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2015 DIGILAW 851 (RAJ)

Dharm Pal Yadav v. University of Rajasthan

2015-04-15

AJIT SINGH, SUNIL AMBWANI

body2015
JUDGMENT : Hon'ble AMBWANI, CJ.—This intra-court D.B. Civil Special Appeal is directed against a judgment of learned Single Judge dated 10th December, 2013, by which he dismissed the writ petition filed by the appellant-petitioner to quash a notice dated 2.12.2013 issued on the recommendation made by the Selection Committee in the meeting of the Syndicate of University of Rajasthan at Jaipur dated 2.12.2013, rejecting the appellant-petitioner's candidature for appointment on the post of Assistant Professor in the subject of "Accountancy and Business Statistics" (ABST), as a physically challenged candidate belonging to OBC category, and for a direction to give him appointment as a physically challenged person in the OBC category, for which the post was reserved. 2. Brief facts giving rise to this Special Appeal are that the University of Rajasthan issued an advertisement dated 1.11.2012 inviting applications for appointment on the posts of Professors, Associate Professors and Assistant Professors including 10 posts in the subject of ABST at Serial No. 16, for which one post of Professor was for general category (UR), 3 posts of Assistant Professors for SC category, 2 posts of Assistant Professors for ST category and 4+1* posts of Assistant Professors for OBC category. Out of these posts, one post of Assistant Professor with asterisk in OBC category was reserved for physically handicapped persons. Note-16 appended to the advertisement provided that "posts reserved for Physically challenged candidates can be shifted by the selection committee according to availability of suitable candi-dates without reducing the total number of seats reserved for this category." 3. The appellant belongs to Other Backward Classes (OBC) category and is physically challenged person with above 40% locomotive disability (Residual Polio Rt. Lower limb with weak HK Arms with Equins defor.) as certified in the Medical Certificate dated 21.10.2005 issued by Medical Board. The appellant secured first division in Secondary Examination of 1999, second division with 58.92 marks in Senior Secondary Examination of 2001 of the Board of Secondary Education, Rajasthan, Ajmer, second division with 50.10% marks in B.Com. in the year 2004 and first division with 64.44 marks in Post-graduate Examination (M.Com.) from the University of Rajasthan, Jaipur. He also secured second division with 53.7% marks in M.Com. EAFM in the year 2012 from the University of Rajasthan, Jaipur. 4. in the year 2004 and first division with 64.44 marks in Post-graduate Examination (M.Com.) from the University of Rajasthan, Jaipur. He also secured second division with 53.7% marks in M.Com. EAFM in the year 2012 from the University of Rajasthan, Jaipur. 4. The appellant-petitioner applied for the post of Assistant Professor in the subject of ABST in OBC physically handicapped category, for which the post was shown to be reserved in the advertisement. 5. The appellant-petitioner was found eligible by the Selection Committee and was intimated by a letter dated 20.10.2013 to appear before the Selection Committee for interview on 9.11.2013 at Poddhar Institute of Management (PIM), J.L.N. Marg, Jaipur. He appeared and was interviewed. His name was shown at serial No. 3 in the wait list as physically challenged candidate, vide notice dated 2.12.2013. Shri Mohit Jain, respondent No. 2 was shown at serial No. 5 as selected candidate in the category of physically handicapped. 6. The appellant-petitioner submitted a representation to the Registrar, University of Rajasthan on 3.12.2013 with the contention that the advertisement was issued for filling up the posts of Assistant Professor in ABST with 3 vacancies of SC category, 2 of ST category and 5 (4+1*) of OBC category, out of which, one shown with asterisk was reserved for physically handicapped candidate. As per terms & conditions of the advertisement, one vacancy earmarked for physically handicapped candidates in OBC category was to be filled by the appellant, who was selected and was erroneously placed in the waiting list after Shri Mohit Jain, who is a candidate of general category, for which there was no reservation in the advertisement. The appellant-petitioner did not receive any response from the University on which he filed S.B. Civil Writ Petition No. 21002/2013. 7. The writ petition was dismissed by learned Single Judge in limine on the ground that the physically handicapped candidates have to be treated as a separate category. They cannot be treated in any particular category of SC/ST/OBC, which are reserved by the State Government under Article 16(4) of the Constitution of India for socially backward classes. The posts meant for physically handicapped candidates have to be filled by horizontal reservation and cannot be shown in any one of one of the categories of social reservation, namely, OBC/SC/ST. They cannot be treated in any particular category of SC/ST/OBC, which are reserved by the State Government under Article 16(4) of the Constitution of India for socially backward classes. The posts meant for physically handicapped candidates have to be filled by horizontal reservation and cannot be shown in any one of one of the categories of social reservation, namely, OBC/SC/ST. The reasoning given by learned Single Judge in the short judgment is quoted below:- "Before coming to the facts of this case, it would be relevant to discuss legal position in regard to vertical and horizontal reservation. The reservations