Central Administrative Tribunal - Mumbai
Jadhav Priya Ratnakar vs M/O Personnel,Public Grievances And ... on 28 January, 2025
1 OA No. 702/2015
Central Administrative Tribunal
Mumbai Bench: Mumbai
OA No.702/2015
Order reserved on: 13.12.2024
Order pronounced on: 28.01.2025
Hon'ble Mr. Justice M.G.Sewlikar, Member (J)
Hon'ble Mr. Santosh Mehra, Member (A)
Jadhav Priya Ratnakar
R/o 1/B 202, Ashok Nagar,
Balkum Thane (W) - 400608
Presently working as Assistant Commissioner (P),
IRS (Customs & Central Excise),
National Academy of Customs,
Excise & Narcotics NACEN Complex Sector-29,
Near Bhavishya Nidhi Enclave,
Faridabad-121008.
....Applicant
(By Advocate: Mr. R.G.Walia)
Versus
1. Union of India
Through it Secretary,
Ministry of Personnel, P.G. & Pensions,
Department of Personnel & Training,
North Block, New Delhi.
2. Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi-110069.
3. Jaspreet Kaur,
103 B, Passi Nagar,
Pakhowal Road, Passi Nagar,
Ludhiana, Punjab-141013.
... Respondents
(By Advocate: Mr. Swetabja Mondal i/b Mr. R.A.Rodrigues)
2 OA No. 702/2015
ORDER
Per Justice M.G.Sewlikar, Member (J) The applicant has filed this OA for setting aside the order dated 14th August, 2013 (Annexure A-1) and direction to the respondents to allot her the cadre of IAS on the basis of Civil Services Examination, 2012 (CSE-2012) with all consequential benefits.
2. Applicant's case briefly stated is that she had applied for Civil Services Preliminary Examination-2012 (CSP- 2012) conducted by Union Public Service Commission (UPSC) pursuant to UPSC's examination notice dated 11th February, 2012 (Annexure A-2). She qualified CSP-2012 and she was called for Civil Services Main Examination, 2012 (CSM-2012). On declaration of result of CSM-2012, the name of the applicant was included in the list of selected candidates. The applicant was called for interview. On the basis of marks in written examination and marks obtained in interview, UPSC recommended the name of the applicant in the examination of CSE-2012. Her name figured at Sl. No.515 in All India ranking of the 3 OA No. 702/2015 CSE-2012. The final result is at Annexure A-3. The applicant is having locomotor disability. She belongs to Scheduled Caste (SC). She also belongs to physically handicapped category. The applicant has been allotted the Indian Revenue Service - Customs and Central Excise Service [IRS (C&CE)] by order dated 29th November, 2013 as an ordinary physically handicapped (PH) candidate with locomotor disability (LD) only, ignoring her claim as a PH(LD) candidate belonging to SC category. Since PH reservation is horizontal reservation, the applicant ought to have been considered as SC [PH(LD)].
3. The applicant secured 1st rank among the PH candidates belonging to SC category and 26 th rank in overall SC category. Therefore, by applying criteria of horizontal reservation, she was entitled to be allotted to the cadre of IAS in CSE-2012. However, by misinterpreting the instructions of DoP&T dated 29th December, 2005, the applicant has been allotted the cadre of IRS (C&CE) as PH candidate and not IAS as she was not considered as SC at all. The applicant, therefore, represented to Chief Commissioner of Persons with Disabilities (CCPD) via e- 4 OA No. 702/2015 mail dated 24th August, 2013. The CCPD decided the representation of the applicant and directed to consider the facts mentioned in para 3 of the order vide its decision dated 1st April, 2014. This decision was forwarded to the applicant vide covering letter dated 24th April, 2014.
