Gujarat High Court
Soni Jagdishkumar Ajaykumar vs Gujarat Public Service Commission on 8 July, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14425 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SONI JAGDISHKUMAR AJAYKUMAR
Versus
GUJARAT PUBLIC SERVICE COMMISSION
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Appearance:
MR GUNVANT R THAKAR(3801) for the Petitioner(s) No. 1,2
MS BHARGAVI G THAKAR(5015) for the Petitioner(s) No. 1,2
MR. KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 2
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 08/07/2022
CAV JUDGMENT
1 The petitioners, physically handicapped general category candidates having low vision and both legs disability respectively, have Page 1 of 13 Downloaded on : Fri Jul 08 21:44:03 IST 2022 C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022 approached this Court for a direction that the Notification dated 04.07.2019 by which, the result of the Combined Competitive Examination (Main) was published be revised. It is their case that considering the provisions of Sec.34 of Rights of Persons with Disabilities Act, 2016, and provisions of Rule 11 of Rights of Persons with Disability Rules, 2017, the petitioners No.1 & 2 are entitled to be appointed on the post of G.A.S Cadre i.e. Junior Scale, Deputy Collector, Dy. District Development Officer and Assisstant Commissioner, State Tax. It is their case that by virtue of their disability, their appointments should have been in the preferences given and not on the posts that they were actually allotted i.e. of the Taluka Development Officer and Section Officer respectively.
2 Facts in brief would indicate that an advertisement was issued on 16.07.2018 for appointments to various posts of Gujarat Administrative Service, Class-I, Gujarat Civil Services, Class-I & II & Gujarat Municipal Chief Officer Service, Class-II.
2.1 The advertisement was for 294 posts in all and as per provisions of the Disability Act, 12 seats were reserved for disabled candidates. Out of total 12 seats, 5 seats were reserved for Class-I post i.e. 3 seats for General Administrative Service, 2 seats for Assisstant Commissioner, State Tax and 7 seats were reserved for Class-II post i.e. one seat each for Page 2 of 13 Downloaded on : Fri Jul 08 21:44:03 IST 2022 C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022 Section Officer, Mamlatdar and Sales Tax Officer, 3 seats for Taluka Development Officer and 1 seat for Chief Officer.
2.2 The petitioner No.1 had given preference for General Administrative Service and the petitioner No.2 had given preference for Assisstant Commissioner, State Tax.
2.3 The result of the Combined Competitive Examination (Main) was declared on 04.07.2019. Four general category disabled candidates were available for consideration of selection. The petitioner No.1 secured 423.25 marks, merit no. 251. Petitioner no.2 secured 431.50 marks, merit No. 246. Considering the lowest mark of a candidate of each category after granting 10% relaxation, the Cut-Off for the general category candidate for GAS cadre was 437.62. Therefore, only one candidate who was found to have 440.75 marks was selected in the general category (disabled). Though two posts were available and are vacant, the petitioner No.1 was not allotted the post of Deputy Collector. For the post of Assisstant Commissioner, State Tax, after deduction of 10% marks, for the last general category candidate, the Cut-Off was 437.18. Since the petitioners had a lower merit, both posts remained vacant. 3 Ms.Bhargavi Thakar, learned counsel for the petitioners would make the following submissions:
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C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022 3.1 Relying on Rule 11 (4) of the Disability Rules, she would submit that there has to be reservation for persons with disabilities in accordance with Sec.34 of the Act. The computation has to be 4% of the total number of vacancies. She would submit that when 12 posts were reserved for disabled category candidates, in accordance with para 14.1 of the advertisement, 36 candidates i.e. three times the number of disabled category were required to be called for interview.
3.2 She would further submit that in the Gujarat Administrative Services, Class-I, and Gujarat Civil Services, (Class-I & II), Competitive Examination Rules, 2017, there is no mention regarding Cut-Off marks on the basis of 10% relaxation in marks considering the lowest marks of candidate for each category in particular cadre for candidates belonging to the disabled category. Therefore, while preparing cadre-wise merit list, it is not open for the Gujarat Public Service Commission to consider 10% relaxation in marks considering the lowest marks of candidate for each category but a separate merit list for disabled candidates requires to be prepared considering them as a separate class. Separate merit list for disabled candidates is required to be prepared and they are required to be allotted reserved posts of disabled candidates as per merit. 3.3 In support of her submission, she would rely on one Notification of the Union Public Service Commission tendered with the additional affidavit. Relying on the decision of the Hon'ble Supreme Court in the Page 4 of 13 Downloaded on : Fri Jul 08 21:44:03 IST 2022 C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022 case of Mahesh Gupta & Ors vs. Yashwant Kumar Ahirwar & Ors., reported in AIR 2007 SC 3136, she would submit that a merit list of disabled candidates is required to be prepared separately. She would submit that the Gujarat Public Service Commission has published the result for appointment in which Cut-Off marks for disabled candidates are decided on the basis of 10% relaxation in marks considering the lowest marks of candidate for each category in particular cadre instead of preparing separate list of disabled candidates which is contrary to the spirit of the Disabilities Act.