are of two types; vertical and horizontal. The vertical reservation comes under Article 16(4) of the Constitution of India and is given to social backward classes like SC/ST/OBC etc. The other reservation which includes reservation to physically handicapped and female etc is horizontal in nature. The horizontal reservation has no nexus with caste(s) like SC/ST/OBC etc, rather, a candidate is given appointment and adjusted wherever and in whatever category, the post is available while arranging vertical reservation. In view of above, horizontal reservation cannot be provided in a particular category of vertical reservation. The respondents, while issuing advertisement had shown 4 posts for OBC category plus 1 post in the same category for persons with disabilities with single asterisk and at the bottom of the advertiseme signified for `physically handicapped.' For other posts also, same asterisk has been provided for physically handicapped persons but in different categories. It is first to be clarified that post meant for physically handicapped persons cannot be in a particular category of SC/ST/OBC. The respondents should have shown separate post/vacancy for physically handicapped persons. In any case, their default cannot be to the benefit of the petitioner contrary to the provisions. The posts meant for physically handicapped have to be filled by horizontal reservation and cannot be shown in one of the categories of social reservation namely OBC/SC/ST etc. Even if it is shown, cannot be given to the OBC category candidate in isolation but the post meant for physically handicapped is to be filled strictly as per merit of that category and not in any of the categories of social reservation as has been held by the Hon'ble Apex Court in the case of "Indra Sawhney &Ors. vs. Union of India & Ors." reported as 1992 Supp (3) SCC 217. vs. Union of India & Ors." reported as 1992 Supp (3) SCC 217. In view of above, if the meritorious candidate in physically handicapped category was available, denial of appointment to less meritorious person like the petitioner cannot be said to be illegal." 8. Learned Single Judge, after stating the law as aforesaid, held that if the respondents have evolved the method of selecting physically challenged person/s in any of the categories of social reservation then it will be against the judgment of Hon'ble Apex Court in Indra Sawhney & Ors. vs. Union of India & Ors. (1992 Supp (3) SCC 217) and that by giving appointment on the post of Assistant Professor in the subject of ABST, to a general category physically challenged candidate on merits, as he was higher in merit as compared to the appellant-petitioner, the respondents have not committed any error. The writ petition was dismissed, giving rise to this Special Appeal. 9. Learned counsel appearing for the appellant submits that learned Single Judge has seriously erred in law in holding that the horizontal reservations to the physically challenged persons are not to be adjusted in their own category of social reservations. The legal position referred to by learned Single Judge is erroneous as based on wrong interpretation of the judgment in Indra Sawhney & Ors. Union of India & Ors. (supra), which was followed and explained in Anil Kumar Gupta and Ors. vs. State of U.P. & Ors. (1995) 5 SCC 173 ). There has been no departure from the legal position of adjusting the horizontal special reservations by interlocking it with the vertical social reservations. Learned Single Judge has erred in law in appreciating the principles of applicability of horizontal reservations with the vertical reservations without disturbing the percentage of vertical reservations and thereafter, in holding that since Shri Mohit Jain, respondent No. 2 was higher in merit as compared to the appellant-petitioner in the category of physically challenged candidates, he had to be given reservation irrespective of the fact that there was no post allocated in the advertisement for general category (unreserved category) on vertical basis. 10. It is submitted that the appellant had applied in OBC category and since he was physically challenged, his application had to be considered giving him reservation for physically challenged category in his own category. 10. It is submitted that the appellant had applied in OBC category and since he was physically challenged, his application had to be considered giving him reservation for physically challenged category in his own category. The physically handicapped persons do not form a class by themselves, but that in applying the reservations, they have to be adjusted in their own social category for which vertical reservation is provided. The appellant was kept in the waiting list as physically handicapped candidate ignoring the fact that in the advertisement itself, one post of Assistant Professor in OBC category was reserved for physically handicapped persons. It is further submitted that Shri Harash Singh Gahlot of OBC category in the subject of History was selected as his name was shown in the selected candidates at serial No. 17, as per the conditions of the advertisement, whereas the name of appellant shown at serial No. 3 in the wait list was not considered, causing discrimination in applying the reservation for physically handicapped candidates. 