PwBD reservation in unreserved posts turns on a single question, which is whether the candidate needed a relaxation to get through. A person with a benchmark disability who has cleared the general cut-off unaided is counted against an unreserved vacancy, which leaves the four per cent quota open for somebody else.
In an order passed in April 2026 the Supreme Court directed every State and Union Territory to implement the policy of upward movement for persons with benchmark disabilities, under which a candidate who has cleared the general cut-off on merit is adjusted against an unreserved vacancy rather than against the four per cent quota. The same order recorded the Union’s confirmation, given through the Department of Personnel and Training, that a scribe or compensatory time is not a relaxed standard while a relaxation in cut-off marks, age or attempts is. Weeks earlier a different Bench had decided an appeal from Calcutta in which it was held that an unreserved post carrying a disability reservation stays open to every social category, merit being the only thing that separates them.
This article sets out how PwBD reservation in unreserved posts works after the three 2026 rulings.
Everything below turns on two questions: what the candidate gets counted against, and whether any concession was applied along the way. Picture a state transmission utility which has advertised thirty junior engineer posts, one of them an unreserved post carrying a low-vision reservation. A candidate with low vision on the OBC list finishes about eleven marks above a candidate with low vision on the unreserved list, and the utility appoints the higher scorer.
That appointment holds, because an unreserved post is filled on merit and every candidate with low vision is in the running for it whatever their social category, which leaves the lower-scoring unreserved candidate with no claim on it. But the answer would have gone the other way had the OBC candidate needed a relaxation to become eligible in the first place. Which concessions count as relaxations, and which do not, is the first thing below.
Does PwBD reservation apply when the candidate clears the unreserved cut-off?
A candidate with a benchmark disability who has been selected on their own merit, without availing any relaxed standard, is adjusted against an unreserved vacancy rather than against the four per cent quota under Section 34 of the Rights of Persons with Disabilities Act, 2016, which stays available for somebody else. The Supreme Court settled that in Justice Sunanda Bhandare Foundation v. Union of India, 2026 INSC 441, decided on 28 April 2026, in which it accepted an affidavit the Union had filed through the Department of Personnel and Training on 2 January 2026. The affidavit put the rule in terms the Court then adopted, which is that a PwBD candidate “selected on the basis of his/her own merit, without availing relaxed standards, is to be adjusted against unreserved (UR) vacancies and not against the quota reserved for PwBD category”.
None of this is new law. Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 had already held, at paragraph 811, that members of the Scheduled Castes who get selected in open competition on the basis of their own merit “will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates”. What the 2026 order has done is carry that same reasoning across from the vertical quotas to the horizontal one.
It needed saying because the mechanics had been left hanging. In Reena Banerjee v. Government of NCT of Delhi, 2025 INSC 1101, decided in September 2025, the Court had held that failing to provide upward movement to meritorious candidates in the disability category “defeats the very purpose of reservation under Section 34”, yet stopped short of working out how the adjustment was to be done. By April 2026 the Bench was recording that no clarity had come from the Union despite several opportunities, and the Office Memoranda eventually produced are dated 15 January 2018, 17 May 2022 and 27 September 2022.
The rule changes the headcount rather than the paperwork. Section 34(1) fixes the reservation at not less than four per cent of the total number of vacancies in the cadre strength in each group of posts, which for a group carrying 100 vacancies works out at four reserved posts, and which is a different figure from the five per cent of seats the same Act reserves in higher education. Suppose two candidates with benchmark disabilities have cleared the general cut-off unaided: both occupy unreserved vacancies, the four reserved posts stay open, and the establishment ends up making six such appointments instead of four. An establishment which debits the quota instead stops at four, and the two extra appointments never happen.
Promotions are covered as well. The Union’s affidavit applies the principle to direct recruitment and to promotions alike, whether made on seniority-cum-fitness or by selection, and the first proviso to Section 34(1) has always made reservation in promotion follow whatever instructions the appropriate Government issues from time to time. Which is why the DoPT memoranda, rather than the section itself, carry the operative detail for central establishments. States issue their own, so anyone in a State service reads the State’s rules instead.
