Rajasthan High Court - Jaipur
Dayanand Sharma vs State Of Raj & Anr on 21 December, 2011
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan
Jaipur Bench
**
Civil Writ Petition No.3599/2005
Dayanand Sharma Versus State & Ors
Date of Order ::: 21/12/2011
Hon'ble Mr. Justice Ajay Rastogi
Mr. Anupam Agrawal, for petitioner
Mr. SN Kumawat, Addl. Adv. Gen for respondents-State & PSC Instant petition has been filed by petitioner who is physically challenged person, claiming appointment based on his participation in process of selection for the post of Teacher Gr.III held by Raj. Public Service Commission ("RPSC") pursuant to advertisement dt. 02/06/2004.
Posts of Teacher Gr.III (Primary & Upper Primary School) is included in Schedule appended to Rajasthan Panchayatiraj Rules, 1996 ("Rules, 1996") were advertised by RPSC vide advertisement dt.02/06/2004 declaring 753 vacancies reserved for physically challenged persons ("PCP"). Corrigendum was also issued providing reservation to women, ex-servicemen etc. Under advertisement (supra), there was a specific mention that 3% of total vacancies determined shall remain reserved for physically challenged persons. Vacancies were determined district-wise; accordingly bifurcation of vacancies of each category on district wise basis has been mentioned in the advertisement.
Petitioner who belongs to General category, being physically challenged submitted application pursuant to advertisement dt. 02/06/2004 & in the process of selection secured 112 marks. Case set up by petitioner is that against 3% reserved quota (PCP) vacancies, it comes to 1018 and that was admittedly not filled and petitioner being physically challenged is entitled to be considered for appointment against the vacancies earmarked for physically challenged persons like petitioner (PCP).
In reply to the writ petition filed by respondents-PSC it has been inter-alia averred that after due determination of vacancies, 3% reserved quota (which is horizontal reservation) for PCP, has been filled and last person having secured 114 marks in the reserved (PCP) category was considered while admittedly the petitioner secured only 112 marks and no one lower in the merit has been considered for appointment against his reserved category amongst those having participated in the process of selection impugned.
It has come on record that after vacancies were initially advertised for 25712 and later on it was increased to 33936 & accordingly vacancies reserved for physically challenged persons stood revised from 753 to 831. It has also come on record that against vacancies available for physically challenged persons, total 939 vacancies were filled.
Counsel for respondents informed that after the process of selection in reference to advertisement, 2004, further selections being held in the years 2006 & 2008, attained finality as regards process held by RPSC.
Counsel for petitioner submits that 3% of vacancies are reserved for disabled persons and there cannot be any further reservation on the basis of class, creed or religion and being a special class cannot be bifurcated into vertical reservation of other reserved category of SC/ST/OBC, and that is contrary to the settled principles of law. In support, counsel placed reliance upon judgment of Apex Court in Mahesh Gupta Vs. Yashwant Kr Ahirwar (Civil Appeal No.3984/2007 arising out of SLP (Civil) No.16291 of 2004) & Cognate cases decided on 30/08/2007.
Per contra, Government Counsel submits that admittedly reservation claimed by petitioner is horizontal and such horizontal cut across vertical reservation and this what is called as inter-locking reservation and such of persons being selected against horizontal reservation have to be placed in their respective category; and this what the Apex Court held in Indra Sawhney Vs. Union of India (1992 (Supp)(3) SCC 215=AIR 1997 SC 477), and further affirmed in Rajesh Kr. Daria Vs. RPSC (2007(8) SCC 785) and PSC Vs. Mamta Bisht (2010 (12) SCC 204).
This Court has considered rival contentions made at the bar and with their assistance examined material on record. However, it is an admitted position having come on record that last person in reserved category of physically challenged person & being considered for appointment secured 114 marks while petitioner secured 112 marks. It is not the case of the petitioner that any person lower in merit or in the marks secured in reserved category (Gen.) of Physically challenged person has been considered by the respondents for appointment pursuant to impugned advertisement.