11. Learned counsel appearing for the respondent-Rajasthan University submits that the posts meant for physically handicapped persons were treated separately and could not be included in a particular category of SC/ST/OBC. The relevant paragraph in the reply given by the Rajasthan University is quoted below:- "1. That the petitioner has filed the present writ petition before the learned Single Judge, inter-alia, praying that the notice dated 2.12.2013 issued by the answering respondent as per the recommendations made by the Selection Committee be quashed in respect to respondent No. 2 Mohit Jain in the subject ABST for the post of Assistant Professor and further a direction be issued to the respondent University to give appointment to the petitioner on the post of Assistant Professor with all consequential benefits being OBC category and physically handicapped. It is submitted that it was the case of the petitioner before the learned Single Judge that the petitioner being OBC candidate had applied under physically handicapped quota and as in the advertisement one post of physically handicapped was shown under Other Backward Class ("OBC" for short hereinafter), the appointment to the said post could only be given to the physically handicapped of OBC. It was also stated that against the said post, respondent No. 2, Mohit Jain who belongs to general category came to be selected by answering respondent which was not permissible in the eyes of law. It was also stated that against the said post, respondent No. 2, Mohit Jain who belongs to general category came to be selected by answering respondent which was not permissible in the eyes of law. At the outset, it is submitted that the post meant for physically handicapped persons is separate and cannot be in a particular category of SC/ST/OBC. It may also be submitted that the reservation in favour of physically handicapped candidates are under Article 16(1) of the Constitution and referable as horizontal reservation and the persons selected against this quota would be placed under appropriate category i.e. if he belongs to SC category he would be placed in that quota by making necessary adjustments and similarly, if belongs to open competition category he would be placed in that category by making necessary adjustments. It is submitted that the post meant for physically handicapped is to be filled in strictly as per merit of that category and not in any of the categories of social reservation. 2. That though in advertisement dated 1.11.2012 issued by the answering respondent inadvertently vacancies for physically handicapped has been shown in a particular category. However, the answering respondent has filled the vacancies as per merit of the candidates. It is submitted that as respondent No. 2 i.e. Mohit Jain was higher in merit, he was offered appointment. It is submitted that as Mohit Jain belongs to open competition category, he was placed in that particular category. 3. That it may be relevant to mention here that the Hon'ble Apex Court in the case of Indra Sahani vs. UOI (1992) Suppl. (3) SCC 215 has categorically held that physically handicapped person if selected against their quota of reserved vacancies would eventually be placed in that particular category i.e. SC/ST/General/Women and would stand assimilated in those categories so much so that the percentage of reservation in favour of backward class of citizens remain unaltered. 4. That it is denied that the action of the respondent is contrary to Articles 14 & 16 of the Constitution of India and deserves to be quashed and set aside. It is denied that respondent No. 2 not being a member of OBC could be selected by answering respondent. It may also be pertinent to mention here that in the petition, the petitioner himself has admitted that the posts were wrongly shown in a particular category i.e. Open Category/SC/ST/OBC. It is denied that respondent No. 2 not being a member of OBC could be selected by answering respondent. It may also be pertinent to mention here that in the petition, the petitioner himself has admitted that the posts were wrongly shown in a particular category i.e. Open Category/SC/ST/OBC. It is submitted that once the petitioner himself has admitted that the vacancies are wrongly been shown it could not be said that the learned Single Judge has erred in dismissing the writ petition filed by the petitioner. It is submitted that reservation for physically handicapped persons is governed by the Act of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("Act" for short) and the rules framed thereunder. It is submitted that the merit amongst the physically handicapped candidates cannot be ignored or overlooked by the answering respondent. It is submitted that therefore, the answering respondent has rightly selected respondent No. 2 against the post of Physically Handicapped candidates." 12. Learned counsel appearing for Shri Mohit Jain, respondent No. 2 submits that the reservation for physically handicapped persons is provided on horizontal basis. As held by the Apex Court in Anil Kumar Gupta vs. State of UP (supra), the horizontal reservation is of two category i.e. overall reservation or compartmentalized reservation. The compartmentalized horizontal reservation is a water tight compartment in each of the vertical reservation classes (OC, OBC, ST & SC). As against this, the overall horizontal reservation is that where while allocating reservation to their respective social reservation category, the overall reservation has yet to be honoured. In Indra Sawhney's case (supra), it was held that the reservation in favour of physically handicapped persons being horizontal under Article 16(1) of the Constitution of India, while implementing the persons selected against this quota will be placed in the appropriate category. Shri Mohit Jain, respondent No. 2 was more meritorious than the appellant-petitioner. There was only one vacancy/post of Assistant Professor in the subject of