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2004 DIGILAW 402 (RAJ)

Himanshu Kachhwaha v. R. P. S. C. , Ajmer

2004-03-16

N.P.GUPTA

body2004
JUDGMENT 1. - These two writ petitions arise in identical circumstances and involve identical questions, as such, they are being decided by this common order. 2. In writ No. 384/04, on 4.2.2004, notice to show cause had been s issued returnable within one week, thereafter, on 23.2.2004 service of respondent No. 1. being the State was dispensed with as the effected party, being R.P.S.C. the respondent No. 2. was already served and the matter was ordered to De put up for admission on 3.3.2004. That day, writ No. 830/04, was also listed, and that matter was not taken up on that day, c) as the counsel for the respondent in writ No. 364 wanted to file reply, without any express order being passed in writ No. 830, that file was simply passed over. However, reply had been filed therein, by the respondent No. 2, on 5.3.2004, and thereupon the matters were taken up today. In writ No. 830/04, it was listed on 24.2.2004, on which date, it was ordered to be put up before appropriate bench on 25.2.2004, and the case was listed on 3.3.2004 on which date, as noticed above, the writ No. 25 364 was also listed. However, it was understood, that in this case also, Mr. Joshi will appear and tile reply. On 9.3.2004, Mr. Joshi appeared in writ No. 830/04 also, and filed reply as such both the writ petitions at the 20 request of learned counsel for the effected parties, were heard. 3. The facts of the case are, that an advertisement dated 6.4.2003 was published by the R.PS.C. inviting applications for examinations for selection to various State and Subordinate Services. The total number of vacancies was shown to be 493. In this advertisement, being Annexure 3 25 in both the writs the break up of the vacancies was given as earmarked for General, within that for males and females. Then the other head given was reserved posts and in this reserved category also, there were 6 categories mentioned being SC (MF), ST (MF), OBC (MF), Physically Handicapped. Non-Gazetted Officers, and Departmental Employees. The 30 petitioners, in both the writ petitions claimed to be physically handicapped candidates. According to the petitioners, they applied in 40 response to the advertisement, and appeared in the preliminary examinations held on 12.10.2003. Result of this examination was declared. 4. Non-Gazetted Officers, and Departmental Employees. The 30 petitioners, in both the writ petitions claimed to be physically handicapped candidates. According to the petitioners, they applied in 40 response to the advertisement, and appeared in the preliminary examinations held on 12.10.2003. Result of this examination was declared. 4. it is from this point that the controversy arises inasmuch as by this result the roil numbers of those candidates were published, who are 45 found eligible for appearing in the main examination and none of the two petitioners have been found to be eligible therein. The grievance of the petitioners is, that according to the Rule 15 of the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1999, the number of candidates, to be admitted to the main examination, is required to be 15 times the total approximate number of vacancies (category-wise), to be filled in the year in the various services, and posts. Precisely on this basis, it is contended that since in 1 Annexure 1, the number of vacancies have been advertised category-wise, and therein 9 vacancies were shown to be reserved for physically handicapped persons. 15 times thereof being 135 physically handicapped candidates should have been declared eligible to appear in the main 5 examination, rather the submission is. that instead of the result, as declared the category-wise result should have been declared, and if the results were to be declared accordingly, the petitioners would have found place in the eligibility to appear in the main examination. Not doing so, is violative of the provisions of Rule 15, so also amounts to, their being discriminated against, by making unequal to compete as equals, and thus, the action is violative of the provisions of Articles 14 and 16 of the Constitution of India. Inter-alia on this basis, it is prayed, that the respondent may be directed to reconsider the matter, and declare the result of RAS, Preliminary Examination, 2003, category-wise, separately for physically handicapped candidates in the ratio 15 1:15, and in case, the petitioners' names appear in the list of successful candidates, then to call the petitioners to appear in the main examination, with all. consequential directions. 5. In the reply, it is contended, that the question. consequential directions. 