Rajasthan High Court - Jaipur
Nand Kishore Jajra Son Of Sh. Mana Ram ... vs Rajasthan High Court, Jodhpur on 6 October, 2023
Bench: Manindra Mohan Shrivastava, Praveer Bhatnagar
[2023:RJ-JP:24947-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No.9645/2023
Rohitash Kumar Jat Son Of Shri Sagar Mal Jat, Aged About 23
Years, Resident Of Dhani Patawali, Village Trilokpura, Post
Nayan, Tehsil Shahpura, District Jaipur (Rajasthan)
----Petitioner
Versus
1. Rajasthan High Court, Jodhpur, Through Its Registrar
General
2. Rajasthan High Court, Jodhpur, Through Its Registrar
(Examination)
3. The Registrar (Administration), Rajasthan High Court,
Jodhpur
----Respondents
Connected With D.B. Civil Writ Petition No.7405/2023
1. Amit Singh S/o Vijay Singh, Aged About 36 Years, R/o Village Shahjadpur, Post Jasai, Tehsil Mundawar, District Alwar, Rajasthan.
2. Prathvi Singh S/o Babulal, Aged About 37 Years, R/o Dholi Doob, Purani Chungi, Balaji Nagar, Alwar, Rajasthan.
3. Khurshid Khan S/o Fajru Khan, Aged About 36 Years, R/o Mundia Khera, Post Deewali, Tehsil Laxmangarh, District Alwar, Rajasthan.
----Petitioners Versus
1. Rajasthan High Court, Jodhpur, Through Registrar General.
2. The Registrar (Examination), Rajasthan High Court, Jodhpur.
----Respondents D.B. Civil Writ Petition No.8849/2023 Nand Kishore Jajra Son Of Sh. Mana Ram Jajra, Aged About 22 Years, Resident Of Dhara Ki Dhani, Khedarpura, Nagaur, Rajasthan- 341512.
----Petitioner (Downloaded on 11/11/2023 at 08:36:07 PM) [2023:RJ-JP:24947-DB] (2 of 11) [CW-9645/2023] Versus
1. Rajasthan High Court, Jodhpur, Through Registrar General.
2. The Registrar (Examination), Rajasthan High Court, Jodhpur.
----Respondents For Petitioner(s) : Ms. Sushila Kalwania, Advocate Mr. Gopesh Kumar, Advocate for Mr. Aamir Khan, Advocate Ms. Priti Bhandari, Advocate for Mr. Vaibhav Bhargava, Advocate For Respondent(s) : Mr. Rajendra Prasad, Senior Advocate assisted by Mr. Ashish Sharma, Advocate Mr. Shailesh Prakash Sharma, Advocate HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order Pronounced on 6/10/2023 (Per: Hon'ble Manindra Mohan Shrivastava, J.) By this common order, these petitions are being disposed off as the issue involved in these petitions is identical. As the question of law arising for consideration is based on similar facts, therefore, for convenience of reference, the facts stated in D.B. Civil Writ Petition No.9645/2023 are referred to.
In D.B. Civil Writ Petition No.9645/2023 filed under Article 226 of the Constitution of India, the petitioner has prayed for direction to declare the petitioner eligible and selected under Persons with Benchmark Disabilities (Deaf and Hard of Hearing) category for recruitment to the post of Junior Judicial Assistant for (Downloaded on 11/11/2023 at 08:36:07 PM) [2023:RJ-JP:24947-DB] (3 of 11) [CW-9645/2023] the establishment of Rajasthan High Court and Clerk Gr.II for Rajasthan State Judicial Academy and District Courts.
The petitioner seeks to adjudge his perceived omission on the part of the respondents to announce and declare separately the cut off marks for the physically handicapped candidates in the matter of recruitment to various posts for which recruitment was advertised vide advertisement dated 05.08.2022 published by the Rajasthan High Court.
Quint-essential facts relevant and necessary for adjudication of controversy involved in this present petition are that the respondents initiated process for recruitment to the post of Junior Judicial Assistant for the establishment of Rajasthan High Court, Clerk Gr. II of Rajasthan State Judicial Academy, Clerks in District Courts as also Clerks in Rajasthan State Legal Services Authority vide advertisement dated 05.08.2022. The recruitment provided reservation both vertically and horizontally for various categories. It also provided for horizontal reservation for persons with benchmark disabilities.