ABST meant for physically handicapped category. As per the terms and conditions No. 16 of the advertisement, the posts reserved for physically challenged candidates can be shifted by the selection committee according to availability of suitable candidates without reducing the total number of seats reserved for this category. There was only one vacancy/post of Assistant Professor in the subject of ABST meant for physically handicapped category. As per the terms and conditions No. 16 of the advertisement, the posts reserved for physically challenged candidates can be shifted by the selection committee according to availability of suitable candidates without reducing the total number of seats reserved for this category. Since there was only one post reserved for the physically challenged candidate in the ABST department and the respondent No. 2 was the most meritorious candidate in the category, therefore, as per condition No. 16 of the advertisement, he was to be appointed irrespective of the fact that to which social reservation category he belongs. The appellant has no reason to be aggrieved. The judgment of learned Single Judge is based on correct principles of law. The Special Appeal deserves to be dismissed. 13. After hearing learned counsel appearing for the parties and examining the scheme of applicability of vertical and horizontal reservations as laid down in Indra Sawhney & Ors. vs. Union of India & Ors. (supra), Anil Kumar Gupta and ors. vs. State of U.P. & Ors. (supra), Ramesh Chandra Shah and Ors. vs. Anil Joshi and Ors. (2013) 11 SCC 309 ) and Union of India and Anr. vs. National Federation of the Blind and Ors. (2013) 10 SCC 772 ), we are of the view that learned Single Judge has failed to appreciate the principles of law as evolved by the Hon'ble Supreme Court in applying the horizontal reservations for physically handicapped candidates in the selection for employment. 14. In order to appreciate the principles of law culled out by the Hon'ble Supreme Court, it will be relevant to refer to para 812 of the majority judgment in Indra Sahwney's case (supra), which is reproduced for reference:- "812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Art. 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under 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 (under Art. 16(4) may be called vertical reservation whereas reservations in favour of physically handicapped (under clause (1) of Art. 16) can be referred to as horizontal reservation. 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 reserva-tions 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." 15. The principle of law for applying reservations for special categories in favour of physically challenged persons under Article 16(1) as horizontal reservations by interlocking it, is called interlocking reservations in the vertical reservations under Article 16(4). The Supreme Court explained the principles of compartmentalized reservation and overall reservation in Anil Kumar Gupta and Ors. vs. State of U.P. & Ors. (supra) in the year 1995 as follows:- "15. On a careful consideration of the revised notification of December 17, 1994 and the aforementioned corrigendum issued by the Lucknow University, we are of the opinion that in view of the ambiguous language employed therein, it is not possible to give a definite answer to the question whether the horizontal reservations are overall reservations or compartmentalised reservations. We may explain these two expressions. Where the seats reserved for horizontal reservations are proportionately divided among the vertical (social) reservations and are not inter-transferable, it would be a case of compartmentalised reservations. We may explain these two expressions. Where the seats reserved for horizontal reservations are proportionately divided among the vertical (social) reservations and are not inter-transferable, it would be a case of compartmentalised reservations. We may illustrate what we say: Take this very case; out of the total 746 seats, 112seats (representing fifteen percent) should be filled by special reservation candidates; at the same time, the social reservation in favour of Other Backward Classes is 27% which means 201 seats for O.B.Cs.; if the 112 special reservation seats are also divided proportionately as between O.C., O.B.C., S.C. and S.T., 30 seats would be allocated to the O.B.C. category; in other words, thirty special category students can be accommodated in the O.B.C. category; but say only ten special reservation candidates belonging to O.B.C. are available, then these ten candidates will, of course, be allocated among O.B.C. quota but the remaining twenty seats cannot be transferred to O.C. category (they will be available for O.B.C. candidates only) or for that matter, to any other category; this would be so whether requisite number of special reservation candidates (56 out of 373) are available in O.C. category or not; the special reservation would be a water tight compartment in each of the vertical reservation classes (O.C., O.B.C., S.C. and S.T.). As against this, what happens in the over-all reservation is that while allocating the special reservation students to their respective social reservation category, the over-all reservation in favour of special reservation categories has yet to be honoured. This means that in the above illustration, the twenty remaining seats would be transferred to O.C. category which means that the number of special reservation candidates in O.C.category would be 56+20=76. Further, if no special reservation candidate belonging to S.C. and S.T. is available then the proportionate number of seats meant for special reservation candidates in S.C. and S.T. also get transferred to O.C. category. The result would be that 102 special reservation candidates have to be accommodated in the O.C. category to complete their quota of 112. The converse may also happen, which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter se quota between O.C., O.B.C., S.C. and S.T. will not be altered. 