Kailashi Devi and Others vs State of Rajasthan and Others

Sandeep Mehta, J.—Heard learned counsel for the parties.

The instant writ petitions have been preferred by the petitioners, assailing the action of the respondents in denying the petitioners, opportunity to be appointed on the post of Teacher Grade-III in the physically handicapped category and with a prayer for directing the respondents to provide appointment to the petitioners on the post of Teacher Grade-III (General), Post Code 22 with all consequential benefits against the seats reserved for physically handicapped persons in the selection process initiated under the advertisement Annex.1 dated 2.9.2008.

The controversy raised in these writ petitions revolves around the claim of the petitioners for applying reservation in the category of persons with disabilities (loosely termed as handicapped quota) on vertical basis rather than the horizontal reservation, which was applied by the respondents during the selection process under challenge. The petitioners herein are differently abled persons. The respondents invited applications for filling up the vacancies of Teachers Grade-III vide advertisement dated 2.9.2008 (Annex.1). 11 posts were bifurcated and reserved for the category of physically disabled persons out of total available 369 posts. Further bifurcation was made from these 11 posts and 6 posts were reserved for the persons having low vision and remaining 5 posts were reserved for persons having other disabilities. The petitioners claim that they were armed with the requisite eligibility criterion and accordingly, they applied against the five posts reserved for persons with disabilities other than low vision quota. The result of examination was published by the respondents and the newspaper cutting of the result has been placed on record of the writ petition as Annex.3. It is asserted in the writ petition that, in addition to the publication of the result in the newspaper, a press note (Annex.4) was also released by the Commission on its official website mentioning that the cut off percentage of marks for physically handicapped persons was 95.88. The petitioner Kailashi Devi claims to have secured 114.92 marks whereas the petitioner Tosif Ahmed claims to have secured 127.84 marks in the examination. The petitioners have raised a grievance in the writ petitions that though the cut off marks for seats reserved for physically handicapped quota was only 95.88 and despite the fact that the petitioners secured much more than the cut off marks, yet they were denied appointment against the seats reserved for their category. The petitioners have further stated that 4 candidates in the physically handicapped other than low vision category, whose roll numbers and marks are reproduced herein below:--

secured more marks than the cut off for the general category candidates which was fixed at 140.08 and this would take them in the category of general candidates and hence, they ought to have been moved up and adjusted in general category and thereby 4 seats of physically challenged persons would have become available for recruitment to differently abled candidates having lesser marks and as a direct consequence thereof, the petitioners would stand a chance of gaining employment in the reserved category on the basis of the marks secured by them in the examination.

The respondents have filed a reply to the writ petitions, wherein it is averred that the cut off marks, as reflected in the result, are only for the low vision category. The petitioners did not apply in this category. So far as physically disabled categories of locomotor disability and cerebral palsy are concerned, 5 posts were reserved for these categories and 4 of these posts were filled in by the candidates, roll numbers whereof have been mentioned by the petitioners in the writ petitions. The fifth candidate was also placed higher in merit as compared to the petitioners. It is asserted in the reply that only social reservation provided under Article 16(4) of the Constitution of India can be applied vertically. Reservation for all remaining categories has to be applied in a horizontal manner. Meaning thereby, even if a candidate belonging to a horizontal reservation category secures higher marks than the cut off for the general category, such candidate cannot be moved up to the general category and has to be provided appointment in his/her own category. On the basis of these submissions, the respondents have defended their stand in denying appointment to the petitioners as they secured fewer than the cut off marks for the category under which they applied for selection.