5. In the reply, it is contended, that the question. as to whether physically handicapped persons constitute a separate category stands 20 concluded by the judgment of hon'ble the Supreme Court in Indra Sawhney v. Unino of India, reported in 1992 Suppl. (3) SCC 215 : 1992(6) JT 273 , wherein it has been held that the reservation in favour of Scheduled Castes, Scheduled Tribes, and Other Backward Classes u/Art. 16(4) may be called 'vertical reservation', whereas the reservatiosn in favour of Physically Handicapped. u/Art. 16(1), can be referred to as 'horizontal reservation'. Horizontal reservations cut across the vertical reservations what is called inter-locking reservations. To be more precise, suppose 3% of vacancies are reserved in favour of physically handicapped persons, this would be a reservation relatable to Article 16(1), and the person selected in this quota will 30 be placed in the appropriate category to which he belongs, i.e. SC/ST or General, by making necessary adjustments. Then it is pleaded that relying upon this judgment this Court in Bhuvaneshwar Singh Chauhan v. State of Rajasthan & Ors., S.B. Civil Writ Petition No. 4080/2000 decided on 16.9.2002 , has reiterated the same principle, and it was held, that the lawdoes not permit, that there should be a separate category for physically handicapped persons, for giving be reservations to them.Thus, according to the respondents, the issue sought to be raised in this writ petition is no more res Integra, and the writ is required to be dismissed. It was then pleaded, that the petitioner could not secure the cut off marks for the category, to which he belongs (both the petitioners here claim to be of General Category), they have not been declared successful in the preliminary examination. According to the respondents, physically handicapped persons do not fall in the separate category, as envisaged u/R. of the Rules, and thus no error has been committed by the Commission, nor can its action be said to be arbitrary, or discriminatory. It was also pleaded that the preliminary examinations are held, for short listing the candidates in the categories, and the benefit of reservation is given to the physically handicapped persons, after declaration of the result of the main examination, and interview. It was also pleaded that the preliminary examinations are held, for short listing the candidates in the categories, and the benefit of reservation is given to the physically handicapped persons, after declaration of the result of the main examination, and interview. It was also pleaded, that neither the Disabilities (Equal opportunities, protection of rights and full participation) Act, 1995, nor the rules framed thereunder, being the Rajasthan Handicapped Persons (Physically disabled persons) Rules, 2000, make any provision for fixing separate cut off marks, in the preliminary examination, for the physically handicapped persons. It was also pointed out, that in the preliminary examination, in all physically handicapped persons have been declared successful in the respective categories and the benefit of reservation will be given to the physically handicapped persons, only after final merit list is prepared. It was also explained. that like handicapped persons reservation has been made for non-gazetted employees, and departmental employees, but then they do not constitute independent categories. so as to entitle them to claim declaration of eligibility of candidates in the ratio 1:15, in that category. Thus, it was prayed that the writ petition be dismissed. 6. Arguing the writ petition, the same submissions were reiterated. However, learned counsel for the petitioner placed reliance on para 9 of the judgment of the Hon'ble the Supreme Court, in Govt. of Andhra Pradesh is v. P.B. Vijaykumar & Anr., reported in AIR 1995 SC 1648 . Learned counsel for the respondent, on the other hand, relied upon the judgment in Indra Sawhney's case (supra), Bhuvaneshwar Singh's case (supra), Chattar Singh & Ors. v. State of Rajasthan & Ors., reported in 1996(11) SCC 742 & Dharamveer Tholia & Ors. v. State of Raj. & Anr., reported in 2000(3) 20 WLC (Raj.) 399 . Learned counsel for the petitioner, in rejoinder, relied upon paras 856, 857 and 858 of Indra Sawhney's case. 7. I have considered the submissions and have gone through there judgments. 8. Before proceeding to examine the controversy, I may gainfully quote 25 the provisions of Rules 15 and 17, which provide for the scheme of examination, and making of the recommendations of the Commission, which reads as under: "15. Scheme of Examination, personality and Viva-voce Test. The Competitive Examination shall be conducted by the Commission in two stages i.e. Preliminary Examination and Main Examination as per the scheme specific in Schedule-Ill. Scheme of Examination, personality and Viva-voce Test. The Competitive Examination shall be conducted by the Commission in two stages i.e. Preliminary Examination and Main Examination as per the scheme specific in Schedule-Ill. The marks obtained in the Preliminary Examination by the Candidates, are declared qualified for admission to the Main Examination and will not be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be