3.4 She would further submit that if suitable candidate with bench mark disability is not available than a vacancy is required to be carried forward. She would rely on a decision in the case of Rajeev Kumar Gupta & Ors., vs. Union of India & Ors., reported in 2016 (3) SCC 153.
She would also rely on a decision in the case of Union of India & Anr vs. National Federation of the Blind., reported in 2013 AIR SCW 5655., in support of her submission that the Disabilities Act must be followed. 4 Ms.Roopal Patel, learned counsel appearing for the Gujarat Public Service Commission, made the following submission:
4.1 She would submit that once having participated in the selection, it is not open for the petitioners to challenge the criteria. 4.2 She would submit that the advertisement clearly stipulated that the Page 5 of 13 Downloaded on : Fri Jul 08 21:44:03 IST 2022 C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022 physically disabled candidates of each category shall be considered in their respective categories. She would submit that while preparing a merit list, the Cut-Off marks of the general category candidate is relaxed by 10% as stipulated in the advertisement. She would refer to the Notification of the result dated 04.07.2019 particularly para 5(A) explaining the methodology of preparing the merit list. Extensive reliance was placed on para 5 of the notification. She would further submit that the physically disabled candidates have been considered against post of their respective social category after relaxing upto 10% marks of the qualifying standard fixed for their respective social category. Relying on the affidavit in reply, Ms.Patel, learned advocate, would submit the step by step procedure to select the P.H category candidate for his preferred post. Explaining the preparing of merit list, Ms.Patel, learned advocate, would submit that as per the advertisement, 12 posts were reserved for physically handicapped category. The petitioner No.1, secured 423.25 marks and petitioner No.2 secured 431.50 marks. As far as the petitioner No.1 is concerned after 10% relaxation for G.A.S cadre, the Cut-Off was 438, which the petitioner did not attain, hence was not eligible. Petitioner No.2, for Assisstant Commissioner, State Tax, after 10% relaxation, cut off was 485.75, which the petitioner did not attain. 4.3 Relying on the decision in the case of Indra Sawhney vs. Union of India., reported in AIR 1993 SC 477., she would submit that the Page 6 of 13 Downloaded on : Fri Jul 08 21:44:03 IST 2022 C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022 methodology is in accordance with the law laid down by the Hon'ble Supreme Court since PH category falls under horizontal reservation. She would therefore submit that applying 10% deduction by lowering the Cut-
Off marks the disabled candidates is not illegal and in accordance with the stipulations prescribed for horizontal reservation providing for 10% relaxation since the petitioners did not meet the Cut-Off marks, they did not get the choice of their posts which cannot be questioned as being bad. 5 Having considered the submissions made by the learned counsels for the respective parties, there cannot be any dispute with regard to the position of law as enunciated by the decisions cited by the learned counsel for the petitioner. In accordance with the provisions of the Disability Act, number of posts have to be identified. The reservation for persons with disabilities is horizontal and the vacancies for such persons shall be maintained as a separate class. In accordance with this stipulation the advertisement has made the mandatory reservation of posts. Reading the notification dated 04.07.2019, would indicate that in accordance with Clause I-(6) of the advertisement, physically disabled candidates have been considered under their respective category after relaxing upto 10% marks of the qualifying standard fixed for their respective category. The P.D candidates who have attained the relaxed qualifying standard within the category are rearranged in the order of merit of disabled category. Page 7 of 13 Downloaded on : Fri Jul 08 21:44:03 IST 2022 C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022 While considering for a post, special reference has been made to the preference of posts given by the candidate, applicable disability level and type of disability for the post, 10% relaxed qualifying standard of the cadre post within the respective category and cadres -wise posts reserved for P.D candidates as provided in the recruitment advertisement. It will be relevant to produce para 5(a) to (e) of the Notification read as under:
"5[A] PD (Physically Disabled) Candidates have been considered under their respective category after relaxing upto 10% marks of the Qualifying Standard fixed for their respective category. The PD candidates who have attained the relaxed qualifying standard within the category are re-arranged in the order of merit of disabled category. While considering for a post, special reference has been made t the preference of posts given by the candidate, applicable disability Level & Type of disability for the post, 10% relaxed qualifying standard for the cadre post within the respective category and cadre-wise posts reserved for PD candidates as provided in the Recruitment Advertisement. All such candidates are accommodated against the reserved posts for disabled candidates, in their respective categories.