The petitioner also submitted his online application for the joint recruitment to the advertised posts under the category of OBC (NCL) and special category of Persons with Benchmark Disabilities (Deaf and Hard of Hearing). The petitioner appeared in the written examination held on 19.03.2023. Results of the aforesaid examination was declared on 01.05.2023, which disclosed that the petitioner had obtained 129.1499 marks. The petitioner was not in the list of candidates qualified for type- (Downloaded on 11/11/2023 at 08:36:07 PM) [2023:RJ-JP:24947-DB] (4 of 11) [CW-9645/2023] writing test on computer. No separate cut off marks for the candidates under the benchmark disabilities was published. Aggrieved by the aforesaid omission on the part of the respondents in not declaring the cut off marks for the category of candidates with benchmark disabilities, the petitioner filed this petition.
The submission of learned counsel for the petitioner is that the petitioner obtained 129.1499 marks, which is more than the qualifying marks of 120 prescribed by the respondents. As the respondents did not declare separate cut off marks for the OBC (NCL) category candidates with Benchmark Disabilities (Deaf and Hard of Hearing), the petitioner was illegally and wrongfully excluded from the process of selection. After completion of the process of selection at various stages which included type-writing test after the written examination conducted for short-listed candidates in various reserved category, result was declared on 11.06.2023 and none of the candidates with Benchmark Disabilities (Deaf and Hard of Hearing) category were selected.
It has been contended that had the respondents separately declared cut off marks and prepared separate category of Persons with Benchmark Disabilities (Deaf and Hard of Hearing) the petitioner and other candidates, who had secured more than minimum qualifying marks at the written examination would have become entitled for being considered on merit basis as the advertisement under Note (v) of Section (B) of Clause 15 clearly provided that Persons with Benchmark Disabilities shall be (Downloaded on 11/11/2023 at 08:36:07 PM) [2023:RJ-JP:24947-DB] (5 of 11) [CW-9645/2023] provided relaxation from the type-writing test on computer and they shall be awarded marks in computer test on the basis of average marks obtained by them in the written test with the option that if any such candidate voluntarily opts in his online application to appear in type-writing test on computer, he shall be allowed to appear in such tests. As the petitioner had opted "No" in his online application to appear in the type-writing test on computer, he was entitled to average marks on the basis of marks awarded in written examination. Thus, on account of non- declaration of cut off marks at the stage of declaring results of written examination, preparation of separate list for OBC (NCL) candidates with Benchmark Disabilities (Deaf and Hard of Hearing) the petitioner has been ousted from the process of selection which is not only against the spirit of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 2016 but also governing recruitment Rules and the provisions of the advertisement and declared process of recruitment, as rationally construed. The respondents, it is contended, have wrongly applied the Rules of horizontal reservation.
In support of the aforesaid submissions, learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court in the case of Mahesh Gupta & Ors. Versus Yashwant Kumar Ahirwar & Ors., 2007 (8) SCC 621 and a Division Bench judgment of the Madhya Pradesh High Court in the case of Saroj Dehariya Versus The State of Madhya Pradesh & Ors. W.P. 22358-2019 decided 23.07.2021.