16. The result would be that 102 special reservation candidates have to be accommodated in the O.C. category to complete their quota of 112. The converse may also happen, which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter se quota between O.C., O.B.C., S.C. and S.T. will not be altered. 16. Now coming to the revised notification of 17.12.1994, it says that "horizontal reservation be granted in all medical colleges on total seats of all the courses..." These words are being interpreted in two different ways by the parties; one says it is over-all reservation while other says it is compartmentalised. Paragraph 2 says that the candidates selected under the aforesaid special categories "would be kept under the categories of Scheduled Castes/Scheduled Tribes/Other Backward Classes/General to which they belong. For example, if a candidate dependent on a freedom fighter selected on the basis of reservation belongs to Scheduled Castes, he will be adjusted against the seat reserved for Scheduled Castes." This is sought to be read by the peti-tioners as affirming that it is a case of compartmentalised reservation. May be or may not be. It appears that while issuing the said notifica-tion, the Government was not conscious of the distinction between overall horizontal reservation and compartmentalised horizontal reservation. At any rate, it may not have had in its contemplation the situation like the one which has arisen now. This is probably the reason that this aspect has not been stated in clear terms. 17. It would have been better-and the respondents may note this for their future guidance-that while providing horizontal reservations, they should specify whether the horizontal reservation is a compartmental one or an overall one. As a matter of fact, it may not be totally correct to presume that the Uttar Pradesh Government was not aware of this distinction between "overall horizontal reservation" and "compartmentalized horizontal reservation", since it appears from the judgment in Swati Gupta that in the first notification issued by the Government of Uttar Pradesh on 17.5.1994, the thirty percent reservation for ladies was split up into each of the other reservations. For example, it was stated against backward classes that the percentage of reservation in their favour was twenty seven percent but at the same time it was stated that thirty percent of those seats were reserved for ladies. For example, it was stated against backward classes that the percentage of reservation in their favour was twenty seven percent but at the same time it was stated that thirty percent of those seats were reserved for ladies. Against every vertical reservation, a similar provision was made, which meant that the said horizontal reservation in favour of ladies was to be a "compartmentalised horizontal reservation." We are of the opinion that in the interest of avoiding any complications and intractable problems, it would be better that in future the horizontal reservations are comparmentalised in the sense explained above. In other words, the notification inviting applications should itself state not only the percentage of horizontal reservations but should also specify the number of seats reserved for them in each of the social reservation categories, viz., S.T., S.C., O.B.C. and O.C. If this is not done there is always a possibility of one or the other vertical reservation category suffering prejudice as has happened in this case. As pointed out hereinabove, 110 seats out of 112 seats meant for special reservations have been taken away from the O.C. category alone- and none from the O.B.C. or for that matter, from S.C. or S.T. It can well happen the other way also in a given year. 18. Now, coming to the correctness of the procedure prescribed by the revised notification for filling up the seats, it was wrong to direct the fifteen percent special reservation seats to be filled up first and then take up the O.C. (merit) quota (following by filling of O.B.C., S.C. and S.T. quotes). 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 reservation 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. 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. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) Because the revised notification provided for a different method of filing the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the O.C. quota. 