आधादरक होगा, जादकगक आधादरक नहीं होगा।
नामांकन हे कु चयदनक ददवयां ग उममीदवार दजस
आरदकक / गै र आरदकक वगर का होगा, उसकी
गणना उसी आरदकक / गै र आरदकक वगर के
दवरद होगी। उचच शै कदणक सं सथानो मे
नामांकन हे कु ददवयां ग दकसे कहा जाये गा कथा
दवदभनन izdkj के ददवयां गो के दलए आरकण की
कया वयवसथा होगी, इस सं बंध मे भारक सरकार
दारा दनगरक ददवयां गजन अदधकार अदधदनयम,
2016 के izko/kkuksa का अनु पालन दकया जाये गा।
(17) ददवयां गजन अदधकार
अदधदनयम, 2016 की धारा-23 (1) के दनदहक
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izko/kkuksa के आलोक मे izR;sd दवभाग / कायारलय
/ सं सथान आदद दारा ददवयां गजनो के दशकायको
के दनवारण हे कु एवं एकद् सं बंधी आरकण की दे ख-
रे ख हे कु दशकायक दनवारण पदादधकारी की
दनयु दकक की जाये गी।"
10. Upon a bare reading of Section 34 of the Act of
2016, the contention made by the petitioner cannot be accepted,
as there is a specific direction that unfilled posts shall be carried
forward to the next recruitment year. After going through the
Resolution of 2021, it appears to be nothing but a replica of
Section 34(2) of the Act of 2016, and in the opinion of this
Court, the Commission has acted completely in accordance with
Section 34(2) of the Act of 2016 read with Clause 9 of the
Resolution of 2021.
11. This Court is also of the view that the resolution
dated 12.10.2017 has now been repealed by the said Resolution
of 2021 mentioned above, therefore, the petitioner cannot claim
any benefit by virtue of the said resolution dated 12.10.2017,
which has already been amended.
12. This Court, upon perusal of the judgment passed
by a co-ordinate Bench of this Court in the case of Rajeev
Ranjan & Ors. v. The State of Bihar & Ors., along with
analogous cases decided on 06.02.2026 in CWJC No. 1373 of
Patna High Court CWJC No.8734 of 2025(2) dt.28-04-2026
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2025, has categorically dealt with the same issue and has been
pleased to hold, in paragraphs 51 to 55, as follows:-
51. If the provisions contained in
2017 Rules are examined qua Section 34 (2)
of 2016 Act, it is found that the Clauses-2
(viii) and (ix) were not in conformity with the
provisions of the Statute. Therefore, the
General Administration Department was
compelled to pass notification in the year
2021 in conformity with the manner of
recruitment to fill up the vacancies reserved
for the persons with disabilities.
52. I have already discussed with
supporting judgments of the Hon'ble
Supreme Court that any recruitment
notification de hors the Statue is ultra vires
to the Statute. The petitioners are claiming
recruitment following 2017 Rules, which is
not in conformity with the declaration of
reservation of vacancies in establishments
meant for persons with disabilities and the
manner of recruitment to fill up such
vacancies. This is the principal reason
followed by the BTSC to fill up the vacancies
reserved for persons with disabilities in the
manner provided in Section 34 of the 2016
Act.
53. The petitioners cannot claim
their right of recruitment following 2017
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Rules, when the Rule is ultra vires to the
Statute.
54. It is needless to say that 2016
Act is the source of the right of persons with
disabilities to get the reservation in jobs in
government establishments. If a Rule is
framed by the Government by a process of
delegated legislation and it is found that the
Rule is not in conformity with the statutory
provisions, the executive authority is always
empowered to publish subsequent rule in
conformity with the Act. This Act on the part
of the executive authority cannot be
challenged on the ground of altering the rule
of the game after the game is started
because the rule of the game also derives its
authority from the Statute. If statutory
indictment is corrected by a subsequent
notification after initiation of selection
process, the same cannot be called into
question on the ground that executive
authority has been trying to change the rule
of the game.
55. For the reasons stated above I
do not find any merit in these batch of writ
petitions.
13. In light of the submissions and reasoning
mentioned above, this Court is of the firm view that, upon
interpreting Section 34(2) of the Act of 2016 read with Clause 9
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of the Resolution of 2021 mentioned above, as well as the
judgment and reasoning assigned in the case of Rajeev Ranjan
(Supra), no case is made out for the petitioner.
14. Accordingly, the present writ petition stands
dismissed.
(Dr. Anshuman, J.)
Aman Kumar/-
U
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