Akashdeep Arora vs State of Rajasthan

Veerendra Singh Siradhana, J.—The matter has been taken up for final disposal with the consent of the learned counsel for the parties, at this stage.

The petitioner, though is visually handicapped person (blind), has acquired the qualification of Master of Arts (Psychology), with first position in the University of Rajasthan, in the examination held in the year 2001. He has also qualified the National Educational Test - Eligibility for Lectureship (NET), conducted by the University Grants Commission and was pursuing his study for Doctorate Course (Ph.D.) in Psychology while he participated in the selection process under challenge. An advertisement was issued by the Rajasthan Public Service Commission (hereinafter referred to as ''RPSC'', for short) dated 6th April, 2003, inviting applications from the eligible candidates for participation in the Rajasthan State & Subordinate Services Combined Competitive Examination under the Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1999 (hereinafter referred to as the ''Rules of 1999'', for short). The petitioner being eligible in all respects, submitted his candidature for consideration in the recruitment process aforesaid. Out of total 493 vacancies notified, 188 vacancies were for State Services and 305 for Subordinate Services. Reservation for of various categories under the rules including one for handicapped persons, was also spelt out in the advertisement notifying the vacancies. The petitioner participated in the selection process and appeared in the preliminary examination held on 12th October, 2003. The result of the preliminary examination was declared on 7th December, 2003, with cut off marks for various eight categories. In the result declared, no separate category for ''handicapped persons'', was detailed out separately with cut off marks as in the case of other eight categories. No minimum qualifying marks were fixed by the RPSC, but the candidates were declared successful in the ratio 1:15. Thus, against five vacancies reserved for visually handicapped persons (one for State Services and four for Subordinate Services), 75 candidates ought to have been declared successful in a separate category indicating the cut off marks. Since the respondent Commission did not adopt the criteria of declaring successful candidates in the physically handicapped category in the ratio 1:15 and also did not indicate them in a separate category with cut off marks, therefore, the action has been assailed to be illegal, arbitrary and violative of mandate of Article 14, 16, 38(2), 41 and 48 of the Constitution of India.

In the response to the notice of the writ application, the respondent - RPSC has filed it''s counter-affidavit, raising preliminary objections as to the very maintainability of the writ application, as the petitioner after having participated in the selection process and having been declared unsuccessful, is precluded from challenging the selection process and the criteria prescribed. It is further pointed out that the issue raised in the writ application, is no more res-integra in view of opinion of a Coordinate Bench of this Court in S.B. Civil Writ Petition Number 384 of 2004 (Prakash Chand v. State of Rajasthan & Anr.) and S.B. Civil Writ Petition Number 830 of 2004 (Himanshu Kachhwaha v. R.P.S.C., Ajmer), raising the same issue with reference to preparation of separate merit list for physically handicapped persons, in the Rajasthan Administrative Services Preliminary Examination, 2003; which were preferred before the Principal Bench of this High Court and have been dismissed vide judgment and order dated 16th March, 2004. It is also stated that the reservation provided to the Physically Handicapped Category is horizontal in nature and the horizontal reservations cut across the vertical reservations. Thus, the candidates of the Physically Handicapped Category would be adjusted in their respective categories and no separate merit list is required to be drawn. In the selection process involved, the RPSC received about 2,67,500 application forms including the application form of the petitioner. Nearly, 2.65 lacs of the applicants were provisionally allowed to participate in the preliminary examination held on 12th October, 2003. The result of the examination was declared on 7th December, 2003. In accordance with the mandate of Rule 15 and 17 of the Rules of 1999; 47 physically candidates were declared successful along with others. Since the petitioner could not secure the minimum cut off 280 or more marks in the general category (male), therefore, he was not declared qualified to participate in the main examination. Referring to the opinion of the Hon''ble Supreme Court in the case of Indira Sawhney v. Union of India: (1992) Suppl. (3) SCC 215, it has been pleaded that reservation in favour of Scheduled Caste, Scheduled Tribe and Other Backward Classes under Article 16(4) of the Constitution may be called as vertical reservations. The reservations in favour of physically handicapped persons under Article 16(1) of the Constitution may be referred to as "horizontal reservations", which cuts across the vertical reservations. 3% of the vacancies reserved for physically handicapped persons are relatable to Article 16(1) of the Constitution and the successful candidates belonging to physically handicapped category are to be placed in the relevant category to which they belong i.e. Scheduled Caste, Scheduled Tribe, Other Backward Classes and General, as the case may be, by making necessary adjustments. Therefore, it was prayed that the action of the respondent - RPSC cannot be faulted and the writ application merits rejection.