4. The applicant contends that she belongs to PH(LD)/SC category. SC category is a vertical reservation and PH(LD) is a horizontal reservation cutting across the vertical reservation as held in the case of Indra Sawhney vs. Union of India, 1992 (3) SCC (SUPP) 217. In terms of this judgment and in terms of Persons with Disabilities Act (PwD Act), 3% of the vacancies have to be earmarked for PH category. The procedure delineated in the case of Anil Kumar Gupta vs. State of UP, (1995) 5 SCC 173 is as under:
(i) First fill up the OC/General/UR seats,
(ii) Fill up the quota of SC, ST and OBC in order of merit.
(iii) to find out number of physically handicapped or special reservation group of Scheduled Caste in the list of Scheduled Caste selected thereon.5 OA No. 702/2015
(iv) if the number of special reservation group, i.e. physically handicapped of Scheduled Caste are less than 3% of total Scheduled Caste selected, the requisite number of Scheduled Caste Physically Handicapped shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to special category.
5. It is further averred by the applicant that she had sent a reminder to the Secretary, DoPT that she had not received any reply from DoPT in response to her application. The DoPT sent a letter dated 1st April, 2014 (Annexure AA-1) mentioning therein that the reservation for PH category candidates is horizontal in nature and there is no reservation quota for SCs, STs and OBCs.
6. It is the contention of the applicant that DoPT has misread its own rules/OM. The applicant ought to have been considered by applying the principle of horizontal reservation in vertical reservation and should have been appointed on the post of IAS. Since this principle has not been followed, respondent No.3 has been appointed in 6 OA No. 702/2015 place of the applicant. Therefore, the applicant has filed this OA seeking following reliefs:
"8.1 Call for the records relating to the entire selection process.
8.2 Upon holding that the allotment of the applicant to the cadre of Indian Revenue Service [IRS (C&CE)] is violative of Article 14, 15(4), 16(4) and 335 of the constitution of India set aside the order dated 14.08.2013 Annexure A-1 and direct the respondents to allot the applicant to the cadre of IAS on the basis CSE 2012 with all consequential benefit including seniority and other service benefits.
8.3 costs of this application be provided for;
8.4 any other relief as in the nature and circumstances of the case may require, be granted in favour of the Applicant;"
7. The respondents filed their reply. They contend that the applicant, having a Locomotor Disability or Cerebral Palsy (LDCP) sub-category candidate of PH category, was recommended by UPSC for service allocation on the basis of CSE-2012 (Main List) declared by UPSC. The applicant had acquired rank as 515. However, after declaration of final result, UPSC declared result of one more candidate higher in merit than the applicant. The result of the said candidate was earlier withheld, and therefore, the rank of the applicant was lowered by one position and now the rank of the applicant in the list of recommended candidates is 516 instead of 515.
7 OA No. 702/2015
8. They further averred that all the candidates recommended by UPSC had to undergo a medical examination. On conducting her medical examination, she was declared a valid PH candidate under LDCP sub- category with 45% disability. The applicant was allocated to IRS (C&CE) category, as per her rank, preferences expressed for various services, vacancy at her turn in LDCP sub-category of PH category, medical status etc. They further contend that there were six vacancies in IAS in CSE-2012 reserved for PH candidates, 2 each for VI, LDCP & HI sub-category of PH candidates. The vacancies reserved for HI or VI sub-category of PH category cannot be allocated to the PH candidates belonging to LDCP sub- category and vice versa. These six vacancies were allocated to PH candidates in their respective sub-categories. The details of these candidates are as under:
S. Rank Name Category PH
No. subcategory
1. 40 Mr. Manish Kumar General LDCP
2. 364 Mr. Anand Sharma General LDCP
3. 39 Ms. Shailaza Sharma General VI
4. 57 Mr. Aman Gupta General VI
5. 176 Mr. Kulange Vijay Amruta O.B.C. HI
6. 846 Mr. Pawar Narsing General HI
Sambhaji
8 OA No. 702/2015
9. They further contend that the applicant belongs to SC category. There were 180 vacancies to be filled up in IAS in CSE-2012 (i.e. 94-UR, 45-OBC, 28-SC and 13-ST). The 28 vacancies in IAS reserved for SC category candidates were allocated to following 28 candidates belonging to SC category candidates:
S. Rank Roll Name of the Category Service No. Number candidates
1. 77 123518 MS. SNEHAL R S.C. IAS
2. 79 156968 MR. VIKAS KUNDAL S.C. IAS
3. 112 301077 MS. HARSHITA S.C. IAS MATHUR
4. 135 359524 MR. AJAY KUMAR S.C. IAS
5. 142 2573 MR. PRADEEP S.C. IAS DAHIYA
6. 210 325934 MR. AMRITH S P S.C. IAS
7. 229 37657 MR. AVINASH S.C. IAS KUMAR
8. 245 257106 MS. KIRAN KUMAR S.C. IAS PASI
9. 276 21497 MR. LAKHMISHA G S.C. IAS
10. 314 11019 MR. ALOK RANJAN S.C. IAS
11. 340 102712 MS. CHANDRAKALA S.C. IAS JU
12. 391 110960 MR. GOSAVI S.C. IAS HARSHIT PRUTHWIRAJ
13. 393 80296 MR. ARUN MAHESH S.C. IAS BABU MS
14. 412 256130 MR. SIVA SANKAR S.C. IAS LOTHETI
15. 413 443057 MR. SANDEEP G R S.C. IAS
16. 445 175682 MR. HEMRAJ S.C. IAS BAIRWA
17. 455 207691 MR. INDRAJEET S.C. IAS SINGH CHANDRAWAL 9 OA No. 702/2015
18. 460 130396 MR. JAGDISH S.C. IAS SONKAR
19. 474 183578 MR. VISHESH S.C. IAS SARANGAL
20. 479 442735 MR. GAWANDE S.C. IAS PRADEEP KESHAORAO
21. 487 260355 MS. RANJITA S.C. IAS
22. 498 437319 MS. RICHA S.C. IAS
23. 499 10139 MR. ANSH DEEP S.C. IAS
24. 547 18205 MR. GAVALI PARAG S.C. IAS HARSHAD
25. 589 106711 MR. SUNIL KUMAR S.C. IAS VERMA
26. 604 275481 MR. RISHI KUMAR S.C. IAS
27. 609 192688 MR. JEEVAN B S.C. IAS
28. 619 373206 MS. JASPREET S.C. IAS KAUR
10. They contend that the applicant has availed herself of reservation for PH candidate qualifying in the said examination. Therefore, applicant could be considered only for those services/posts earmarked for physically handicapped candidates. She could not be considered for services/posts earmarked for Non-PH General/OBC/SC/ ST category for the following reasons:
a) Applicant did not qualify the examination in general merit. She was recommended after relaxing the general standards. Therefore, she cannot be considered against vacancies/posts earmarked for Non-PH or identified posts for PH candidate earmarked for other categories.10 OA No. 702/2015
b) Applicant has no claim for consideration against vacancies earmarked for non-PH, UR, SC, ST and OBC categories just as SC and ST category candidates have no claim for consideration against OBC vacancies or General vacancies and OBC category candidates have no claim for SC, ST or General vacancies.
c) Applicant was recommended for appointment on the basis of her claim for belonging to physically handicapped category and in view of availability of PH vacancies.
Without the claim of belonging to physically handicapped category, the applicant would be required to fulfil the minimum physical requirement stipulated in the CSE Rules in which she would have failed to qualify, given her disability. As applicant was not meeting the minimum physical requirement required for a non-PH candidate, she was not eligible for non-PH vacancies. She, therefore, cannot claim parity with non-PH candidates.