Which relaxations push a PwBD candidate back into the 4% quota
Relaxations in cut-off marks, age, number of attempts or other eligibility criteria are what count as relaxed standards, whereas a scribe and compensatory time are facilitative measures which leave the candidate’s merit intact. The Court adopted the Union’s formulation on this: “Facilitative measures such as the provision of a scribe or compensatory time shall not be treated as relaxation of standards, whereas relaxations in cut-off marks, age, number of attempts or other eligibility criteria would amount to relaxed standards.” A third limb of the same affidavit records that disability itself cannot be treated as a relaxed standard when medical fitness is being assessed.
The distinction the affidavit draws is between measures which help a candidate demonstrate merit and measures which change the standard being demonstrated, and only the second sort alters the benchmark against which everyone in the unreserved pool is measured.
A relaxation costs the candidate the unreserved post outright. In The West Bengal State Electricity Transmission Co. Ltd. v. Dipendu Biswas, 2026 INSC 330 it was held at paragraphs 46 and 47 that relaxations are confined to appointment within the reserved categories and cannot be carried into an unreserved appointment, since for the unreserved category “the essential qualifications or conditions required for recruitment must be equal in all respects and merit being the only decisive factor”. A reserved candidate offered an unreserved post “must not have availed any relaxation in the eligibility criteria stipulated for the Unreserved PWD-LV category”, which is a proposition the Court had taken from Deepa E.V. v. Union of India, (2017) 12 SCC 680 and reiterated last year in Union of India v. Sajib Roy, 2025 INSC 1084.
So the practical check is a narrow one, which is to read the recruitment rules for the concessions actually applied to the candidature rather than the ones merely available. Age relaxation is where this most often goes wrong, because establishments have a habit of applying it to anybody who has declared a disability, whether or not that candidate needed it to be eligible.
Can an SC, ST or OBC candidate take the unreserved PwBD post?
A candidate from any social category may compete for an unreserved post carrying a disability reservation provided they carry the same disability, and merit alone decides between them. That was settled in Dipendu Biswas, an appeal from Calcutta decided on 7 April 2026 by Sanjay Karol and Nongmeikapam Kotiswar Singh JJ., in which it was held at paragraph 30 that “all candidates, whether SC, ST or OBC, but who are Persons with Disabilities, are equally entitled to compete for the post meant for Persons with Disabilities falling under the Unreserved category, the rationale being that all those who are similarly situated must be treated equally”. The point matters because horizontal reservation cuts across the vertical categories instead of sitting alongside them.
The utility had advertised thirty Junior Engineer (Civil) Grade II vacancies, one of which was unreserved with a low-vision reservation while five were set aside for OBC-A, and when the marks came in an unreserved candidate with low vision had scored 55.667 against an OBC-A candidate with low vision who had scored 66.667. The higher scorer got the post. A Single Bench of the Calcutta High Court upheld that in December 2023, a Division Bench reversed it the following May, and the Supreme Court has since set the Division Bench aside and restored the Single Bench.
A less meritorious unreserved candidate “cannot steal a march over the more meritorious PWD-LV candidate from the reserved category as it would defy the principle of merit”, and reading the recruitment notification the other way “would be patently arbitrary being opposed to the equality clause under Article 14 and Article 16 of the Constitution of India”. Where a more meritorious reserved-category candidate with the same disability is available, paragraph 44 has it that the post goes to that candidate while the claim of the unreserved candidate gets ignored on merit.
Taking the unreserved post costs the candidate nothing back in their own category, which is a point paragraph 42 makes expressly. An OBC, SC or ST candidate appointed to an open post “will continue to remain in the OBC/ST/SC category as the case may be”, does not lose that identity for any other purpose, and does not reduce the extent of reservation available to their category. It is the same non-debiting logic as the section above, applied to the vertical quota instead of the horizontal one.
Why an unreserved post is an open pool and not a social category
An unreserved post has never been a fifth social category sitting alongside SC, ST and OBC, which is the misunderstanding the appeal turned on. Paragraph 27 puts it plainly, holding that the unreserved or open category “does not refer to any social/communal category like SCs, STs or OBCs” and that it “provides an open field or pool meant for the world at large”. The Division Bench had presupposed that “Unreserved” is a communal or social category distinct from the reserved ones, when it is only the remainder left over once the reserved percentages have been accounted for.