(Downloaded on 11/11/2023 at 08:36:07 PM) [2023:RJ-JP:24947-DB] (6 of 11) [CW-9645/2023] On the other hand, learned counsel for respondents would submit that preparation of merit list at the stage of written examination has been prepared strictly in accordance with the process prescribed under the governing recruitment Rules and the advertisement. It is argued that the cut off marks of OBC (NCL) was 230.4431 whereas the petitioner had obtained 129.1499 marks in the written examination, which was much less than the minimum required marks to be qualified for consideration for the next stage of examination process. The reservation for the persons with benchmark disabilities is a horizontal reservation and not a vertical one as is prescribed for SC/ST and OBC candidates. Relying upon the observations made by the Supreme Court in the case of Indra Sawhney & Ors. Versus Union of India & Ors., 1992 (3) SCC 217, it has been argued that the reservations are to be worked out as prescribed therein which has been strictly followed. He would further submit that the process of recruitment followed by the respondents is strictly in accord with law laid down by the Supreme Court in the case of Rajesh Kumar Daria Versus Rajasthan Public Service Commission & Ors., 2007 (8) SCC 785 and Saurav Yadav & Ors. Versus State of Uttar Pradesh & Ors., 2021 (4) SCC 542 which declare the law and the manner in which horizontal reservations have to be worked out. Learned counsel for the respondents would submit that the Division Bench of this Court at Principal Seat, Jodhpur in the case of Himanshu Kachhwaha Versus Rajasthan Public Service commission, D.B. Civil Special Appeal No.445/2004 decided on 16.08.2011 and Bhuvaneshwar Singh Chauhan Versus (Downloaded on 11/11/2023 at 08:36:07 PM) [2023:RJ-JP:24947-DB] (7 of 11) [CW-9645/2023] Rajasthan Public Service Commission & Anr., D.B. Civil Special Appeal No.881/2002, decided on 16.08.2011 has clearly held that as reservation for persons belonging to physically handicapped category has been predicated to be on horizontal basis, it does not mandate preparation of a separate category for whom cut off marks are required to be declared. He would further submit that issue which has been raised in the present petition was earlier examined by the Division Bench of this Court at Jodhpur in the case of Vikram Singh Chouhan Versus State of Rajasthan & Ors., D.B. Civil Writ Petition No.3115/2014 decided on 16.05.2014, wherein it has been held that the prayer for declaring separate cut off marks for persons with benchmark disabilities cannot be accepted.
Subsequently, another Division Bench's judgment of this Court in the case of Ratanlal Versus Rajasthan High Court, Jodhpur & Anr., D.B. Civil Writ Petition No.1436/2022, has also decided on similar lines rejecting claim for declaring separate cut off marks for persons with disabled category.
After hearing learned counsel for the parties, we are of the view that the issue raised in this petition is squarely covered in series of decisions which have been referred to by learned counsel for the respondents. Relying upon two earlier decisions in the case of Himanshu Kachhwaha Versus Rajasthan Public Service Commission (supra) as also Bhuvaneshwar Singh Chauhan Versus Rajasthan Public Service Commission (supra), a Division Bench of this Court at Principal Seat, Jodhpur in the case (Downloaded on 11/11/2023 at 08:36:07 PM) [2023:RJ-JP:24947-DB] (8 of 11) [CW-9645/2023] of Vikram Singh Chouhan Versus State of Rajasthan (supra) examined identical issue where a prayer was made to declare illegal omission on the part of the recruiting agency to announce the cut off marks for the physically handicapped candidates. Taking note of the scheme of the Rules provided for horizontal reservation for persons with disabilities under Rajasthan Employment of Disabled Persons Rules, 2000 and further, taking into consideration that number of candidates to be admitted in the examination will be limited to 15 times of the total number of vacancies category-wise, placing reliance upon the decision of the Constitution Bench judgment of the Supreme Court in the case of Indra Sawhney Versus Union of India (supra), it was held that reservations in favour of Schedules Castes, Scheduled Tribes and Other Backward Classes are under Article 16(4) of the Constitution of India and classified as vertical reservation, whereas reservations in favour of physically handicapped candidates are under Article 16(1) of the Constitution of India and referable as horizontal reservations. Authoritative pronouncement of the Supreme Court in this regard that horizontal reservations cut across the vertical reservations and are thus construed as inter-locking reservations was also noted. It was so observed in the case of Vikram Singh Chouhan Versus State of Rajasthan (supra), which reads as below:-
"........It was clarified that 3% reservation of the vacancies in favour of physically handicapped persons would be one relatable to Article 16(1) and the persons selected against this quota would be placed in the appropriate category i.e. if he belongs to SC category he would be placed in that quota by making necessary (Downloaded on 11/11/2023 at 08:36:07 PM) [2023:RJ-JP:24947-DB] (9 of 11) [CW-9645/2023] adjustments and similarly, if he belongs to open competition (OC) category, he would be placed in that category by making necessary adjustments. Their Lordships enounced that after providing these horizontal reservations, the percentage of reservations in favour of OBC category should remain the same.