Learned counsel for the petitioners relied upon the Supreme Court judgment in the case of Union of India (UOI) and Another Vs. National Federation of the Blind and Others, (2013) 10 AD 613 : (2013) 139 FLR 811 : (2013) 13 JT 364 : (2013) LabIC 4447 : (2014) 2 LLN 19 : (2013) 12 SCALE 588 : (2013) 10 SCC 772 : (2013) 4 SCT 807 : (2014) 1 SLJ 88 and submitted that the Central Government has issued an office memorandum No. 336035/3/2004-Estt (Res) dated 29.12.2005 which was approved by the Hon''ble Supreme Court in the aforesaid judgment which deals with the reservation for differently abled persons. He contended that the defence raised by the respondents for justifying their action in applying horizontal reservation for differently abled persons is based on certain judicial pronouncements by the Hon''ble Apex Court but in none of those cases, provisions and import of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, "the Act of 1995") and the circulars issued thereunder, was considered. Thus, he submitted that the matter is required to be considered in the light of the Act of 1995 and the circulars issued thereunder and the claim of the petitioners for vertical reservation as provided in Clause 7 of the office memorandum cannot be defeated by the judgments rendered in the cases wherein the import of the Act of 1995 and the circulars issued thereunder was neither considered nor adjudicated.

Per contra, learned counsel for the respondents vehemently opposed the submissions advanced by the petitioners'' counsel. He submitted that the reservation for all categories other than social reservation is required to be applied in a horizontal fashion. Only social reservation under Article 16(4) of the Constitution of India can be applied vertically. As per them, only those candidates who fall within the social reservation category, upon securing higher marks than the cut off for the general category, have to be moved up in the general category and the seats reserved in their category would remain vacant for being filled by lesser meritorious candidates from the particular reserved category. They placed reliance upon the judgments rendered by the Hon''ble Apex Court in the cases of (1) Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., AIR 1993 SC 477 : AIR 1992 SC 477 : (1992) 3 SCC 217 : (1992) 2 SCR 454 Supp ; (2) Anil Kumar Gupta and Others Vs. State of U.P. and Others, (1995) 5 JT 505 : (1995) 4 SCALE 573 : (1995) 5 SCC 173 : (1995) 2 SCR 396 Supp and (3) Public Service Commission, Uttaranchal Vs. Mamta Bisht and Others, AIR 2010 SC 2613 : (2010) 126 FLR 413 : (2010) 6 JT 221 : (2010) 6 SCALE 121 : (2010) 12 SCC 204 : (2011) 1 SCC(L&S) 208 : (2010) 4 SLR 65 : (2010) AIRSCW 3722 : (2010) 4 Supreme 504 in support of their arguments and urged that the writ petitions are liable to be dismissed.

This Court during the course of the arguments, requested learned counsel Mr. Anirudh Purohit to act as an amicus curiae to assist the Court.

Learned amicus curiae drew attention of this Court to the notification No. F.14(18)DOP/A-II/96 dated 22.9.2000 issued by the State Government, whereby the Rajasthan Employment of the Persons with Disabilities Rules, 2000 (for short, the Rules of 2000) were promulgated. He submitted that appropriate Government is defined under Section 2(a) of the Act of 1995. The matters relating to the State Government employees are required to be considered as per Section 2(a)(ii). Distinct categories are provided for the Central and State Government employees. Section 73 of the Act empowers the appropriate Government to make Rules for carrying out the provisions of the Act of 1995. He submitted that though, as per the Central Government''s office memorandum which has been approved in the case of National Federation of the Blind (supra), the persons with disabilities have been conferred with benefit of vertical reservation but the State of Rajasthan, whilst promulgating the Rules of 2000 has adopted a criterion of horizontal reservation for persons with disability as per Rule 4 of the Rules of 2000. He further submitted that even in the judgment relied upon by the learned counsel for the petitioners in the case of National Federation of the Blind (supra) also, the Hon''ble Supreme Court, at para 49 of the judgment has clearly propounded that the reservation for persons with disability is a horizontal reservation. He, therefore, submitted that as the Act itself stipulates that the State is empowered to frame Rules governing the application of the Act of 1995, the recruitments in the State have to be governed by the Rules of 2000 and cannot be influenced or guided by the office memorandum dated 29.12.2005 issued by the Central Government on which the petitioners bank upon, while claiming the relief prayed for in the writ petition.