Layering a horizontal reservation onto that pool changes one thing and leaves everything else alone. The post stays open to every social category, subject to the qualification that the candidate must also carry the same horizontal attribute, which is how paragraphs 28 and 29 frame it. So an unreserved post reserved for low vision is open to anybody with low vision, from any category.
The mechanics come from Saurav Yadav v. State of U.P., (2021) 4 SCC 542, in which the Court set out at paragraphs 59 and 60 that vertical reservations have to be filled by candidates of the social category concerned, that migration upward on merit has always been possible, and that horizontal reservations “are not inviolate pools or carved in stone” but are interlocking and calculated concurrently with the vertical quotas. Paragraph 45 of Dipendu Biswas applies the sequence which follows from that, which is to examine first whether the horizontal candidate can be adjusted in the open category on merit and only then to look at the horizontal quota inside the particular social reservation.
Two ways of running a horizontal quota sit behind the sequence. Anil Kumar Gupta v. State of U.P., (1995) 5 SCC 173 distinguishes compartmentalised reservation, in which the horizontal seats are divided among the vertical categories and are not intertransferable, from overall reservation, in which unfilled horizontal seats move across so the overall percentage is still honoured. The recruitment in Dipendu Biswas had run on the compartmentalised pattern, though paragraph 24 says the distinction did not need resolving, the only issue being migration into the unreserved horizontal slot.
The same open-competition principle Indra Sawhney settled at paragraph 811 runs underneath the whole scheme. Neil Aurelio Nunes v. Union of India, (2022) 4 SCC 1 was cited at paragraph 46 for the proposition that reservation is affirmative action rather than an exception to the principle of equality, and the Court reasoned from there that relaxations exist to let a weaker class catch up, which is why they stop at the edge of the open pool where the qualifications must be equal in all respects.
Can a candidate with a different disability apply for the same unreserved post?
A candidate carrying a different disability cannot apply, because movement into the open pool is limited in two directions. The first is that a candidate in a different horizontal category cannot cross into somebody else’s reservation, so a candidate who is hearing impaired, an ex-serviceman or in an exempted category has no claim on a post earmarked for low vision under the unreserved head. Paragraph 34 is explicit about it: “only those qualified as PWD-LV can be considered.”
The second limit runs the other way. Paragraph 33 holds that “the vice versa will not be true”, which means that where a post has been reserved for persons with disabilities within OBC-A, only disabled candidates on the OBC-A list may apply while disabled candidates from SC, ST or the unreserved list cannot be considered, that reservation being compartmentalised. Movement runs one way, into the open pool and never out of it into a social compartment.
Two posts from the same notification make the difference concrete. An unreserved post reserved for low vision is open to any candidate with low vision on merit whatever their category, whereas an OBC-A post reserved for low vision is open only to a candidate with low vision on the OBC-A list. Same disability, same recruitment, two different answers.
Identification of posts cannot cut down PwBD reservation
An establishment cannot refuse a PwBD appointment by pointing at an identification list which has gone stale, and that is what Sudhanshu Kardam v. Comptroller and Auditor General of India, 2026 INSC 232, decided on 12 March 2026 by Vikram Nath and Sandeep Mehta JJ., has now settled. The refusal had nothing to do with merit or with social category. It came down to a list last revised in 2013.
Two candidates had cleared the Staff Selection Commission’s Combined Graduate Level Examination 2018 for the post of Auditor in the office of the Comptroller and Auditor General, one of them with a specific learning disability and the other with a mental illness assessed at 55 per cent, and the Commission had recommended both. The CAG returned their dossiers in September 2021 on the view that the post of Auditor had not been identified as suitable for those disabilities.
A gazette notification decided the matter. Notification No. 38-16/2020-DD-III of 4 January 2021, issued by the Ministry of Social Justice and Empowerment, had superseded the 2013 list and identified the Group C posts of Assistant (Audit) and Auditor-II as suitable for mental illness and specific learning disability. Set that against Section 33, which requires the appropriate Government to identify such posts, to constitute an expert committee with representation of persons with benchmark disabilities for the purpose, and to review the identified posts “at an interval not exceeding three years”. A list left untouched since 2013 fails the third of those requirements on its own terms, which is why the identification duty and the reservation duty have to be read together.