11. Her claim was rejected on the basis of judgment of Hon'ble Supreme Court in the case of Union of India and another vs. National Federation of the Blind & Ors., Civil Appeal No.9096/2013 decided on 8 th October, 2013. 11 OA No. 702/2015 In view of law laid down by the Hon'ble Supreme Court in the case of Rajesh Kumar Daria & Ors. Vs. Rajasthan Public Service Commission & Ors., (2007) 8 SCC 785 and law laid down by Hon'ble Supreme Court in the case of Union of India vs. National Federation of the Blind (supra), the applicant who belongs to LDCP sub-category of PH category can be adjusted only against the vacancies reserved for LDCP category irrespective of her own SC category. Applicant cannot claim allocation against a vacancy for Non-PH, UR, SC or ST category or HI & VI, in terms of Rule 21 of Civil Services Examination Rules-2016. They, therefore, prayed for dismissal of the OA.
12. Applicant filed rejoinder. Applicant contends in the rejoinder that as per para 19 of DoPT OM dated 29th December, 2005, DoPT has to maintain a roster for PH (LCPD/VI/HI) against reservation of SC/ST/OBC/General categories. DOPT has not maintained the roster in the letter and spirit of para 19 of OM dated 29th December, 2005. No seats have been earmarked and allotted against reservation of SC/ST/OBC/General. The roster has allocated 2 seats for each category VI/LDCP/HI without 12 OA No. 702/2015 considering their vertical category. The service allocation was done as per her preference and rank. Her All India rank was 516, SC rank 26 and PH(LDCP) rank 5 and SC- PH rank 1. Since there were 28 IAS seats in SC category, as per procedure laid down by Hon'ble Supreme Court in para 18 of the case of Anil Kumar Gupta (supra), she ought to have been allotted IAS. SC/ST and the General candidates are not similarly circumstanced and thus treated differently in normal situation. Therefore, clubbing of the PH belonging to SC/ST and General category as homogeneous group for purpose of service allocation is in violation to Article 14. When applicant qualifies as PH, it does not take away her belongingness to SC category. Hence, she rightly claims her reservation as SC-PH candidate. Applicant is claiming 3% reservation in SC category according to para 19 of DoPT OM dated 29th December, 2005.
13. She contends that the physical requirement for IRS is more onerous than that of physical requirement for IAS. In para 13 she has given the physical requirement for IAS and IRS (C&CE) as follows:
13 OA No. 702/2015
Sr. Name of the Service Category(ies) for *Physical No. which identified requirements 1 Indian (i) Locomotor S,ST,W,SE, H, Administrative disability RW Service (ii) Visual Impairment
(iii) Hearing Impairment 2 Indian Revenue (i) Locomotor S,ST,W,SE, H, Service (Customs disability RW and Central Excise)
(ii) Visual Impairment S, ST,W, BN,
(iii) Hearing L,SE,MF, RW, Impairment H,C
14. Thus, she meets physical requirement for IAS. No other point is raised in the rejoinder.
15. The respondents have filed reply to rejoinder. In the sur-rejoinder the respondents contend that para 14 of the OM dated 29th December, 2005 has been amended vide OM dated 3rd December, 2013. They further contend that the sole criteria for the benefit of preference of service to a candidate of PwD category is that he belongs to PwD category and for this purpose the PwD category is a homogenous category in itself. Rule 17 of Civil Services Examination does not allow the PwD candidate for their allocation against non-PH vacancies. The said issue is sub judice before the Hon'ble Supreme Court of India in CA No.3303/2015 titled as Union of India & Ors. Vs. Pankaj 14 OA No. 702/2015 Kumar Srivastava & Ors. No other point is raised in the sur-rejoinder.
