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2002 DIGILAW 1601 (RAJ)

Bhuvneshar Singh Chauhan v. State of Rajasthan

2002-09-16

SUNIL KUMAR GARG

body2002
JUDGMENT 1. 1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 7.11.2000 against the respondents with the prayer that by an appropriate writ, order or direction, the respondents be directed to declare the result of the petitioner as he has already appeared for interview on 15.11.2000 by virtue of the interim order of this Court dated 10.11.2000 and if he is found successful, he be given appointment, with all consequential benefits and furthermore, the provisions of Rule 9 of the Rajasthan Employment of Physically Handicapped Rules, 1976 (hereinafter referred to as "the Rules of 1976") be declared ultra vires. 2. The case of the petitioner as put forward by him in this writ petition is as follows : The petitioner is having total blindness of 98% having a residual vision of right eye F.Cat 5' and for the left eye No. P.L and for that, Certificate Annex. P/1 dated 16.3.1993 may be referred to. Annex.P/2 is a Certificate dated 3.12.2000 which shows that the petitioner is a blind person and comes under the category of Physically handicapped under the Rules of 1976. 3. The case of the petitioner is that an advertisement was issued by the Rajasthan Public Service Commission (for short "Commission") (the number and date of the advertisement were not mentioned by the petitioner but the copy of the said advertisement bearing No.2/98-99 dated 10.5.1999 was submitted by the respondent No. 1-Commission) for Rajasthan State and Subordinate Services Combined Competitive Examination, 1999 and in response to said advertisement, the petitioner submitted his application duly filed-in, in all respects within the stipulated time against the handicapped quota under the category of blind. According to the petitioner, after scrutiny of his application, he was permitted to appear in the preliminary examination, which he qualified and thereafter, he was called to appear in the main examination. The result of the main examination was declared on 24.10.2000.The further case of the petitioner is that the result of the main examination shows that not a single candidate under the category of blind was called for interview, though the petitioner was the only candidate, who qualified the preliminary examination and appeared in the main examination under the category of blind candidates. The mark-sheet of the petitioner for RAS/RTS Combined Competition (Main) Examination, 1999 is Annex.P/4, which shows that he received 599 marks out of 1300 marks, but there is an endorsement in that mark-sheet to the effect "not qualified for interview" and this aspect has been challenged by the petitioner in this writ petition on the ground that the respondent No. 1 Commission has not laid down the qualifying/pass marks in individual paper and aggregate marks for this examination and when not a single person qualified under the category of physically handicapped and petitioner was the only qualified person, therefore, he should have been called for interview under the category of blind. The petitioner submitted a detailed representation on 4.11.2000, a copy of which is marked as Annex.P/5.The further case of the petitioner is that as per Rule 4 of the Rules of 1976, 3% seats are reserved for physically handicapped category and as per the number of vacancies determined 15 vacancies were reserved for the physically handicapped candidates and out of 15 seats, 5 seats were reserved for the bind and as per 100 point roster (Annex. P/3), point no.34 was meant for the blind candidates and thus, the petitioner should have been called for interview from the blind category.It has been further submitted by the petitioner that as per Rule 9 of the Rules of 1976, physically handicapped candidates are entitled for relaxation of 5% of qualifying or pass marks in individual paper and in aggregate marks, whichever prescribed in any examination.The further case of the petitioner that he has been wrongly treated as a member of general category, though he belonged to general category, but according to him, there should be a separate category of blind and treating the petitioner in general category and thus granting relaxation of 5% marks by the respondents was wrong.The further case of the petitioner is that though he secured 599 marks in the main examination, but a candidate in reserved category securing 529 marks was called for interview and thus, the petitioner should also have been called for interview and the action of the respondents in not calling the petitioner for interview is wholly illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India. Hence, this petition with the prayers as stated above. 4. Hence, this petition with the prayers as stated above. 4. A reply to the writ petition was filed by the respondent No. 1-Commission and the main contentions of the respondent No. 1- Commission are : (1) That the petitioner is entitled to get concession as provided under Rule 9 of the Rules of 1976 in the category in which he falls, meaning thereby since the petitioner belongs to general category, therefore, his case would fall under the general category and the benefit of cut-off marks fixed for general category by giving 55 relaxation would be available to the petitioner and the case of the petitioner that he was entitled to the benefit available for reserved category of SC/ST is at all not tenable. (2) That in view of the interim order of this Court dated 10.11.2000, the petitioner was called for interview on 15.11.2000 on provisional basis, but since the petitioner did not qualify even for interview, therefore, his result was not declared. (3) That the category of physically handicapped is not a separate category, but reservation is provided in their respective category. Since the petitioner belongs to general category, therefore, he was given relaxation of 5% marks in the aggregate cut-off marks fixed in the general category and even after giving that relaxation, he did not obtain the qualifying marks for calling for interview. Hence, it was prayed that the writ petition filed by the petitioner be dismissed. 5. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record. 6. The question for consideration in this writ petition is whether the petitioner though he is a candidate of general category is entitled to the benefit of those marks given in reserved category like Scheduled Castes and Schedule Tribes or not or whether there should be a separate category for blind or not or whether even though the petitioner is a blind person, he would be treated under the general category being a member of general category or not. 7. 