Rajasthan High Court - Jaipur
Dharam Pal Yadav vs U.O.R.& Ors on 10 December, 2013
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No. 21002/2013 Dharm Pal Yadav versus University of Rajasthan & anr 10.12.2013 HON'BLE MR. JUSTICE MN BHANDARI Dr Saugath Roy - for petitioner(s) BY THE COURT:
The petitioner is aggrieved by denial of appointment on the post of Assistant Professor (ABST).
Learned counsel submits that respondent-university issued an advertisement for the post of Assistant Professor/ Associate Professor/ Professor in different subjects. The petitioner is concerned to the subject of ABST. There were 10 posts of Assistant Professors out of which 3 posts were reserved for SC category, 2 for ST and 4 for OBC plus (+) 1 for physically handicapped in OBC. The petitioner is one who is not only OBC category candidate but also physically handicapped thus entitled to the benefit of reservation. He being the only candidate, should have been given appointment as he was called for interview after short listing. The respondents have selected and given appointment to one Mr Mohit Jain respondent No.2, who is physically handicapped though no post for general category was advertised. All the 10 posts of Assistant Professor (ABST) were for reserve categories. In view of above, appointment of Mr Mohit Jain respondent No.2 becomes illegal. The petitioner should be given appointment in his place.
I have considered submission of learned counsel and perused the record.
Before coming to the facts of this case, it would be relevant to discuss legal position in regard to vertical and horizontal reservation.
The reservations are of two types; vertical and horizontal. The vertical reservation comes under Article 16(4) of the Constitution of India and is given to social backward classes like SC/ST/OBC etc. The other reservation which includes reservation to physically handicapped and female etc is horizontal in nature. The horizontal reservation has no nexus with caste(s) like SC/ST/OBC etc, rather, a candidate is given appointment and adjusted wherever and in whatever category, the post is available while arranging vertical reservation. In view of above, horizontal reservation cannot be provided in a particular category of vertical reservation. The respondents, while issuing advertisement had shown 4 posts for OBC category plus 1 post in the same category for persons with disabilities with single asterisk and at the bottom of the advertiseme signified for 'physically handicapped'. For other posts also, same asterisk has been provided for physically handicapped persons but in different categories.
It is first to be clarified that post meant for physically handicapped persons cannot be in a particular category of SC/ST/OBC. The respondents should have shown separate post/ vacancy for physically handicapped persons. In any case, their default cannot be to the benefit of the petitioner contrary to the provisions. The posts meant for physically handicapped have to be filled by horizontal reservation and cannot be shown in one of the categories of social reservation namely OBC/SC/ST etc. Even if it is shown, cannot be given to the OBC category candidate in isolation but the post meant for physically handicapped is to be filled strictly as per merit of that category and not in any of the categories of social reservation as has been held by the Hon'ble Apex Court in the case of Indra Sawhney & ors Vs Union of India & ors reported as 1992 Supp (3) SCC 217.
In view of above, if the meritorious candidate in physically handicapped category was available, denial of appointment to less meritorious person like the petitioner cannot be said to be illegal.
Learned counsel submits that application form by the general category candidates should not have been accepted by the respondents.
I find no substance in the argument because if one post for physically handicapped person is shown, then for the aforesaid post every person is entitled to submit application form irrespective of his caste subject to the only condition that the candidate must be physically handicapped. In view of above, if respondent No.2 applied for the post and selected being more meritorious than petitioner then it satisfies the reservation meant for physically handicapped person.
The other argument is that for all other posts, if the reservation for physically handicapped persons is shown in any of the categories of vertical reservation, then person of that category alone was appointed.
I have considered the submission and find that if the respondents have evolved the method of selecting physically handicapped person/s in any of the categories of social reservation then it is against the judgment of the Hon'ble Apex Court in the case of Indra Sawhney (supra) apart from constitutional provisions. It has been held that so far as social reservation is concerned, it is provided as per Article 16(4) of the Constitution, whereas, horizontal reservation is provided under Article 16(1) of the Constitution thus they cannot go together.
In view of above, if the respondents have committed illegality by selecting physically handicapped candidates from and amongst categories of vertical reservation, it cannot be perpetuated by the court.
In view of the discussion made above, I do not find any illegality in the action of the respondents in filling of one post of Assistant Professor from meritorious physically handicapped person. Hence, writ petition so as the stay application are dismissed.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-JW