19. In this connection, we must reiterate what this Court has said in Indra Sawhney. While holding that what may be called "horizontal reservation" can be provided under clause (1) of Article 16, the majority judgment administered the following caution in para 744: "But at the same time, one thing is clear. It is in very exceptional situation-and not for all and sundry reasons- that any further reservations of whatever kind, should be provided under clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress the specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treat-ment. The reason for saying so is very simply. If reservations are made both under clause (4) as well as under (1), the vacancies available for free competition as well as reserved categories would be corres-pondingly whittled down and that is not a reasonable thing to do." Though the said observations were made with reference to clauses (1) and (4) of Article 16, the same apply with equal force to clauses (1) and (4) of Article 15 as well. In this case, the reservation of fifteen percent of seats for special categories was on very high side. As pointed out above, two categories out of them representing six percent out of fifteen percent are really reservations under Article 15(4), wrongly treated as reservations under Article 15(1). In this case, the reservation of fifteen percent of seats for special categories was on very high side. As pointed out above, two categories out of them representing six percent out of fifteen percent are really reservations under Article 15(4), wrongly treated as reservations under Article 15(1). Even otherwise, the special reservation would be nine percent. The respondents would be well advised to keep in mind the admonition administered by this Court and ensure that the special reservations (horizontal reservations) are kept at the minimum." 16. In the year 2007, in Mahesh Gupta and Ors. vs. Yashwant Kumar Ahirwar and Ors. (2007) 8 SCC 621 ), the Supreme Court considered the applicability of vertical and horizontal reservations under Article 16(4) and under Article 16(1) of the Constitution of India and stated as follows:- "10. The State in terms of Article 16 of the Constitution of India may make two types of reservations vertical and horizontal. Article 16(4) provides for vertical reservation; whereas Clause (1) of Article 16 provides for horizontal reservation. 11. The State adopted a policy decision for filling up the reserved posts for handicapped persons. A special drive was to be launched therefore. The circular letter was issued only for the said purpose. A bare perusal of the said circular letter dated 29.3.1993 would clearly show that the State had made 3% reservation for blinds and 2% for other physically handicapped persons. Such a reservation falling within Clause (1) of Article 16 of the Constitution has nothing to do with the object and purport sought to be achieved by reason of Clause (4) thereof. 12. Disability has drawn the attention of the worldwide community. India is a signatory to various international treaties and conventions. The State, therefore, took a policy decision to have horizontal reservation with a view to fulfil its constitutional object as also its commitment to the international community. A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They constitute a special class. The advertisement, however, failed to mention in regard to the reservation for handicapped persons at the outset, but, as noticed hereinbefore, the vacant posts were required to be filled up for two categories of candidates; one for Scheduled Caste and Scheduled Tribe candidates and other for handicapped candidates. They constitute a special class. The advertisement, however, failed to mention in regard to the reservation for handicapped persons at the outset, but, as noticed hereinbefore, the vacant posts were required to be filled up for two categories of candidates; one for Scheduled Caste and Scheduled Tribe candidates and other for handicapped candidates. Handicapped candidates have not been further classified as belonging to Scheduled Castes, Scheduled Tribes and general category candidates. 17. In Union of India & Anr. vs. National Federation of the Blind and Ors. (supra), in the year 2013, the Supreme Court explained the applicability of horizontal reservation under Article 16(1) with reference to ceiling of 50% on reservation and held as follows:- "41. Another contention raised by the appellants is that the computation of reservation against the total vacancies in the cadre strength in Group A & B will violate the rule of 50% ceiling of reservation in favour of SC, ST and OBC as laid down by this Court in Indra Sawhney vs. Union of India. This contention is also not tenable and is against the above said judgment. It is difficult to understand as to how the computation of reservation against total vacancies in the cadre strength in Group A and B will violate 50% ceiling when its computation on that basis in Group C and D will not violate the said ceiling. There is no rationale of distinguishing between the manner of computation of reservation with regard to Group A and B posts on the one hand and manner of computation of reservation with regard to Group C and D posts on the other on this ground. 42. A perusal of India Sawhney would reveal that the ceiling of 50% reservation applies only to reservation in favour of Other Backward Classes under Article 16(4) of the Constitution of India whereas the reservation in favour of persons with disabilities is horizontal, which is under Article 16(1) of the Constitution. In fact, this Court in the said pronouncement has used the example of 3% reservation in favour of persons with disabilities while dealing with the rule of 50% ceiling. In fact, this Court in the said pronouncement has used the example of 3% reservation in favour of persons with disabilities while dealing with the rule of 50% ceiling. Para 812 of the judgment clearly brings out that after selection and appointment of candidates under reservation for persons with disabilities they will be placed in the respective rosters of reserved category or open category respectively on the basis of the category to which they belong and, thus, the reservation for persons with disabilities per se has nothing to do with the ceiling of 50%. Para 812 is reproduced as follows: (SCC pp. 735-36). "812..... 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 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...." 