(B) The candidate under Ex-Serviceman category has been considered under his respective category after relaxing upto 10% marks of the Qualifying Standard fixed for his respective category.
While considering for a post, special reference has been made to the preference of posts given by the candidate, applicability to the post, 10% relaxed qualifying standard for the cadre post within the respective category and cadre-wise posts reserved for Ex- Serviceman Category candidates as provided in the Recruitment Advertisement.
(C) As per the instruction of circular No. CRR-1096-2213-G.2, Dated: 31.08.2004 of General Administration Department & O.O No. NAVAN-1095-206-Part-V-R&D, dated 20/07/2015 of the Commission, the result of the widow candidates is prepared after addition of Bonus Mark in the applicable stage of Examination Process, Bonus Marks is 5% marks of the obtained marks by the candidates.
Page 8 of 13 Downloaded on : Fri Jul 08 21:44:03 IST 2022 C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022 (D) In case of equal marks, the merit was assigned taking into consideration the date of birth (i.e. preference is given to the elder).
(E) The result is prepared following the ratio laid down by the following judgements of the Hon'ble Supreme Court"
(I) Rajesh Kumar Daria v/s. Rajasthan Public Service Commission, - Civil Appeal Nos. 3132 of 2007, 3773 of 2007 decided on 18.07.2007.
(ii) Public Service Commission, Uttaranchal V/s. Mamta Bist & Ors., Civil Appeal Nos. 5987 of 2007 with Civil Appeal No. 5982 of 2007 decided on 03.06.2010.
(iii) Union of India v/s. Ramesh Ram and Others - Civil Appeal Nos. 4310, 4311 of 2010 [arising out of SLP(c) Nos. 13571-72 of 2008]."
6 The notification refers to a decision of the Apex Court in the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission, wherein, it was held that reservations in favour of physically handicapped can be referred to as horizontal reservations. Horizontal reservation cuts across the vertical reservations - what is called interlocking reservations. To be more precise, suppose three percent of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause -I of Article 16. The persons selected against the quota will be placed in that quota by making necessary adjustments. Even in the case of Indra Sawhney (supra), the Apex Court in para 95 held as under:
"95. We are also of the opinion that this rule of 50% applies only to reservation 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 Page 9 of 13 Downloaded on : Fri Jul 08 21:44:03 IST 2022 C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022 reservations, 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 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-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 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 out 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 be applicable to exemptions, concessions or relaxations, if any, provided to 'Backward Class of Citizens' under Article 16(4)."
6.1 Para 16 of the notification reads as under:
"16. While going through the process of recruitment, total 04 General category Disabled candidates, bearing E. Nos. 773, 213, 539 and 911 (at overall rank Nos. 340, 505, 554 and 648 respectively) were available for consideration for selection, after relaxing up to 10% marks of the Cut - off marks fixed for General category. While considering for the allotment of the posts, special reference has been made to the preferences of the posts given by the candidates, applicable disability level and type of disability for the post and cadre-wise posts reserved for the disabled candidates, as provided in the advertisement.
While going through the process of cadre-wise allotment of the posts to these candidates, 10% marks of the Cut -Off Marks for Page 10 of 13 Downloaded on : Fri Jul 08 21:44:03 IST 2022 C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022 each cadre was taken in to consideration along with their preference and posts reserved for their respective categories and notified in the advertisement.
(a) While considering cadre wise allocation of GAS cadre posts to General Disabled Male candidates, all the 17 GAS cadre posts of General Male category are allocated, in order of merit and the Cut-off Marks for GAS cadre posts of General category is derived, which is 486.25 marks. Then after subtracting 10% Marks from the Cut-off Marks for GAS cadre, the Cut-off Marks for GAS cadre for the Disabled candidates (General) is derived i.e. 437.62 Marks (i.e. 486.25 - 48.63 = 437.62 Marks). The General Disabled Male candidate at Merit No.237 (E. No. 773) has obtained total 440.75 Marks i.e. above 437.62 Marks and hence, he has been allocated / accomodated in the GAS cadre post (i.e. his first available preference).
