ORDER

Hon’ble Mr. Manish Garg, Member (J):

The brief facts of the case as stated by the learned counsel for the applicant are that the applicant is a physically handicapped person, who is suffering from “Mytonic Dystrophy” (covered under “Muscular Weakness), which is mentioned as one of the benchmark physical disabilities under the Rights of Persons with Disabilities Act, 2016.

2. In pursuance of a notification dated 03.12.2019 issued by the Staff Selection Commission (SSC) inviting applications for “Combined Higher Secondary (10+2) Level Examination, 2019 for recruitment to the posts of LDC/Junior Secretariat Assistant, Postal Assistant/Sorting Assistant and Data Entry Operators for various Ministries/Department/Offices of the Government of India, the applicant applied for the post of Postal Assistant/Sorting Assistant under the PwD category. A total number of 55 posts were reserved for Orthopedically Handicapped (OH) candidates, out of which 36 posts were reserved for postal Assistant/Sorting Assistant.

3. The examination was of three tier, i.e., Computer Based Examination (Tier-I), Descriptive Paper (Tier-II) and Skill Test (Tier-III). The applicant secured 145.

35618 and 58 marks in Tier-I and Tier-II of the examination, respectively. He was exempted from Tier-III of the examination in terms of Clause 13.9.7.7 of the notification dated 03.12.2019 issued by the SSC.

4. The Department of Empowerment of Persons with Disabilities, M/o Social Justice and Empowerment, Government of India issued a notification dated 04.01.2021 whereby Muscular Weakness (MW) has been subsequently removed from the list of benchmark physical disabilities eligible for reservation against the posts of Postal Assistant/Sorting Assistant.

5. Learned counsel for the applicant contends that it is nowhere mentioned in the notification dated 04.01.2021 that the same would be applicable retrospectively. He further submits that the SSC has issued a letter dated 11.03.2022 to all the Regional Directors/Dy. Regional Directors, SSC, informing that SSC has decided that suitability of posts under CHSLE-2019 for various disabilities and categories under the Right of Persons with Disabilities, Act, 2016 may be determined in the light of notification dated 04.01.2021. He further states that in a recent advertisement dated 25.10.2021 issued by the office of Chief Postmaster General, Maharashtra Circle, Mumbai, Department of Posts, India for the posts of Postal Assistant/Sorting Assistant, Muscular Weakness (MW) has been recognized as benchmark physical disabilities for reservation under the PwD category and therefore, while candidates who have been directly recruited by the Postal Department are getting the benefit of reservation under the PwD Category for Muscular Weakness (MW), the candidates recruited through SSC are being deprived of the said benefit. Learned counsel for the applicant argues that the said action of the respondents is patently illegal, arbitrary and contrary to the law as the suitability of posts under the Combined Higher Secondary (10+2) Level Examination, 2019 for various disabilities and categories under the Right of Persons with Disabilities, 2016 is to be decided on the basis of Government policy prevailing on the date of issuance of the said notification and any subsequent change in the Government Policy can be made applicable only prospectively.

6. Though the applicant had obtained more marks than the cut off marks and was also called for document verification, however, based on the aforesaid notification dated 04.01.2021 and 11.03.2022, he was not allowed to fill his preference for the post in question, learned counsel for the applicant argues. Being aggrieved by the same, he made a representation to the Chairman, SSC on 27.05.2022, but to no avail.

7. Agitating his grievance in the present OA filed under Section – 19 of the Administrative Tribunals Act, 1