18. We are reminded of the fact that for applying the reservation for physically challenged persons under Article 16(1) of the Constitution of India by applying it horizontally, the State has prepared the roster in which the roster points are reserved by applying the horizontal reservation to the vertical reservations and fixing the roster points for such appointment from out of the selected persons. The scope of identification comes into picture only at the time of appointment of a person in the post identified for disabled persons. 19. The scope of identification comes into picture only at the time of appointment of a person in the post identified for disabled persons. 19. The entire argument of learned counsel appearing for the respondent University, which has been accepted by learned Single Judge, flows from the observation in para 12 of the judgment in Mahesh Gupta vs. Yashwant Kumar Ahirwar (supra), in which it is stated that the handicapped candidates have not been further classified as belonging to Scheduled Castes, Scheduled Tribes and general category candidates. It was observed that a disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They constitute a special class. The advertisement, however, failed to mention in regard to the reservation for handicapped persons at the outset, but, the vacant posts were required to be filled up for two categories of candidates; one for Scheduled Castes and Scheduled Tribe candidates and other for handicapped candidates. 20. In Mahesh Gupta's case (supra), the Supreme Court was considering the selection on the post of Assistant Teacher (Science) in which a special drive was launched to fill up the reserved posts for handicapped persons. The vacant posts were required to be filled up for two categories, one for SC and ST candidates and other for physically handicapped. The handicapped candidates were not further classified as belonging to SC, ST and general category candidates. The appellants belonging to general category were suffering from disability. The respondent No. 1 belonging to reserved category and handicapped but was not selected. The Administrative Tribunal opined that he had no right of appointment, having not been selected by Selection Committee. In the writ petition, the High Court set aside the order of the Tribunal with directions that the State Government should examine minutely and decide whether the posts could be filled from the general category when advertisement was for reserved category. A stand was taken by the State before the Tribunal as well as in the High Court that the posts reserved for the handicapped persons were open to all. A stand was taken by the State before the Tribunal as well as in the High Court that the posts reserved for the handicapped persons were open to all. A contempt petition was filed in which the State took a volte face and stated that the advertisement was not proper relating to vacant posts for the category of handicapped persons and that on the basis of the advertisement, the selections made against the quota for handicapped persons, were liable to be cancelled and the services of handicapped teachers presently in service will have to be terminated, on which a show cause notice was issued. The appellants filed a Special Leave Petition, in which the Supreme Court held in paras 10 to 12 as quoted above and allowed the appeal, criticizing the stand of the State. It was observed that the officers of the State behaved strangely. It prevaricated its stand only because a contempt proceeding was initiated. If the State was eager to accommodate the writ petitioner-respondent, it could have done so. The State in terms of the provisions contained in Part IV should have given effect to the principles embodied in Article 39 of the Constitution of India. Whereas a reasonable reservation within the meaning of Article 16 of the Constitution should not ordinarily exists, 50%, as has been held by the Supreme Court in Indra Sawhney vs. Union of India (supra), reservation for women or handicapped persons would not come within the purview thereof. The Supreme Court also referred to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the 1995 Act"). In terms of the 1995 Act, the States were obligated to make reservations for handicapped persons. The State completely lost sight of its commitment both under its own policy decision as well as statutory provision. The Supreme Court gave further direction in para 15 as follows:- "15. For the reasons aforementioned, we not only set aside the judgment of the High Court but also direct that the persons whose services have been terminated in terms of order dated 4.2.2004 should be continued in service. We furthermore direct that they should be paid back wages as also other service benefits. Respondent 1 could have been considered both as handicapped persons as also Scheduled Castes and Scheduled Tribes. We furthermore direct that they should be paid back wages as also other service benefits. Respondent 1 could have been considered both as handicapped persons as also Scheduled Castes and Scheduled Tribes. If all the vacancies meant for Scheduled Castes and Scheduled Tribes had not been filled up, the State may consider appointing him. If he has already been appointed, the State may consider the desirability of creating a supernumerary post and continue his service therein." 