times the total approximate number of vacancies (Category-wise) to be filled in the year in the various services and posts but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for lower range will be admitted to the Main Examination. Candidates who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission their discretion shall be summoned by them for an interview. The Commission shall award marks to each candidate interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthan Culture. However, for selection to the Rajasthan Police Service Candidates having 'C' certificate of N.C.C. will be given preference. The marks so awarded shall be added to the marks obtained in the Main Examination by each such candidate: Provided that the Commission, on intimation being received from the Government before declaration being result of the Preliminary Examination may increase or decrease the number of vacancies advertises:. 17. Recommendation of the Commission. (1) The Commission shall prepare for each service, a list of the candidates arranged in order of merit of the candidates as disclosed by the aggregate marks finally awarded to each candidate. If two or more of such candidates obtain equal marks in the aggregate the Commission shall arrange their names in the order of merit on the basis of their general suitability for the service : Provided that the candidate(s) belonging to the other Backward Classes/Scheduled Castes/Scheduled Tribes who get placement in the merit list as a result of special concession given to them in terms of 'age' and 'fees' or such other concession granted by the Government shall be counted against the reserved vacancies determined for the candidates belonging to the other Backward Classes/Scheduled Casts/Scheduled Tribes irrespective of the marks obtained by them. (2) The Commission, while giving weight age to the preference for the 15 posts in the different services expressed by a candidate in his/her application, may recommend him/her for appointment to any post in any such service or which it considers him suitable. (3) The list compiled under this rule shall be immediately sent to the Government and also be published for general information." 9. A look at these two provisions make it clear, that in the process of selection, actually the process of elimination take place, the first step of elimination is of short listing, by holding a preliminary examination, as mentioned in Rule 15, and thereafter, the successful candidates, up to the specified limit, are eligible to appear in the main examination, and out of the 25 candidates, who pass in the examination i.e. obtain minimum qualifying marks, are to be summoned for interview, wherein also marks are to be awarded, having regard to their character, personality, address, physique and knowledge of Rajasthan Culture, and the total of the marks obtained in interview, and the main examination, makes the basis for preparation of merit 30 list for the purpose of Rule 17. 10. Now taking up the various judgments of Hon'ble the Supreme Court and of this Court P.B. Vijaykumar's case (supra), was a case dealing with the question of validity of Rule 22-A(2) of the Andhra Pradesh State and Subordinate Service Rules, where under it was provided that in the matter ofdirect recruitment to the posts for which men and women are equally suited, other things being equal, preference shall be given to women, and they will be selected to an extent of at least 30% of the post in each category of O.B.C., S.C., and S.T. quota. Hon'ble the Supreme Court considered the validity of that provision, and upheld the same and in that process, in para 9, it was observed as under: "Reservation normally implies a separate quota which is reserved for a special category of persons. Within that category appointments to the reserved posts may be made in the order of the merit. Nevertheless, the category for whose benefit a reservation is provided, is not required to compete on equal terms with the open category. Their selection and appointment to reserved posts is independently on their inter merit and not as compared with the merit of candidates in the open category. Nevertheless, the category for whose benefit a reservation is provided, is not required to compete on equal terms with the open category. Their selection and appointment to reserved posts is independently on their inter merit and not as compared with the merit of candidates in the open category. The very purpose of reservation is to protect this weak category against competition from the open category candidates." Then Hon'ble the Supreme Court quoted the para 836 of lndra Sawhney's case (supra). 