16. We have heard the learned counsel for the applicant and learned counsel for respondents.
17. Leaned counsel for the applicant submitted that the applicant belongs to SC category and she is physically handicapped too. As per the judgment of Hon'ble Supreme Court in the matter of Anil Kumar Gupta (supra), the Hon'ble Supreme Court has laid down the procedure for dealing with horizontal reservation. Vertical reservation is with respect to caste, i.e. SC/ST/OBC/General and horizontal reservation cut across the vertical reservation. The respondents did not follow the procedure prescribed by the Hon'ble Supreme Court in the matter of Anil Kumar Gupta (supra). If the respondents had followed this procedure, the applicant would have been allocated the post of IAS. He submitted that the same principle had been followed in Rajesh Kumar Daria (supra) and Saurav Yadav and others vs. State of Uttar Pradesh and others, (2021) 4 SCC 542. He contended that the respondents have not maintained the roster at all, and therefore, the 15 OA No. 702/2015 respondents did not follow the principles of law laid down by the Hon'ble Supreme Court in the matter of Anil Kumar Gupta (supra).
18. Learned counsel for respondents submitted that the applicant appeared for the preliminary examination. She could succeed in preliminary examination as standard of marks was relaxed by the competent authority since the applicant belongs to PH(LD). Therefore, the applicant could appear for the main examination. She could not have been qualified for main examination but for the relaxation given in the preliminary examination. And therefore, the applicant ought to be considered in PwD category only and not in SC/PH(LD) category. He submitted that Rules 16 & 17 of the Civil Services Examination Rules do not permit the respondents to consider the applicant in non-PH(LD) category. He submitted that the concession obtained by the applicant in preliminary examination has to be continued in the main examination. Because of these two provisions, the applicant cannot be considered for non- PH(LD) category. The applicant had given preference in PH(LD) category, and therefore, she was considered in 16 OA No. 702/2015 PH(LD) category only. To buttress his submission, he has placed reliance on the case of Union of India and another vs. National Federation of the Blind and ors. (supra). He contended that there is delay. The delay is not of six months but it is of more than 1½ years. Therefore, OA deserves to be dismissed only on the ground of delay.
19. At the outset, we would like to mention that application for condonation of delay has been allowed vide order dated 21st December, 2023.
20. We have given thoughtful consideration to the submissions made by the learned counsel for the respective parties.
21. It is not in dispute that the applicant belongs to SC and she belongs to PH(LD) category. In the case of Indra Sawhney (supra), Hon'ble Supreme Court has explained the concept of vertical reservation and horizontal reservation. Vertical reservation is caste based, i.e., SC, ST, OBC and General. Horizontal reservation cuts across the vertical reservation. In the case of Indra Sawhney 17 OA No. 702/2015 (supra), Hon'ble Supreme Court has held in para 812 as under:
"812. ....... There are two types of reservations, which may, for the sake of convenience, be 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 that 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."
22. From this pronouncement of Hon'ble Supreme Court, it is clear that the PH candidate can be placed in the SC category, if he belongs to SC category and if he belongs to OC category/General category, he will be placed in that category by making adjustments. Relying on the case of Indra Sawhney (supra), Hon'ble Supreme Court in the case of Anil Kumar Gupta (supra) has held thus:
18 OA No. 702/2015
"20. ........The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an over-all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom."
23. From this, the steps which the competent authority has to take for applying special reservation/horizontal reservation are as under:
(i) First fill up OC/General/UR seats. (ii) Secondly, fill up the quota of Scheduled Caste
(Social/Vertical reservation) in order of merit.
(iii) Find out number of physically handicapped or special reservation group of scheduled caste in the list of Scheduled Caste selected thereon.
(iv) If the number of special reservation group, i.e., physically handicapped of scheduled caste are less than 3% of total Scheduled Caste selected, the requisite number of Scheduled Caste Physically Handicapped shall have to be taken by deleting the corresponding number of 19 OA No. 702/2015 candidates from the bottom of the list relating to Scheduled Castes.
24. Similar principle has been laid down in the case of Rajesh Kumar Daria (supra). In the case of Saurav Yadav (supra) in para 23.11, the Hon'ble Supreme Court has held thus:
"23.11. The High Court then laid down:-
"56. For the future guidance of the State Government, we would like to explain the proper and correct method of implementing horizontal reservation for women in a more lucid manner.