21. On an examination of the principles of law as developed by the Supreme Court, we are of the view that learned Single Judge incorrectly understood the applicability of the horizontal reservations, which are provided for special categories in Article 16(1) of the Constitution of India in the vertical reservations provided to socially backward classes under Article 16(4) of the Constitution of India vertically. The advertisement dated 1.11.2012 published by the University of Rajasthan, Jaipur clearly provided and adjusted the horizontal reservation for physically handicapped candidates in the vertical reservations for SC/ST and OBC. A total number of 8 posts out of 294 were reserved for physically handicapped candidates. The calculation in fact in view of Bhudev Sharma vs. District Judge, Bulandshahr & Anr. (AIR 2007 SC (Supp) 1185 (1), by compounding the fraction had to be and to complete it for giving three percent to physically handicapped persons, should have provided for 9 posts instead of 8., as held by this Court in University of Rajasthan vs. Vinita Nair (D.B. Special Appeal (Writ) No. 1676/2014) decided on 9.2.2015. In applying reservation for physically handicapped persons, one post of Assistant Professor in ABST under item No.16, out of 5, was reserved for physically handicapped candidates. The offer of seat to general category (unreserved category) candidate on the basis of merit has not only disturbed the percentage for vertical reservation for OBC category, but also deprived the opportunity to physically handicapped persons in OBC category for appointment. In Indra Sawhney's case (supra), it was clearly explained that horizontal reservations cut across the vertical reservations. The persons selected against this quota under Article 16(1) of the Constitution of India will be placed in the appropriate category, if he belongs to SC, he will be placed in that category by making necessary adjustments. Similarly, if he belongs to OBC category, he will be placed in that category by making necessary adjustments. The persons selected against this quota under Article 16(1) of the Constitution of India will be placed in the appropriate category, if he belongs to SC, he will be placed in that category by making necessary adjustments. Similarly, if he belongs to OBC category, he will be placed in that category by making necessary adjustments. The legal position was further explained in Anil Kumar Gupta & Ors. vs. State of U.P. & Ors. (supra) by the same Hon'ble Judge (B.P. Jeevan Reddy) in paragraph 15 and observed in paragraph 18 that 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., SC, ST and OBC; and 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. If, however, it is a case of compartmentalised horizontal reservation, then the process of verify-cation and adjustment/accommodation should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied. 22. In the present case, the reservation for physically challenged was applied by way of compartmental reservation. There was no reservation provided in general category (unreserved) for Assistant Professor in ABST. 3 posts were reserved for SC category, 2 posts for ST category and 5 (4+1) for OBC category, out of which, one was reserved for physically handicapped persons by applying the horizontal reservations. The applicability of compartmentalized reservation provided to fill up one vacancy if physically handicapped candidate was available on the 5th post of Assistant Professor in ABST. This post could not be filled by general category candidate. The applicability of compartmentalized reservation provided to fill up one vacancy if physically handicapped candidate was available on the 5th post of Assistant Professor in ABST. This post could not be filled by general category candidate. There was no reservation provided for physically handicapped persons for any other category in ABST and considering the distribution of posts for physically challenged candidates in the advertisement, under terms and conditions No. 16, when a person was available, there was no necessity for the Selection Committee to shift the post reserved for physically challenged persons, if they were available. 23. We do not agree with the reasoning adopted by learned Single Judge in holding that physically challenged persons cannot be further classified on the basis of vertical reservations and they form a separate class by themselves in which the appointments have to be given on merit. If the method adopted by learned Single Judge is applied, the applicability of reservations both vertically and horizontally will be disturbed and may give rise to reserving more than 50% for reserved category candidates and vice versa. 24. On the aforesaid discussion, we find that learned Single Judge wron-gly applied the principles of reservations, as explained by Hon'ble Supreme Court and in justifying the appointment of Shri Mohit Jain, respondent No. 2, a general category (unreserved) candidate on the ground that he had scored higher marks and the Selection Committee placed him higher in merit than the appellant irrespective of the social category to which he belongs. 25. The special appeal is allowed. The judgment of learned Single Judge is set aside. The Appointing Authority of the University of Rajasthan will consider and give appointment to the appellant on the post of Assistant Professor in the subject of ABST, in pursuance to the advertisement dated 1.11.2012, against one vacancy reserved for physically handicapped candidates in OBC category. The orders will be implemented within two months. As a consequence, it will be open to the respondent University to dispense with the services of Shri Mohit Jain, respondent No. 2 or to allow him to continue on any vacant post in his category, which may be available in the University, in accordance with law. 26. There shall be no order as to costs.