(b) While considering cadre wise allocation of Section Officer (Sachivalay), cadre post to General Disabled Male Candidates, all the 06 S.O cadre posts of General Category (Common) are allocated, in order of merit and the Cut-Off Marks for S.O cadre posts of General Category is derived, which is 472.75 marks. Then after subtracting 10% Marks from the Cut-off Marks for S.O cadre, the Cut-of Marks for S.O cadre for the Disabled candidate is derived i.e. 425.47 Marks (472.75 - 47.28 = 425.47 Marks). The General-Disabled Male candidate at Merit NO. 246 (E.No. 213) has obtained total 431.50 Marks i.e. above 425.47 Marks and hence, he has been allocated / accomodated in the S.O. (Sachivalay) cadre post (i.e. his second preference).
(c) While considering cadre wise allocation of S.T.O cadre posts to General Disabled Candidate, all the 15 S.T.O cadre posts of General category (Common) are allocated, in order of merit and the cut-Off Marks for S.T.O cadre posts of General category is derived, which is 456.75 Marks. Then after subtracting 10% Marks from the Cut-off Marks for S.T.O cadre, the Cut-off Marks for S.T.O cadre for the Disabled candidates is derived i.e. 411.07 Marks (456.75 - 45.68 = 411.07 Marks). The General category disabled Male candidate at Merit No.247 (E.No. 539) has obtained total 428.75 Marks i.e. above 411.07 Marks and hence, he has been allocated / accomodated in the S.T.O cadre post (i.e. his first available preference).
(d) While considering cadre wise allocation of T.D.O cadre posts to General Disabled candidates, all the 11 T.D.O cadre posts of General category are allocated, in order of merit and the Cut-off Marks for T.D.O. cadre posts of General category Page 11 of 13 Downloaded on : Fri Jul 08 21:44:03 IST 2022 C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022 is derived, which is 459.50 marks. Then after subtracting 10% Marks from the Cut-off Marks for T.D.O cadre, the Cut-off Marks for T.D.O cadre for the General Disabled candidate is derived i.e. 413.55 marks (459.50 - 45.95 = 413.55 Marks). The General category Disabled candidate at Merit No. 251 (E.No.911) has obtained total 423.25 Marks i.e. above 413.55 Marks and hence, he has been allocated / accomodated in the T.D.O cadre post (i.e. his first available preference).
7 What is therefore evident is that the submission of the learned counsel for the petitioner that the physically handicapped category has to be treated as a separate class is misconceived. The physically handicapped category is a category within the horizontal reservation concept and therefore interlocks with vertical reservation. It is in light of this principle that they are considered against posts of their respective social category after relaxing upto 10% marks of the qualifying standard fixed for their respective social category. The description with regard to the result and their preferences set out in the tabular form in the affidavit in reply reads as under:
Name Caste M/F Type of Total Regular Cut off PH Cut off Allotment as Is Typye of Remarks why the first preference Disability Obtained of the Respective (10% Relax) per result disability is not available to the petitioner Marks Category applicable to the post?
Soni Gener M LV 423.25 452.75 423.25 TDO Yes For GAS cadre the cut
Jagdis al off marks of the
h category is 487.25 and
Kumar 10% relaxed arrived at
Ajay 438.25. The petitioner
Kumar do not attain this level
hence not eligible as
prayed for
Hetal Gener M BL 431.50 452.75 423.25 S.O(sac Yes For Assistant
Kumar al hivalay) Commissioner,
B Commercial Tax
Patel cadre the cut-off mark
of the category is
485.75 and 10%
relaxed arrived at
437.18. The petitioner
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C/SCA/14425/2019 CAV JUDGMENT DATED: 08/07/2022
do not attain this level
hence not eligible as
prayed for.
7.1 Reading thereof would indicate that while going through the
process of cadre wise allottment of posts, 10% relaxed marks of the qualifying standard for each cadre was taken into consideration along with their preference and posts reserved for them and notified. The P.H candidates who have attained at least the relaxed qualifying standard for the post within the category are rearranged in the order of merit of disabled category. While considering for a post, special reference has been made to the preference of posts given by the candidate, applicable disability Level and Type of disability for the post and cadre-wise posts reserved for P.H candidates as provided in the advertisement. 7.2 Reading sec. 33 of the Disability Act makes it clear that it provides for identification of posts for reservation.
8 The petitioners having secured less merit in their respective social category after availing of 10% relaxation on the basis of their horizontal reservation, and being accordingly allotted the posts as per their merit, cannot be faulted. Accordingly, the petition is dismissed.
(BIREN VAISHNAV, J) Bimal Page 13 of 13 Downloaded on : Fri Jul 08 21:44:03 IST 2022