Rajasthan High Court - Jaipur
Priti Singh vs Registrar on 29 January, 2016
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR (1) S.B. Civil Writ Petition No.10494/2015 Priti Singh Versus Registrar, University of Rajasthan Jaipur (2) S.B. Civil Writ Petition No.11768/2014 Archana Tiwari Versus Registrar, University of Rajasthan Jaipur (3) S.B. Civil Writ Petition No.403/2014 Dr. Balraj Vishnoi Versus State of Rajasthan & Ors. (4) S.B. Civil Writ Petition No.3648/2014 Dr. Balraj Vishnoi Versus State of Rajasthan & Ors. DATE OF ORDER : 29th January, 2016 HON'BLE MR. JUSTICE M.N. BHANDARI Mr. Mohit Gupta ] for petitioners Mr. Shashi Kant Saini ] Mr. A.K. Sharma, Sr. Adv. with Mr. Rachit Sharma , for respondents
These writ petitions involve common question of law thus were heard together and are decided by this order.
The University of Rajasthan invited applications for selection on the post of Professors, Associate Professors and Assistant Professors in different faculties vide advertisement dated 1st December, 2012. In all, 294 posts were advertised, out of which, eight posts were reserved for physically handicapped persons. The controversy in these writ petitions pertains to the reservation for physically handicapped candidates.
Learned counsel for petitioners submits that out of eight posts reserved for physically handicapped persons, four posts were reserved for visually handicapped candidates and four posts for locomotors disabled candidates. It is in view of the fact that no post was identified for hearing impaired candidates. All the petitioners applied for the post in different subjects and being eligible candidates, should have been given appointment against the post reserved for physically handicapped persons. Out of many petitioners, few belong to reserve category also. After selection, the petitioners were expecting their appointment but when nothing was heard from the respondents, they submitted various representations and in the case of petitioner-Balraj Vishnoi, he approached the Commissioner (Disabilities) where his complaint was dismissed.
Learned counsel appearing for petitioner-Priti Singh in S.B. Civil Writ Petition No.10494/2015 urged that she was interviewed treating her to be OBC candidate and not in the category of physically handicapped person. The right of the petitioner for consideration of her candidature against the post reserved for physically handicapped person has been infringed. When the petitioner was not selected despite her eligibility and entitlement for consideration of her candidature against the post meant for physically handicapped candidate, she made a representation to the respondents but when nothing was heard, the petitioner preferred this writ petition. The petitioner is aggrieved for violation of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short the Act of 1995) and rules made thereunder by the State of Rajasthan.
Learned counsel submitted that in the case of Vinita Nair Vs. Registrar, University of Rajasthan, Jaipur, S.B. Civil Writ Petition No.269/2014, similar issue was raised and decided by this court vide judgment dated 13th August, 2014. The only difference is that Vinita Nair was not short-listed and accordingly not called for interview thus she preferred writ petition at the initial stage itself. By interim order, the court permitted her to appear in the interview. The writ petition was thereupon decided in favour of Vinita Nair and special appeal by the University of Rajasthan was dismissed.
Learned counsel further submitted that the respondent-University has allowed shifting of the post reserved for physically handicapped persons for various subjects. It is in the light of Condition No.16 of the advertisement. In view of above, two posts lying vacant in the subjects of Botany and Public Administration should have been shifted to the post of Philosophy for giving appointment to the petitioner-Priti Singh. It is moreso when on 17th October, 2015, the Syndicate decided to shift one post of physically handicapped person from Drawing and Painting subject to ABST. In the light of the facts given above and judgment in the case of Vinita Nair (supra), the petitioner is entitled for the same benefit.
In S.B. Civil Writ Petition No.11768/2014, Archana Tiwari Vs. Registrar, University of Rajasthan, Jaipur, learned counsel for petitioner has relied on the same facts as have been given in the writ petition of Priti Singh. The only difference between two petitions is that Priti Singh belongs to reserve category, whereas Archana Tiwari is of general caste and she applied for the post of Assistant Professor (History). In both the writ petitions, learned counsel for petitioners have relied on the judgment of this court in the case of Vinita Nair (supra) apart from judgments of Apex Court in the case of Union of India & Anr. Vs. National Federation of the Blind & Ors., reported in (2013) 10 SCC 772 and in the case of Bhudev Sharma Vs. District Judge, Bulandshahr & Anr., reported in AIR 2007 SC (Supp) 1185(1). Learned counsel for petitioners has further relied on the judgments of Apex Court in the case of Mahesh Gupta Vs. Yashwant Kumar Ahirwar, reported in AIR 2007 3136, Indra Sawhney & Ors. Vs. Union of India & Ors., reported in (1992) Supp (3) SCC 217, Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors., reported in AIR 2007 SC 3127, Govt of India Th:Secy & Anr Vs. Ravi Prakash Gupta & Anr., reported in 2010 (7) SCC 626 and lastly in the case of Gosai Ram Vs. State of Raj. & Ors., S.B. Civil Writ Petition No.10982/2012, decided on 11th July, 2013 by the Principle Seat at Jodhpur.
