SANJAY vs STATE OF M P

The petitioner before this Court is an Orthopaedically Handicapped

(OH) person belonging to OBC category. In this petition, the petitioner has

challenged the select list dated 24.11.2015 issued by the respondent

No.4/M.P. Professional Examination Board whereby the respondents No.5 and

6 having less merits than the petitioner have been selected for the post of

Lab Technician (Geography) through direct recruitment.

The contention of the learned counsel for the petitioner is that the

petitioner has secured 92 marks out of 200 in OBC /OH category in the

written examination of Lab Technician Recruitment Test - 2015 whereas the

respondent No.5 has secured 82 marks and respondent No.6 has secured 81

marks out of 200 respectively. This is despite the fact that the petitioner

belongs to OBC category and the private respondents No.5 and 6 belong to

Unreserved (UR) category.

The case of the petitioner is that the M.P. Professional Examination

Board had invited online applications for the post of Lab Technician

(Geography) and other posts. In the advertisement Annexure P/2 in clause 1

(e), the manner in which the seats are to be filled through reservation is

provided, which reads as under :

"VERNACULAR MATTER OMITTED"

Clause (25) of the advertisement provides as under : "VERNACULAR MATTER OMITTED"

Thus, according to the petitioner, the selection of respondents

No.5 and 6 is contrary to the aforesaid scheme of reservation and the

petitioner who belongs to OBC category has been unduly discriminated

vis.a.vis. respondents No.5 and 6, who are also Orthopedically Handicapped

(OH) but belong to unreserved (UR) category. The petitioner has also

contended that as per the advertisement there are three vacancies of

handicapped persons and all three are reserved for Orthopaedically

Handicapped persons. It is further provided that the disabled persons of the

category who would be appointed on this post shall be considered for that

particular category only. Thus the contention of the petitioner is that the

respondent No. 5 and 6 ought not to have been appointed by circumventing

the aforesaid provisions of reservation.

In the return, on behalf of the respondent No.4 & 7 / M.P.

Professional Examination Board (for short the MPPEB), the learned counsel

Shri Rahul Diwaker has submitted that the petition is devoid of any merit and

is liable to be dismissed and there is no violation of any reservation policy as

prescribed in the application itself. The petitioner has made averments

without even properly understanding the provisions of reservations. For the

unreserved/OH category the cut off marks is 81 whereas in the OBC/OH

category, the cut off marks is 96 and thus the petitioner has obtained 92

marks under OBC/OH category which is less than the cut off marks of the

OBC/OH category. In such circumstances, the petitioner''s name has been

placed under the waiting list and the case of the petitioner cannot be

compared with the respondents No.5 and 6 because respondents No.5 and 6

have appeared under UR/OH category whereas the petitioner has appeared

under OBC/OH category and even if the petitioner has obtained more marks

than the respondents No.5 and 6 she cannot claim the benefit of other

category. Shri Diwaker has also relied upon the decision of the Hon''ble Apex

court in the case of Indra Sawhney vs. U.O.I. and others reported in AIR

1993 SC 477.

The other respondents have also supported the merit list on the

ground that the petitioner belongs to the OBC/OH category where the cutoff

marks were 96 whereas the petitioner has secured only 92 marks out of 200

but she cannot claim the post of Unreserved/OH category as the same is not

allowed under the condition of the advertisement

Heard learned counsel for the parties and perused the record.

It is an admitted fact that the petitioner belongs to the OBC/OH

category and has secured 92 marks out of 200 and the cutoff marks in the

OBC/OH category were 96. On the other hand the respondent No.5 has

secured 82 marks and respondent No.6 has secured 81 marks out of 200

respectively in the Unreserved/OH category wherein the cutoff marks were 81

which is also apparent from the final marks list filed along with the reply filed

by the respondent MPPEB and since the petitioner has obtained 92 marks

under OBC/OH category which is less than the cut off marks for the OBC/OH

category i.e. 96, her name has been placed under the waiting list. In these

circumstances, the case of the petitioner cannot be compared with the

respondents No.5 and 6 because respondents No.5 and 6 have applied under

UR/OH category whereas the petitioner has applied under OBC/OH category

hence even if the petitioner has obtained more marks than the respondents

No.5 and 6, she cannot claim the benefit of other category as under the

reservation policy, OBC and UR categories belong to vertical reservation

whereas OH is the horizontal reservation.

In the case of Indra Sawhney (supra), the Hon''ble Apex Court

in para 95 has held thus:

"95. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made 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 ''verticall 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 reservations whereas reservations in favour of physically handicapped (under clause (1) of Article 16 ); can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations what is called inter-lock 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 adjustments; similarly, if he belongs to open competition (O.C.) category, he will be 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 our in several States and there is no reason not to continue that procedure.

It is, however, made clear that the rule of. 50% shall be applicable only to reservations proper; they shall not be - indeed cannot he applicable to exemptions, concessions relaxations, if any, provided to ''Backward Class of Citizens'' under Article 16(4)."

(emphasis supplied)

Thus, it becomes clear from the aforesaid proposition of law that

there can be no cutting across the vertical reservation categories inter se and

only the horizontal reservations can cut across the vertical reservations.

In the circumstances, despite the petitioner who belongs to

OBC/OH category and has secured more marks than the respondent no.5 and

6 of UR/OH category, cannot claim a seat in the unreserved category of

Orthopedically Handicapped (O.H.) persons. In the result, the petition fails

and is hereby dismissed. No costs.