The learned counsel for the petitioner reiterating the pleaded facts insistingly argued that the action of the respondent RPSC in not declaring the result of handicapped persons, who participated in the selection process, in a separate category indicating cut off marks, as was done in the case of other eight categories; is illegal, arbitrary and violative of the fundamental rights of the petitioner as well as contrary to the mandate of the Rules of 1999 as well as Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the ''Act of 1995'', for short) and Rules made thereunder i.e. Rajasthan Employment of Persons with Disabilities Rules, 2000 (hereinafter referred to as the ''Rules of 2000'', for short).

The learned counsel for the respondent RPSC, Mr. S.N. Kumawat, reiterating the stand as pleaded in the reply to the writ application, repelled the contentions placing reliance on the opinion of the Hon''ble Supreme Court in the case of Indira Sawhney (supra). The learned counsel would further submit that since the horizontal reservations cut across vertical reservations, therefore, 3% reservation, extended in favour of the handicapped persons, would be a reservation relatable to Article 16(1) of the Constitution and the persons selected in this quota are to be placed in the appropriate category, as the case may be. According to the learned counsel, the controversy has already been set at rest in view of the judgment and order delivered by the Coordinate Bench of this Court at Principal Seat in the case of Himanshu Kachhwaha and Prakash Chand (supra).

I have heard the learned counsel for the parties and with their assistance, perused the materials available on record.

The Coordinate Bench dealing with almost identical controversy while taking note of the opinion of the Hon''ble Supreme Court in the case of Indira Sawhney (supra), observed thus:-

Before proceeding to examine the controversy, I may gainfully quote the provisions of Rule 15 and 17, which provide for the scheme of examination, and making of the recommendations of the Commission, which reads as under:-

Scheme of Examination, personality and Viva-voce Test.-The Competitive Examination shall be conducted by the Commission in two stages i.e. Preliminary Examination and main Examination as per the scheme specific in Schedule-III. The mark obtained in the Preliminary Examination by the Candidates, are declared qualified for admission to the Main Examination on will not be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies (Categorywise) to be filled in the year in the various services and posts but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for lower range will be admitted to the main Examination.

Candidates who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview. The Commission shall be award marks to each candidate interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthani Culture. However, for selection to the Rajasthan Police Service Candidates having ''C'' Certificated of N.C.C. will be given preference. The marks so awarded shall be added to the marks obtained in the Main Examination by each such candidates.

Provided that the Commission, on intimation being received from the Government before declaration being result of the Preliminary Examination may increase or decrease the number of vacancies advertised.

Recommendations of the Commission.-(1) The Commission shall prepare for each Service, a list of the candidates arranged in order of merit of the candidates as disclosed by the aggregate mark finally awarded to each candidate. If two or more of such candidates obtain equal mark in the aggregate the Commission shall arrange their names in the order of merit on the basis of their general suitability for the service;

Provided that the candidate(s) belonging to the other Backward Classes/Scheduled Castes/Scheduled Tribes, who get placement in the merit list as a result of special concession given to them in terms of "age" and "fees" or such other concession granted by the Government shall be counted against the reserved vacancies determined for the candidates belonging to the Other Backward Classes/Scheduled Casts/Scheduled Tribes irrespective of the marks obtained by them.

(2) The Commission, while giving weightage to the preference for the posts in the different services expressed by a candidate in his/her application, may recommend him/her for appointment to any post in any such service or which it considers him suitable.

(3) The list complied under this rule shall be immediately sent to the Government and also be published for general information.

A look at these two provisions make it clear, that in the process of selection, actually the process of elimination take place, the first step of elimination is of short listing, by holding a preliminary examination, as mentioned in Rule 15, and thereafter, the successful candidates, up to the specified limit, are eligible to appear in the main examination, and out of the candidates, who pass in the examination i.e. obtain minimum qualifying marks, are to be summoned for interview, wherein also marks are to be awarded, having regard to their character, personality, address, physique and knowledge of Rajasthani Culture, and the total of the marks obtained in interview, and the main examination, makes the basis for preparation of merit list for the purposes of Rule 17.

Now taking up the various Judgments of Hon''ble the Supreme Court, and of this court, P.B. Vijaykumar''s case, was a case, dealing with the question of validity of Rule 22-A(2) of the Andhra Pradesh State and Subordinate Service Rules, where-under it was provided, that in the matter of direct recruitment to the posts for which men and women are equally suited, other things being equal, preference shall be given to women, and they will be selected to an extent of at least 30% of the post in each category of O.C., B.C., S.C., and S.T. Quota. Hon''ble The Supreme Court considered the validity of that provision, and upheld the same, and in that process, in para 9, it was observed as under:-

Reservation normally implied a separate quota which is reserved for a special category of persons. Within that category appointments to the reserved posts may be made in the order of the merit. Nevertheless, the category for whose benefit a reservation is provided, is not required to compete on equal terms with the open category. Their selection and appointment to reserved posts is independently on their inter se merit and not as compared with the merit of candidates in the open category. The very purpose of reservation is to protect this weak category against competitive from the open category candidates.