"PROPER AND CORRECT METHOD OF IMPLEMETING HORIZONTAL RESERVATION FOR WOMEN.
No. of posts available for recruitment. ..... 100
Social Reservation quota (49%)
Open Competition (OC) ..... 51
Scheduled Caste (SC ) ..... 12
Scheduled Tribe (ST) .....17
Socially and Educationally
Backward Classes (SEBC) .....20
Horizontal Reservation for Women (33% in each of the above categories) OC ..... 17 SC .... 04 ST .... 06 SEBC .... 07 20 OA No. 702/2015 Step 1: Draw up a list of at least 100 candidates (usually a list of more than 100 candidates is prepared so that there is no shortfall of appointees when some candidates don't join after offer) qualified to be selected in the order of merit. This list will contain the candidates belonging to all the aforesaid categories.
Step 2: From the aforesaid Step 1 List, draw up a list of the first 51 candidates to fill up the OC quota (51) on the basis of merit. This list of 51 candidates may include the candidates belonging to SC, ST and SEBC.
Step 3: Do a check for horizontal reservation in OC quota. In the Step 2 List of OC category, if there are 17 women (category does not matter), women's quota of 33% is fulfilled. Nothing more is to be done. If there is a shortfall of women (say, only 10 women are available in the Step 2 List of OC category), 7 more women have to be added. The way to do this is to, first, delete the last 7 male candidates of the Step 2 List. Thereafter, go down the Step 1 List after item no. 51, and pick the first 7 women (category does not matter). As soon as 7 such women from Step 1 List are found, they are to be brought up and added to the Step 2 List to make up for the shortfall of 7 women. Now, the 33% quota for OC women is fulfilled. List of OC category is to be locked. Step 2 List list becomes final. Step 4: Move over to SCs. From the Step 1 List, after item no. 51, draw up a list of 12 SC candidates (male or female). These 12 would also include all male SC candidates who got deleted from the Step 2 List to make up for the shortfall of women. Step 5: Do a check for horizontal reservation in the Step 4 List of SCs. If there are 4 SC women, the quota of 33% is complete. Nothing more is to be done. If there is a shortfall of SC women (say, only 2 women are available), 2 more women have to be added. The way to do this is to, first, delete the last 2 male SC candidates of the Step 4 List and then to go down the Step 1 List after item no. 51, and pick the first 2 SC women. As soon as 2 such SC women in Step 1 List are found, they are to be brought up and added to the Step 4 List of SCs to make up for the shortfall of SC women. Now, the 33% quota for SC women is fulfilled. List of SCs is to be locked. Step 4 List becomes final. If 2 SC women cannot be found till the last number in the Step 1 List, these 2 vacancies are to be filled up by SC men. If in case, SC men are also wanting, the social reservation quota of SC is to be carried forward to the next recruitment unless there is a rule which permits conversion of SC quota to OC. Step 6: Repeat steps 4 and 5 for preparing list of STs. Step 7: Repeat steps 4 and 5 for preparing list of SEBCs." 21 OA No. 702/2015
25. In Para 43 of the case of Saurav Yadav (supra), Hon'ble Supreme Court has clearly held that the procedure laid down in Tamannaben Ashokbhai Desai vs. Shital Amrutlal Nishar, 2020 SCC OnLine Guj 2592 is the correct procedure.
26. So the steps which the respondents ought to have taken was -
(i) to fill up the OC quota (50% on the basis of merit).
(ii) to fill up each of the vertical reservation quotas, i.e., SC, ST and OBC.
(iii) to find out how many candidates belonging to horizontal/special reservations have been selected on the above basis from each social category.
(iv) If it is not so, specify the requisite number of special reservation candidates shall have to be adjusted/accommodated against their respective social reservation categories or PwD categories by deleting the corresponding number of candidates therefrom.