In S.B. Civil Writ Petition Nos.403/2014 & 3648/2014, petitioner belongs to reserve caste as well as physically handicapped category. He applied for the post of Assistant Professor (Public Administration). The issue raised by him is also same as exist in other cases. Learned counsel has placed reliance on the same judgments. The prayer of all the petitioners is to direct the respondents to appoint them by considering their candidature against the post meant for physically handicapped persons.
Learned Senior Advocate Shri A.K. Sharma appearing for University of Rajasthan has contested the petitions. He submitted that in all, 294 posts of Professors, Associate Professors and Assistant Professors in various subjects were advertised. Eight posts were reserved for physically handicapped persons. In a petition preferred by Vinita Nair (supra), an interim order to keep one post vacant was passed by this court and accordingly the University considered candidature of physically handicapped persons against the remaining post. Vinita Nair approached this court well within time, whereas petitioners were sitting on the fences and preferred these writ petitions after expiry of validity period of application. One year period has expired on 1st November, 2013 itself, whereas these petitions were filed much subsequent to it thus they are not maintainable on the aforesaid ground itself.
Coming to the facts of each case, learned counsel for respondents submitted that petitioner-Archana Tiwari applied for the post of Assistant Professor (History). After shortlisting, she was called for interview where she secured total 50.88 marks. In all, eight physically handicapped candidates appeared for selection against the post of Assistant Professor (History). Harsh Singh Gehlot was selected having secured 51.66 marks. Being meritorious candidate, he was given appointment against the reserved post of physically handicapped person. The candidate having higher merit than petitioner has already been given appointment thus she cannot have any claim.
So far as post of Assistant Professor (Philosophy) is concerned, no post was advertised for the subject while issuing advertisement dated 1st November, 2012. It is however a fact that on a direction of this court in the case of Vinita Nair (supra), she was given appointment in pursuance to the judgment of Single Bench and upheld by the Division Bench of this court. SLP therein was dismissed in limine.
Learned counsel for respondents has given reference of judgment of Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi, reported in (2006)4 SCC 1. Therein, it has been held that no appointment can be made without advertisement of the post. Vinita Nair was given appointment in pursuance to the judgment of this court and similarly one Dharam Pal Yadav was also given appointment in pursuance to the directions of this court. Thus out of many posts reserved for physically handicapped persons, two posts were filled in pursuance to the judgment of this court and remaining six posts were filled from and amongst the meritorious candidates in different subjects. Now all the posts advertised for physically handicapped persons have been filled. If petitioners are given relief then it would be in addition to the post advertised by the respondents for physically handicapped persons.
Learned counsel appearing for the University has admitted about dismissal of the SLP in the case of Vinita Nair and Dharam Pal Yadav but submitted that judgments of learned Single Judge as well as Division Bench in those cases were contrary to the judgment of Apex Court in the case of Rajesh Kumar Dharia (supra). Therein, Apex Court has explained about two types of reservation which are vertical and horizontal. The vertical reservation is meant for socially backward class, whereas horizontal reservation is for other categories. How vertical and horizontal reservation is to be arranged, has been explained by the Apex Court in the case of Rajesh Kumar Dharia (supra).
I have considered the rival submissions made by the parties and perused the record carefully.
It is not in dispute that the advertisement dated 1st November, 2012 was for 294 posts of Professors, Associate Professors and Assistant Professors and out of it, eight posts were reserved for physically handicapped candidates in different subjects. It is further admitted that Para 16 of the advertisement provides for shifting/transfer of post from one subject to other, reserved for physically handicapped candidates. It can be by the selection committee according to the availability of suitable candidates without reducing total number of posts.
The first issue for consideration is as to whether posts reserved for physically handicapped candidates are proper or it should have been nine. It is for the reason that on total 294 posts, 3% comes to 8.82 and if it is rounded off, comes to nine posts. The respondents should have kept nine posts for physically handicapped persons after rounding off. It is however a fact that none of the petitioners challenged the advertisement on the aforesaid ground before participation in the selection or atleast before declaration of result. They were aware about the fact that only eight posts have been reserved for physically handicapped persons. All the petitioners thus appeared in the selection without protest to the terms of the advertisement and challenge was made when they were not selected and given appointment. In the background aforesaid, I am unable to accept the grievance of the petitioners for keeping only eight posts for physically handicapped persons instead of nine. It is moreso when the University has already filled the post from and amongst eligible candidates, as stated by learned counsel for respondents except that one candidate Rajesh Kumar selected in the subject of Public Administration has not joined the post. It is settled law that if challenge to the terms of advertisement for selection is not made by a candidate on or before declaration of result, he/she is estopped to challenge it subsequently. It is moreso when one post given to other category has already been filled and the candidate so appointed is not before this court. The view aforesaid is supported by the judgment of Apex Court in the case of Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand & Ors., reported in (2011) 1 SCC 150 apart from judgment in the case of Dhananjay Malik & Ors. Vs. State of Uttaranchal & Ors., reported in (2008) 4 SCC 171. In view of above and taking into consideration the prayer made in the writ petitions, first argument raised by learned counsel for petitioners cannot be accepted.