Then Hon''ble the Supreme Court quoted the para 836 of Indra Sawhney''s case.

In Indra Sawhney''s case, in paras 856, 857, and 858, as relied upon by the learned counsel for the petitioner, what has been held by Hon''ble the Supreme Court is, that the reservation necessarily means appointment of less meritorious persons, and that the small difference, that may be allowed at the stage of initial recruitment is bound to disappear in course of time, these members too will compete with and improve their efficiency along with others. Thus, neither the judgment in P.B. Vijaykumar, nor these three para of Indra Sawhney''s case, lay down the requirement, of declaring the result of preliminary examination, by treating the physically handicapped persons to be a separate category, like SC, ST, OBC, etc., so as to entitle the petitioners to claim declaration of 15 times the number of vacancies as successful candidates eligible to appear in the main examination.

On the other hand, a look at para 832 of the judgment in Indra Sawhney''s case, clearly holds it otherwise, by holding this reservation to be horizontal, and to be inter-locking reservation, and also by giving specific example. I may gainfully quote para 832 of Indra Sawhney''s case, which is as under:-

We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes make under Article 16(4). A little clarification is in order at this juncture all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as ''vertical reservations'' and ''horizontal reservations''. The reservations in favour of scheduled Castes, Scheduled Tribes and other backward classes (under Article 16(4) may be called vertical reservation whereas reservations in favour of physically handicapped (under clause (1) of Article 16) can be referred to as horizontal reservation. Horizontal reservations cut across the vertical reservations - what is called inter-locking reservations. To be more precise suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category, if he belongs to S.C. Category he will be placed in that quota by making necessary adjustment; similarly, if he belongs to open competition (O.C.) category, he will the placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains and should remain the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.

Dharamveer Tholia''s case need not detain me much, because as appears from para 53 of the judgment, that during pendency of the matter before this court, Hon''ble the Supreme Court passed the interim order staying declaration of the result of the main examination, likewise, as appears from para 48 of the judgment, that the Hon''ble Division Bench also held, that the public interest litigation filed only on 24.7.2000, to challenge the validity of the rule, after declaring the result, and after the time table for examination had been issued, is not entertainable as at this belated stage. Then in Chattar Singh''s case it was held, that separate lists are required to be published by the Commission in respect of the candidates in the respective categories, so as to make up number of candidates 15 times the notified or anticipated posts/vacancies. But then the question considered was, on the anvil of requirement of providing lesser cut off marks for OBC category, and the categories being considered in that judgment, were General, SC, ST and OBC. Therefore, that judgment is also no authority for the proposition under consideration before me, either ways.

However, Bhuvaneshwar Singh''s case is a direct judgment on the issue, where it was clearly held as under:-

That law does not permit that there should be separate category for physically handicapped persons for purpose of reservations.

This judgment took into account the aforesaid Rajasthan Handicapped Persons (Physically disabled persons) Rules of 2000 as well. Significantly, Bhuvaneshwar Singh''s case, was a case relating to final examination, as the candidates therein had qualified in the preliminary examination, and was called to appear in the main examination, the result whereof was declared on 24.10.2000, and not a single candidate, under the category of blind, was interviewed, though the petitioner was the only person of that category who qualified the preliminary examination, and appeared in the main examination, under the category of Blind, and according to the mark sheet, there was an endorsement made to the effect "not qualified for interview", which precisely was under challenge. On the other hand, the present case is still on a stronger footing, inasmuch as, here the matter relates only to short listing.

As is evident from the materials available on record, the preliminary examination is a process adopted only for the purpose of shortlisting of the candidates and at that stage, it would be too much for the petitioner to demand for declaration of the result category-wise as prayed for and insistingly argued by the learned counsel for the petitioner. Moreover, the petitioner having participated in the selection process is not entitled to challenge the same after having been declared unsuccessful. Dealing with somewhat similar controversy, the Hon''ble Supreme Court in the case of Dhananjay Malik and Others Vs. State of Uttaranchal and Others, observed that having unsuccessfully participated in the process of selection, without any demur, the candidates are estopped from challenging the selection criterion.

In the instant case at hand, it is not disputed that the petitioner herein participated in the selection process without any demur; he is estopped from complaining that selection process was not conducted in accordance with the Rules of 1999.

For the reasons and discussions herein above, I find that the writ application preferred as devoid of any substance and lacks in merit and therefore, deserves to be dismissed.

Ordered accordingly.

However, in the facts and circumstances of the case, there shall be no order as to costs.