The Commission was told to send both dossiers to the CAG within two weeks, the CAG to consider both against Group C posts identified as suitable, and supernumerary posts to be created if the advertised posts had already been filled. Section 34(2) supplies the statutory answer to the reply establishments usually give, in that a vacancy which cannot be filled for want of a suitable candidate is carried forward to the succeeding recruitment year, then filled by interchange among the five categories, and only after that by a person without a disability.
Where to take a refused PwBD appointment
The first stop is the establishment’s own Grievance Redressal Officer, whom Section 23 requires every Government establishment to appoint and to notify to the Chief Commissioner or the State Commissioner. Every complaint has to be inquired into within two weeks of registration, with a route on to the District-Level Committee on disability where the complainant is not satisfied. Above that sits Section 75(1)(b), under which the Chief Commissioner for Persons with Disabilities may inquire into deprivation of rights in matters for which the Central Government is the appropriate Government, and Section 77, which gives the Chief Commissioner the same powers as a civil court for summoning witnesses and requiring the production of documents.
Four things belong on the record early: the certified percentage of disability, the marks scored against the unreserved cut-off for that recruitment, every concession actually applied to the candidature, and the identification notification in force on the date of the advertisement. That last one is what decided Sudhanshu Kardam.
Frequently asked questions
Does a PwBD candidate appointed against an unreserved post reduce the 4% quota?
No, the appointment gets adjusted against the unreserved vacancy while the reserved posts stay open for others, which is the whole point of the direction in Justice Sunanda Bhandare Foundation.
Is using a scribe a relaxed standard which pushes a candidate into the PwBD quota?
It is not, because a scribe and compensatory time are facilitative measures rather than relaxations. Relaxations in cut-off marks, age or the number of attempts are relaxed standards, and those do move the candidate into the reserved quota.
Can a candidate with low vision on the SC list apply for an OBC post reserved for low vision?
They cannot, since a horizontal reservation inside a social category is compartmentalised, which means only candidates on that list may be considered (Dipendu Biswas, paragraph 33).
What happens if no candidate with a benchmark disability is available for a reserved vacancy?
Section 34(2) carries the vacancy forward to the next recruitment year, and if it is still unfilled it may be filled by interchange among the five categories, and only then by a person without a disability. It is never simply converted.
References
Case law
- Anil Kumar Gupta v. State of U.P., (1995) 5 SCC 173
- Deepa E.V. v. Union of India, (2017) 12 SCC 680
- Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217
- Justice Sunanda Bhandare Foundation v. Union of India, 2026 INSC 441 (reported as 2026 LiveLaw (SC) 464)
- Neil Aurelio Nunes v. Union of India, (2022) 4 SCC 1
- Reena Banerjee v. Government of NCT of Delhi, 2025 INSC 1101
- Saurav Yadav v. State of U.P., (2021) 4 SCC 542
- Sudhanshu Kardam v. Comptroller and Auditor General of India, 2026 INSC 232 (reported as 2026 LiveLaw (SC) 237)
- The West Bengal State Electricity Transmission Co. Ltd. v. Dipendu Biswas, 2026 INSC 330 (reported as 2026 LiveLaw (SC) 336; Civil Appeal No. 10262 of 2025)
- Union of India v. Sajib Roy, 2025 INSC 1084
Statutes
- Constitution of India (Articles cited: 14, 16)
- Rights of Persons with Disabilities Act, 2016 (sections cited: 2(r), 23, 32, 33, 34, 75, 77)
Secondary sources
- Department of Personnel and Training Office Memoranda dated 15 January 2018, 17 May 2022 and 27 September 2022, placed before the Supreme Court in W.P. (C) No. 116 of 1998
- Ministry of Social Justice and Empowerment, Gazette Notification No. 38-16/2020-DD-III dated 4 January 2021
Disclaimer
This article is for informational and educational purposes only and does not constitute legal advice. Reservation entitlements turn on the recruitment rules and the identification notification applicable to the particular advertisement. Readers should consult a qualified advocate before acting on any point discussed here.