Difference between horizontal & vertical reservations has been extensively examined by Apex Court in Indra Sawhney Vs. Union of India in para 812 (1992 Supp(3) SCC p.735) ad infra:
812. 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 'vertical reservations' & 'horizontal reservations'. The reservations in favour of Scheduled Castes, Schedule Tribes & 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 interlocking 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 belonged to SC category, he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustment. 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 how these reservation are worked out in several States and there is no reason not to continue that procedure.
This was further considered by Apex Court in Rajesh Kr. Daria Vs. RPSC (2007(8) SCC 785) in para 9 ad infra:
"9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, STand OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are "horizontal reservations".Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney (1992 Supp (3) SCC 217), R.K. Sabharwal v. State of Punjab (1995(2) SCC 745), Union of India v. Virpal Singh Chauhan (1995(6) SCC 684) and Ritesh R.Sah v. Dr.Y.L.Yamul (1996(3) SCC 253). But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women." (Emphasis added) It was further affirmed by Apex Court in PSC Vs. Mamta Bisht (2010 (12) SCC 204) and after placing reliance upon observations made in para 9 of earlier judgment in Rajesh Kr. Daria Vs. RPSC (supra) it was held that social reservation in favour of SC/ST/OBC U/Art.16(4) are vertical reservation and as regards special reservation for physically challenged persons & women U/Art. 16(1) or 15(3), such are horizontal reservations and such of special reservations if selected on merits within vertical reserved quota will be counted against quota of horizontal reservation which is special reservations of women or physically challenged etc. It has also been observed by Apex Court that such of special reservation being provided within social reservation for SC/ST/OBC, proper procedure is first to fill up the quota for vertical reservation in order of merit and then to find out number of candidates among them who belong to special reservation group of reserved class like women & handicapped etc., and if number of horizontal reserved candidates in such list is equal to or more than number of special reservation quota then there is no need for further selection towards special reservation quota.
Respondents have come out with a specific case before this court that initially, vacancies reserved for PCP was 753 and that was increased to 831 but total vacancies filled of PCP category with reference to advertisement-2004 in question were 939 and admittedly, last candidate having been selected was physically challenged person, claimed appointment against horizontal reservation, in general category had secured 114 marks while petitioner secured 112 marks. If there were good number of persons available and entitled to seek in horizontal reservation and are duly represented in their respective category of vertical reservation, only the balance was to be filled up from horizontal reservation; as such horizontal reservation cut across vertical reservation which is called inter-locking reservation and this what the Apex Court observed in Indra Sawhney's case (supra).
It is not the case of the petitioner that adequate number of candidates from quota (horizontal reservation) of physically challenged persons are not being represented in their own respective category (vertical reservation) having participated pursuant to advertisement, 2004 in question. In the opinion of this Court, there appears to be no error being committed by respondents in filling up vacancies of reserved quota (PCP) being horizontal reservation in accordance with law laid down by Apex Court (supra).
Submission made by Counsel for petitioner that it is a special reservation quota; therefore, vacancies have to be filled after it being carved out of 3% of total vacancies determined irrespective of class & creed, is of no substance and in the light of judgment of Apex Court (supra) it is not legally sustainable.
Judgment of Apex Court in Mahesh Gupta Vs. Yashwant Kr.Ahirwar (supra) on which Counsel for petitioner placed reliance is not applicable and it was a case of special drive for filling up reserved posts for handicapped persons introduced by State of Madhya Pradesh vide its Circulars issued from time to time providing employment to physically challenged persons for whom special drive was launched and the Government had given 3% reservation for blind and 2% for other physically handicapped persons. Thus once the post was identified/determined only for physically challenged persons and all those were physically challenged persons and being the special drive launched by the State, to fill up vacancies for physically challenged persons alone in the light of its Circulars, the Apex Court in peculiar facts observed that in such special drive launched, selections are to be made as per order of merit and it is of no assistance to him.
That apart, in the instant case, admittedly last person being selected & recommended for appointment in reserved quota (PCP) secured 114 marks while petitioner secured 112 marks, there must be number of candidates above him who might have secured higher marks then him in reserved quota (PCP) and merely because petitioner has approached this Court, he cannot march over others who are otherwise higher in merit and are member of reserved category of PCP.
Consequently, writ petition being devoid of merit fails & is hereby dismissed. No costs.
(Ajay Rastogi), J.
K.Khatri/p10/ 3599CW2005RsrDec21.doc