Heard and considered the arguments advanced at the bar and perused the material available on record.

It cannot be gainsaid that as per the judgments rendered in the cases of (1) Indra Sawhney; (2) Anil Kumar Gupta and (3) Mamta Bisht (supra), only social reservation under Article 16(4) of the Constitution of India is to be applied in a vertical manner. All other reservations have to be applied in a horizontal manner. At the same time, it is not in doubt that the import of the Act of 1995 was not under consideration in any of the judgments relied upon by the counsel for the respondents. Thus, the controversy in hand is required to be considered exclusively in light of the Act of 1995. The Act of 1995 is a socio beneficial enactment promulgated to deal with the cases of persons with disabilities.

Thus, whilst social reservation under Article 16(4) deals with the persons who have been discriminated by human beings, the Act of 1995 deals and provides for the persons who have been discriminated and deprived of some of their faculties by nature. It is probably looking to the said situation that the Central Government issued the office memorandum dated 25.12.2005 which has been approved by the Hon''ble Apex Court in the judgment rendered in the case of National Federation of the Blind (supra). Clause 7 of the said office memorandum is quoted below:--

"7. ADJUSTMENT OF CANDIDATES SELECTED ON THEIR OWN MERIT: Persons with disabilities selected on their own merit without relaxed standards alongwith other candidates, will not be adjusted against the reserved share of vacancies. The reserved vacancies will be filled up separately from amongst the eligible candidates with disabilities which will thus comprise physically handicapped candidates who are lower in merit than the last candidate in merit list but otherwise found suitable for appointment, if necessary, by relaxed standards. It will apply in case of direct recruitment as well as promotion, wherever reservation for persons with disabilities is admissible."

The concept of horizontal and vertical reservation is not provided in the Constitution of India but has been postulated by the Hon''ble Apex Court in various judgments including the case of Indra Sawhney (supra). Thus, while examining a controversy regarding the nature of reservation, where the Statute itself specifies the manner in which the reservation is to be applied, the same would hold field unless declared unconstitutional and struck down by the Courts. Viewed in this light, in case the vacancies are advertised by the Central Government, definitely the provision of office memorandum dated 25.12.2005 would be conclusive and the reservation for the persons with disabilities would be required to be applied strictly in accordance thereof. Clause 7 of the said office memorandum clearly provides that the persons with disabilities selected on their own merit without relaxed standards along with other candidates, will not be adjusted against the reserved share of vacancies. However the State Government which is the appropriate Government under Section 73 of the Act of 1995 appears to have missed the bus when the question of applying reservation for the persons with disabilities was being considered. The Rules of 2000 framed by the State Government particularly, Rule 4 thereof, clearly postulates that the reservations for the persons covered by the Act of 1995 shall be treated as horizontal reservation. In this view of the matter, though the petitioners are perfectly justified in questioning the procedure adopted by the respondent State but looking to the fact that the State Rules which govern the selection process in question, provide only horizontal reservation for differently abled persons under the Act of 1995, the prayer made by the petitioners for directing their appointment by applying vertical reservation and moving the four abovementioned more meritorious differently abled candidates to the general category on the basis of higher marks secured by them and leaving those four posts vacant for being filled in by lesser meritorious candidates cannot be accepted because such a direction would amount to applying vertical reservation in the different abled quota seats in selections conducted by the State and which would be totally contrary to the provisions of Rules of 2000. The petitioners, in the opinion of the Court, would be better advised to challenge the validity of the Rules of 2000, for seeking redressal of their grievances.

Before parting with the judgment, this Court expresses its appreciation for the able assistance provided by amicus curiae Mr. Anirudh Purohit in the process of adjudication.

As an upshot of the above discussion, the instant writ petitions, being devoid of merits, are hereby dismissed.

No order as to costs.

A copy of this order be placed in connected file.