27. Respondents did not follow this procedure. The respondents right from the beginning, i.e., from the date 22 OA No. 702/2015 the advertisement was published have treated the PH as a vertical category which is evident from the advertisement published on 11th February, 2022 (Annexure A-2). In this advertisement, the respondent No.2 (UPSC) has treated Physically Disabled category as vertical reservation. The relevant portion from advertisement (Annexure A-2) is reproduced hereunder:
"The number of vacancies to be filled on the result of the examination is expected to be supernumerary 1037. The number of vacancies mya undergo change.
Reservation will be made for candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes and Physically Disabled Categories in respect of vacancies as may be fixed by the Government."
28. Thus, the total number of vacancies was 1037 which was susceptible to change. Reservations were made for candidates belonging to SC, ST, OBC and physically disabled category in respect of vacancies as manifested by the Government. This clearly shows that instead of treating reservation as horizontal reservation in PH candidates, they were included in the category of vertical reservation. Thus, the respondents committed mistake right from the date the advertisement was published. This mistake was carried forward at every stage and that is why 23 OA No. 702/2015 the applicant could not succeed in the category of IAS. As per the judgment of Indra Sawhney (supra), Anil Kumar Gupta (supra), Rajesh Kumar Daria (supra) and Saurav Yadav (supra), it is clear that the reservation for PH candidates is a horizontal reservation. The applicant belongs to SC category, and therefore, she should have been adjusted in SC category so far as her PH status is concerned. In terms of the reply of the respondents, it is seen that the vacancies earmarked for PH candidates was 2 so far as IAS was concerned and those were filled by other candidates and that is the reason the respondents refused to allocate IAS to the applicant. The entire procedure followed by the UPSC was wrong.
29. Learned counsel for respondents placed reliance on the case of Union of India vs. National Federation of the Blind (supra). This decision of the Hon'ble Supreme Court does not help the respondents in any manner whatsoever. The issue involved in the case of Union of India vs. National Federation of the Blind (supra) was whether the identification of 3% reservation should be on the basis of 24 OA No. 702/2015 post or on the basis of vacancies. Hon'ble Supreme Court held thus:
"29) In the light of the above pronouncement, it is clear that the scope of identification comes into picture only at the time of appointment of a person in the post identified for disabled persons and is not necessarily relevant at the time of computing 3% reservation under Section 33 of the Act. In succinct, it was held in Ravi Prakash Gupta (supra) that Section 32 of the Act is not a precondition for computation of reservation of 3% under Section 33 of the Act rather Section 32 is the following effect of Section 33.
30) Apart from the reasoning of this Court in Ravi Prakash Gupta (supra), even a reading of Section 33, at the outset, establishes vividly the intention of the legislature viz., reservation of 3% for differently abled persons should have to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts. There is no ambiguity in the language of Section 33 and from the construction of the said statutory provision only one meaning is possible.
31) A perusal of Section 33 of the Act reveals that this section has been divided into three parts. The first part is "every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability." It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the Section."
30. Hon'ble Supreme Court has ruled that it has to be on the basis of the vacancies and not on the basis of posts. It has also held that the scope of identification comes into picture only at the time of appointment of a person in the 25 OA No. 702/2015 posts identified for disabled persons. Meaning thereby that it is a horizontal reservation and not a vertical reservation.