7. From perusing the writ petition as well as the submissions raised on behalf of the petitioner, it appears that the petitioner has emphasised on the point that there should be a separate category for the physically handicapped persons and since the petitioner was the only physically handicapped person, who qualified the preliminary examination and appeared in the main examination, therefore, he should have been given the appointment from the quota of physically handicapped person, but, in my considered opinion, this argument because of the following reasons cannot be appreciated and accepted:- (a) That for declaration the point in question, the law laid down by the Hon'ble Supreme Court in Indra Sawhney V/s Union of India (1992 Supp(3) SCC 215 ) especially paras 811 and 812 of that judgment may be referred to and for convenience, they are being quoted here : "811. In this connection, it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to say, Scheduled Castes get selected in the open competition field on the basis of their- own merit; they will not be counted against the quota reserved for Schedule Castes; they will be treated as open competition candidates. 812. We are also of the opinion that this rule of 50% applied 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' 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 - 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. 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 belongs 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 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. A bare reading of para 812 of the judgment of the Hon'ble Supreme Court in the case Indra Sawhney (supra) makes the position clear in two respects (i) That the reservations in favour of physically handicapped are horizontal reservations and physically handicapped persons would be placed in the appropriate category to which they belong meaning thereby since the present petitioner belongs to general category, he will be allowed reservation from that category and not from the category of SC/ST etc. (ii) That the above observations of the Hon'ble Supreme Court reject the plea that there should be a separate category for physically handicapped persons for the purposes of reservations. (b) That the learned counsel appearing for the petitioner has not mentioned the advertisement number and date in this petition and for that, the learned counsel for the respondent No. 1-Commission has filed a copy of advertisement being No.2198-99 dated 10.5.1999 in which there is a note 1.1 which clarifies the position that there is no separate reservation for the physically handicapped persons and to whom category physically handicapped person belongs, the reservation would be available to him from that category. This note 1.1 makes the position clear that since the petitioner belongs to general category, therefore, reservation would be from the general category and treating the petitioner from general category, he was given benefit in the cut-off marks fixed for the candidates belonging to general category by 5% as provided in Rule 9 of the Rules of 1976. This note 1.1 makes the position clear that since the petitioner belongs to general category, therefore, reservation would be from the general category and treating the petitioner from general category, he was given benefit in the cut-off marks fixed for the candidates belonging to general category by 5% as provided in Rule 9 of the Rules of 1976. It appears that the advertisement was issued keeping in mind the law laid down by the Hon'ble Supreme Court in the case of Indra Sawhney (supra). 8. Furthermore, since the petitioner secured 599 marks out of 1300 marks and if relaxation by 5% is given even then, he did not qualify for interview and the claim of the petitioner that person in the reserved category securing lesser marks than the petitioner was called for interview, therefore, he should have been also called for interview, is not at all tenable in view of the law laid down by the Hon'ble Supreme Court in the case of Indra Sawhney (supra). 9. Thus, it is held that the reservations in favour of the physically handicapped persons are horizontal reservations and the physically handicapped persons selected would be placed in the appropriate category to which they belong meaning thereby if he belongs to SC category he will be placed in that quota by making necessary adjustment and similarly, if he belongs to general category, he will be placed in that category by making necessary adjustments. It is further made clear that law does not permit that there should be a separate category for physically handicapped persons for giving reservations to them. 10. In these circumstances, since the petitioner belongs to general category, he will be allowed reservation from that category on horizontal basis and treating him from general category, benefit in the cut off marks fixed for the candidates belonging to general category by 5% as provided in Rule 9 of the Rules of 1976 was given to him and even after giving him that concession, he does not qualify for interview as is evident from the mark-sheet Ex.P/4 belonging to the petitioner. Thus, the petitioner was rightly not called for interview by the respondent No. 1-Commission and the observation contained in the mark-sheet of the petitioner Ex.P/4 to the effect "not qualified for interview" cannot be said to be illegal or arbitrary or against the Rules. Thus, the petitioner was rightly not called for interview by the respondent No. 1-Commission and the observation contained in the mark-sheet of the petitioner Ex.P/4 to the effect "not qualified for interview" cannot be said to be illegal or arbitrary or against the Rules. Hence, the petitioner is not entitled to any relief sought for. 11. Thus, the foregoing discussion leads to the following conclusions:- (i) That the reservations in favour of the physically handicapped persons are horizontal reservations and such type of persons would be placed in the appropriate category to which they belong. (ii) That law does not permit that there should be a separate category for physically handicapped persons for purpose of reservations. (iii) That the petitioner is not entitled to any relief sought for and his writ petition is liable to be dismissed. 12. So far as the argument that Rule 9 of the Rules of 1976 is ultra vires is concerned, the same stands rejected because of the following two reasons:- (i) That now Rules of 1976 have been replaced by the new Rules known as:- "The Rajasthan Employment of the persons with Disabilities Rules, 2000": and (ii) That in view of the law laid down by the Hon'ble Supreme Court in the case of Indra Sawhney (supra), it cannot be said that the Rule 9 of the Rules of 1976 is ultra vires. In the result, this writ petition filed by the petitioner fails and is dismissed. No order as to costs.Petition dismissed. *******