11. In Indra Sawhney's case (supra), in para 856, 857 and 858, as relied upon by the learned counsel for the petitioner, what has been held by Hon'ble the Supreme Court is, that the reservation necessarily means appointment of less meritorious persons, and that the small difference, that may be allowed at the stage of initial recruitment is bound to disappear in course of time, these members too will compete with and improve their efficiency alongwith others. Thus, neither the judgment in P.B. Vijaykumar (supra), nor these three paras of Indra Sahwhney's case (supra) lay down the requirement, of declaring the result of preliminary examination by treating the physically handicapped persons to be a separate category, like SC, ST, OBC, etc. so as to entitle the petitioners to claim declaration of 15 times the number of vacancies, as successful candidates eligible to appear in the main examination. 12. On the other hand, a look at para 832 of the judgment in Indra Sawhney's case (supra), clearly holds it otherwise, by holding this reservation to be horizontal, and to be inter-locking reservation and also by giving specific example. I may gainfully quote pare 832 of Indra Sawhney's case (supra), which is as under: "We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes make u/Art. 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 (u/Art. 16(4) may be called vertical reservation whereas reservations in favour of physically handicapped (under clause (1) of Article 16) can be referred to as horizontal reservation. Horizontal reservations cut across the vertical reservations what is called inter-locking reservations. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes (u/Art. 16(4) may be called vertical reservation whereas reservations in favour of physically handicapped (under clause (1) of Article 16) can be referred to as horizontal reservation. Horizontal reservations cut across the vertical reservations what 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 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." 13. Dharamveer Tholia's case (supra) need not detain me much, because it appears from para of the judgment, that during pendency of the matter before this Court, Hon'ble the Supreme Court passed the interim order staying declaration of the result of the main examination, likewise, as appears from para of the judgment that the Hon'ble Division Bench also held, that the public interest litigation filed only on 24.7.2000, to challenge the validity of the rule after declaring the result, and after the time table for examination had been issued is not entertain able as at this belated stage. Then in Chattar Singh's case it was held, that separate lists are required to be so published by the Commission in respect of the candidates in the respective categories, so as to make up number of candidates times the notified or anticipated posts/vacancies. But then the question considered was, on the anvil of requirement of providing lesser cut off marks for OBC category, and the categories being considered in that adjustment, were General, SC, ST and OBC. Therefore, that judgment is also no authority for the proposition under consideration before me. either ways. 14. But then the question considered was, on the anvil of requirement of providing lesser cut off marks for OBC category, and the categories being considered in that adjustment, were General, SC, ST and OBC. Therefore, that judgment is also no authority for the proposition under consideration before me. either ways. 14. However, Bhuvaneshwar Singn's case (supra) is a direct judgment on the issue, where it was clearly held as under: "That law does not permit that there should be separate category for physically handicapped persons for purpose of reservations." 15. This judgment took into account the aforesaid Rajasthan Handicapped Persons (Physically disabled persons) Rules of 2000 as well.Significantly, Bhuvaneshwar Singh's case was a case relating to final examination, as the candidate therein had qualified in the preliminary examination, and was called to appear in the main examination, the result whereof was declared on 24.10.2000, and not a single candidate, under the category of blind, was interviewed, though the petitioner was the only person of that category who qualified the preliminary examination, and appeared in the main examination, under the category of Blind, and according to the mark sheet, there was an endorsement made to the effect "not qualified for interview'. which precisely was under challenge. On the other hand the present case is still on a stronger footing, inasmuch as, here the matter relates only to snort listing. 16. As noticed above the preliminary examination is only an examination for short listing the candidates, and at this stage, it will be too much for the petitioner to ask for declaration of the results, so category-wise, as is sought to be argued. In that view of the matter, I do not find any substance in the contention of the learned counsel for the petitioner, that the category-wise result for physically handicapped candidates, in the ratio of , is required to be declared for the preliminary examination. 17. The writ petitions thus being devoid of force and are, therefore, dismissed summarily.Writ Petitions Dismissed. *******