The other argument raised by learned counsel for petitioners is in regard to violation of Section 33 of the Act of 1995. It is submitted that after identification of the post for physically handicapped persons as per Section 33 of the Act of 1995, it cannot further be bifurcated in the category of SC and ST or OBC. The post meant for physically handicapped category is to be shown separately.
The argument aforesaid has substance. It is for the reason that two types of reservation exist. One is vertical and other is horizontal. The vertical reservation is provided for socially backward classes, whereas, horizontal reservation is for other categories i.e. for women, handicapped and ex-service personnel, etc. The two categories of reservation operate separately. The social reservation is vertical. The horizontal reservation is separate so as its application while providing appointment. It has been properly explained by the Apex Court in the case of Rajesh Kumar Dharia (supra). The relevant Para 9 of the said judgment is quoted thus:
9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and 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 numbers will not be counted against the quota reserved for the 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 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 - Indira Sawhney (Supra), R. K. Sabharwal vs. State of Punjab (1995 (2) SCC 745), Union of India vs. Virpal Singh Chauvan (1995 (6) SCC 684 and Ritesh R. Sah vs. 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 Castes-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. Let us illustrate by an example :
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.
In the said judgment, how the reservation has to be arranged, is explained and needs to be applied in all the cases. The appointing authority is to first arrange the list of open category in order of merit followed by list for providing social reservation i.e. to SC, ST, SBC and OBC category. The horizontal reservation is provided subsequently but while doing so, if a candidate is entitled for horizontal reservation and finds place in the merit list of open category or of socially backward class, would be counted towards horizontal reservation. If it satisfies the required number of reservation meant for horizontal reservation, then is to be taken in satisfaction of the reservation. The difference between vertical and horizontal reservation is thus made out because while providing vertical reservation to the socially backward classes, a candidate finding place in the open category would not be counted towards reservation, whereas in the horizontal reservation, it is allowed to be counted. Applying the ratio aforesaid, there cannot be reservation within reservation while issuing advertisement. In any case, the issue aforesaid needs no further elaboration because the respondents themselves reserved post interchangeable with other subjects at the discretion of the committee. It so happened because in pursuance to the judgment of this court in the case of Vinita Nair (supra), appointment has been given on the post which was not shown for the physically handicapped person. The argument raised by learned counsel for the petitioners however needs acceptance that while identifying the post in reference to Sections 32 and 33 of the Act of 1995, the post meant for disabled person should not have been shown with any post meant for SC, ST and OBC category.
The last question is regarding application of judgments in the case of Vinita Nair and Dharam Pal Yadav (supra). Before taking the issue aforesaid into consideration, it would be gainful to refer factual status as on now in regard to appointment against eight posts meant for disabled persons. It is submitted by Shri A.K. Sharma, Senior Counsel appearing for the University that eight candidates have already been appointed namely, Dr.Rajesh Gour in the department of Law, Harsh Singh Gehlot in the subject of History, Mohit Jain in the subject of ABST, Mr.Ankur in the subject of Chemistry, Mr. Vishal Vikram in the subject of Hindi, Dharam Pal Yadav in the subject of ABST, Vinita Nair in the subject of Philosophy and Rajesh Kumar in the subject of Public Administration. Out of eight posts, seven posts of disabled category have already been occupied leaving only one post vacant which is due to non-joining of post by Rajesh Kumar. Even if the analogy drawn by the Division Bench in the case of Vinita Nair (supra) goes contrary to the judgment of Apex Court in the case of Rajesh Kumar Dharia (supra), the fact yet remains that one post meant for disabled category should have been filled from and amongst candidates of that category on non-joining of the post by Rajesh Kumar. A direction cannot be given for appointment of all the petitioners because three candidates have preferred writ petitions, whereas appointment can be given to one against the post lying vacant on account of non-joining of post by Rajesh Kumar. Hence, the respondents are directed to consider the case of the candidate against one post who is having higher merit position.
An argument was raised by the Senior Counsel appearing for the University that challenge to the selection has been made subsequent to the expiry of the application for appointment which is kept alive for a period of one year. The argument aforesaid is considered. I find that the expiry of the application after one year has no effect herein because claim is made based on the selection which was undertaken in pursuance to the applications and selection was made well within the time of one year for keeping applications alive. The provision referred by the counsel for the University is not for life of the panel. In view of above, objection aforesaid cannot be accepted.
All the writ petitions are disposed of with the directions given above. The stay applications also stand disposed of.
[M.N.BHANDARI], J.
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