31. Now the question is whether the applicant is entitled to be allotted IAS.
32. The respondents, as indicated above, treated reservation for PH candidates as vertical reservation. This was an illegality on the part of the UPSC - respondent No.2. The applicant ought to have challenged the advertisement as being contrary to the judgment of Hon'ble Supreme Court in the case of Indra Sawhney (supra), Anil Kumar Gupta (supra) and Rajesh Kumar Daria (supra). The applicant participated in the examination knowing fully well that PwD category is treated as a vertical reservation. Not only this, on the same criteria, i.e., treating PH category as vertical reservation, she was allotted the post in IRS (C&CE). She accepted that post. In para 4.4 of the OA, the applicant has alleged that the applicant has been allotted IRS (C&CE) as an ordinary physically handicapped candidate ignoring her claim as a PHLD candidate belonging to SC category. This indicates that she accepted the post of IRS (C&CE) as an ordinary PH 26 OA No. 702/2015 candidate. She has to accept the entire procedure or reject the entire procedure. It is not permissible for any candidate to accept the procedure which suits him/her and reject which does not suit him/her. She cannot now contend that the procedure which was followed by the respondents was incorrect, so far as IAS was concerned. When she has reaped the benefits of this procedure and accepted IRS, she cannot now turn around and say that the procedure in respect of IAS was not followed properly. She cannot blow hot and cold. In addition to this, if her contentions are accepted, the entire process of examination will have to be cancelled and in such a situation, she ought to have made all the candidates who would be affected by the cancellation of entire process of examination as party.
33. So far as the contention of the respondents that the applicant was granted benefit of concession in PwD category, therefore, she became entitled to appear for main examination and she should be continued in PwD itself, does not have any force. There is no rule which mandates that in main examination the candidate has to rely on the concession she had availed in preliminary examination. 27 OA No. 702/2015 Just because she had passed the preliminary examination because of the concession afforded to her in PH category does not mean that she cannot take the benefit of horizontal reservation in SC category. In this respect, respondents placed reliance on the Rules 16 & 17 of Rules for a Competitive Examination - Civil Services Examination reads thus:
"16(1) After interview, the candidates will be arranged by the Commission in the order of merit as disclosed by the aggregate marks finally awarded to each candidate, in the Main Examination. Thereafter, the Commission shall, for the purpose of recommending candidates against unreserved vacancies, fix a qualifying mark (hereinafter referred to as general qualifying standard) with reference to the number of unreserved vacancies to be filled up on the basis of the Main Examination. For the purpose of recommending reserved category candidates belonging to Schedule Castes, Scheduled Tribes and Other Backward Classes against reserved vacancies, the Commission may relax the general qualifying standard with reference to number of reserved vacancies to be filled up in each of these categories on the basis of the Main Examination:
xxx xxx xxx
17. The minimum qualifying marks as specified under rules 15 and 16 may be relaxable at the discretion of the Commission in favour of physically handicapped candidates in order to fill up the vacancies reserved for them:
Provided that where a physically handicapped candidate obtains the minimum qualifying marks in his own merit in the requisite number for General, or the Scheduled Caste or the Schedule Tribe or Other Backward Class category candidates, then, the extra physically handicapped candidates, i.e., more than the number of vacancies reserved for them shall be recommended by the Commission on the relaxed standards and consequential amendments in the rules will be notified in due course."28 OA No. 702/2015
34. Rule 16 does not anywhere say that the marks obtained and concession given during preliminary examination shall be considered while assessing the eligibility of the candidate for IAS or any other category. Rule 17 simply says that the minimum qualifying marks as specified under Rules 15 & 16 may be relaxable at the discretion of the Commission in favour of physically handicapped candidates in order to fill up the vacancies reserved for them. It also does not say that the marks obtained during preliminary examination or the concession awarded in main examination shall be considered for assessing the eligibility of the candidate for IAS or any other category. It also does not say that the reservation shall be a vertical reservation. In this view of the matter, this contention of the respondents does not hold any water.
35. Learned counsel for the applicant vehemently submitted that the illegality can be challenged at any time. There cannot be two opinions about this proposition. The question in this case is slightly different. The applicant has accepted the benefits of the said illegality and accepted the 29 OA No. 702/2015 employment of IRS (C&CE). Therefore, she cannot challenge the process of examination now. In this view of the matter, we do not find any substance in the OA.
36. For the reasons discussed above, OA stands dismissed with no order as to costs.
(Santosh Mehra) (M.G.Sewlikar)
Member (A) Member (J)
'SD'
Digitally signed by Sunita
Sunita Dutt Dutt
Date: 2025.01.30
15:50:39 +05'30'