The above authoritative judicial edict thus clearly distinguishes these two types of reservations and the consequence attendant thereon. Patently, physically handicapped persons if selected against their quota of reserved vacancies, would eventually be placed in the appropriate category i.e. SC/ST/General/Women and would stand assimilated in those categories, so much so that the percentage of reservation in favour of backward class of citizens remains unaltered."
The conclusion arrived thereafter on such consideration was that omission to declare separate cut off marks for persons with benchmark disabilities is not illegal in view of emphatic and unequivocal exposition of law in the case of Indra Sawhney Versus Union of India (supra) distinguishing vertical and horizontal reservations in the context of the constitutional scheme therefor as enshrined in Article 16 of the Constitution of India and consequential adjustments of those availing horizontal reservations in the respective categories i.e. General/SC/ST/OBC.
Later on, another Division Bench of this Court in the case of Ratanlal Versus Rajasthan High Court, Jodhpur (supra), again repelled the contention that the respondents therein while conducting recruitment for appointment to the post in the Civil Judge Cadre were required to declare separate cut off marks for the category of persons with benchmark disability, principally relying upon the decisions of the Supreme Court in the case of Indra Sawhney Versus Union of India (supra) and Vikram Singh Chouhan Versus State of Rajasthan (supra). (Downloaded on 11/11/2023 at 08:36:07 PM) [2023:RJ-JP:24947-DB] (10 of 11) [CW-9645/2023] In view of above considerations and factual premise of the present case, the other decisions in the cases of Union of India & Anr. Versus National Federation of the Blind & Ors., 2013 (10) SCC 772, Rajeev Kumar Gupta & Ors. Versus Union of India & Ors., 2016 (13) SCC 153, and Ashok Kumar Giri Versus Union of India & Ors. 2016 (6) SCC 511, Justice Sunanda Bhandare Foundation Versus Union of India & Anr., 2017 (14) SCC 1, Anil Kumar Gupta & Ors. Versus State of U.P. & Ors., 1995 (5) SCC 173 and Indian Banks' Association, Bombay & Ors. Versus Devkala Consultancy Service & Ors. 2004 (11) SCC 1 also do not support the contentions as raised by the counsel for the petitioner in the present case.
It would thus be seen that this Court has taken consistent view on this aspect.
Reliance placed on the decisions of the Supreme Court in the case of Mahesh Gupta Versus Yashwant Kumar Ahirwar (supra) is misplaced both on facts and law. In that case, while dealing with a case relating to special recruitment drive for filling up vacant reserved posts of Scheduled Castes and Scheduled Tribes, where respondents had advertised eight posts for reserved category in Scheduled Caste and eight posts for the handicapped persons, respondents showed the reserved categories separately in the body of advertisement. Contradictory stand was taken by the respondents therein. On facts, it was found that State had adopted a policy for filling up the reserved posts for handicapped (Downloaded on 11/11/2023 at 08:36:07 PM) [2023:RJ-JP:24947-DB] (11 of 11) [CW-9645/2023] persons as special drive and therefore, such a reservation fall within clause (1) of Article 16 of the Constitution of India had nothing to do with the object and purpose sought to be achieved by the reasons of "clause (4)" thereof. In that context, it was held that a disabled is a disabled and the question of making any further reservation on the basis of caste, creed or region ordinarily may not arise as they constitute a special class.
Though the contention raised by learned counsel for the petitioner finds support from the decision of the Division Bench judgment of Madhya Pradesh High Court in the case of Saroj Dehariya Versus The State of Madhya Pradesh (supra), in the light of consistent view taken by the Division Benches of this Court in several decisions, which have been referred to and cited hereinabove, we are not inclined to take a different view on the basis of decision in the case of Saroj Dehariya Versus The State of Madhya Pradesh.
In the result, these petitions fail and are hereby dismissed. A copy of this order be placed in each connected petition. (PRAVEER BHATNAGAR),J (MANINDRA MOHAN SHRIVASTAVA),J Karan/ (Downloaded on 11/11/2023 at 08:36:07 PM) Powered by TCPDF (www.tcpdf.org)