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2019 DIGILAW 1706 (JHR)

Avinash Dvivedi v. State of Jharkhand

2019-09-25

DEEPAK ROSHAN, H.C.MISHRA

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JUDGMENT : As common questions are involved in both these writ petitions, they have been heard together and are being disposed of by this common Judgment. 2. Heard learned counsels for the petitioners and learned counsel for the State, as also learned counsel for the respondent Jharkhand Public Service Commission (for short 'J.P.S.C.'). 3. The petitioners in both these writ applications belong to unreserved category, but they are differently abled, suffering from loco-motor disorder. They were the aspirants for the post of Civil Judge (Jr. Div.), for which Advertisement No. 12/2018 was published by the J.P.S.C., advertising 107 posts to be filled up in all, pursuant to the preliminary examination, followed by the main examinations and the interview. The number of posts in different reserved categories and number of posts under horizontal reservation for handicapped persons in different categories, were also mentioned in the said advertisement. In the said advertisement, it was further mentioned as follows:- “7. The candidates up to 15 times of the total vacancy category-wise shall be called for appearing in the Main Examination. In case of tie of marks between the candidates at the last pedestal, all the candidates obtaining such marks shall be called for appearing in the Main Examination irrespective of exceeding of number beyond 15 times of vacancies.” 4. The petitioners appeared in the preliminary examination, the results whereof were also published, but they were unsuccessful in the preliminary examination. Thereafter both these writ applications have been filed by the petitioners taking several grounds, challenging their results, as also challenging the holding of the preliminary examination. 5. Firstly, learned counsels for the petitioners have submitted that the office memorandum dated 26.2.2013, issued by the Government of India, Ministry of Social Justice and Empowerment, Department of Disability Affairs, provides for giving extra time or additional time to the persons suffering from physical disability in the competitive examinations. Learned counsels have submitted that this provision about the extra time ought to have been mentioned in the advertisement as well as in the admit cards, issued to the candidates, but the same was not mentioned therein. Learned counsels, accordingly, submitted that the candidates suffering from physical disabilities were thus, deprived of the benefits of extra time in the preliminary examination. 6. Learned counsels, accordingly, submitted that the candidates suffering from physical disabilities were thus, deprived of the benefits of extra time in the preliminary examination. 6. At this stage itself it needs to be made clear that in spite of our putting specific question to the learned counsels for the petitioners, whether they have made the statements on oath, that they had demanded such extra time and it was denied to them, but there is no answer to this question by the learned counsels. Learned counsels only harped upon the submission that this provision for extra time ought to have been mentioned in the admit card itself, which was not there. We see no merit in this submission of learned counsels for the petitioners, in absence of any statement on oath, that they demanded the extra time, which was denied to them. Even otherwise, if the petitioners had any objection of non-mentioning of this facility in the admit card itself, they ought to have raised this point before conducting the preliminary examination, and they cannot be allowed to raise this point after taking part in the preliminary examination without any objection, and after being unsuccessful in the examination. Even otherwise, there is no averment in the writ applications, that the physical disabilities of the petitioners are such, that providing extra time to them was necessary, as they had difficulty in writing. 7. The next point that has been taken by the learned counsels for the petitioners is that in the advertisement, it has been mentioned that benefit of reservation shall be given only to those candidates, who are local residents of Jharkhand, and not the residents of the other States. 8. Though, this question has been raised by the learned counsels for the petitioners only in the arguments stage, but the fact remains that this provision is for those, who belonged to the reserved categories on the basis of caste, and not on the basis of their disabilities. This provision is not applicable to the writ petitioners as they do not belong to the reserved category, caste wise, and this point cannot be taken by them, as this is not a public interest litigation. Even otherwise, this point is raised only during arguments, without making any corresponding averment in the writ application. This provision is not applicable to the writ petitioners as they do not belong to the reserved category, caste wise, and this point cannot be taken by them, as this is not a public interest litigation. Even otherwise, this point is raised only during arguments, without making any corresponding averment in the writ application. This apart, this question is also no more res integera, and is also settled and upheld up to Supreme Court in several cases. Reference in this connection may be have to the decisions of the Apex Court in Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College & Ors., reported in (1990) 3 SCC 130 ; Action Committee on Issue of Caste Certificate to SCs STs. & Anr. Vs. Union of India & Anr., reported in (1994) 5 SCC 244 ; Melwin Chiras Kujur Vs. State of Maharashtra & Ors., reported in (2015) 17 SCC 549; and Bir Singh Vs. Delhi Jal Board and Ors., reported in (2018) 10 SCC 312 . 9. The third point taken by learned counsel for the petitioners is that the answer of some questions, which were asked in the preliminary examination were vague or incorrect, which shall affect the result of the candidates. 10. This question of vagueness / incorrectness of the answers to the questions has been raised by other candidates also in other writ petitions, viz., W.P.(C) No. 3931 of 2019 [Sonu Choudhary Versus The State of Jharkhand & Ors.] and also in W.P.(C) No. 3934 of 2019 [Ashutosh Kumar Singh Versus The State of Jharkhand & Ors.], and this question has been settled by a Division Bench of this Court by a detailed Judgment dated 14.8.2019, relying upon the decision of the Hon'ble Apex Court in Ram Vijay Singh and Ors. Vs. State of Uttar Pradesh & Ors., reported in (2018) 2 SCC 357 , holding that this Court had little scope to enter into the question raised in the writ applications, particularly in view of the fact that the Expert Committee came out with key answers after consideration of the objections raised to the model answers published by the J.P.S.C. 11. Lastly, learned counsels for the petitioners have raised the question that cut-off marks were high, which ought not to have been so high. 12. Lastly, learned counsels for the petitioners have raised the question that cut-off marks were high, which ought not to have been so high. 12. Learned counsel for the respondent J.P.S.C., has opposed the prayer and has pointed out from the counter affidavits, filed on behalf of the J.P.S.C., that these petitioners are suffering from loco-motor disabilities and they belong to unreserved category, in which, there is horizontal reservation for them, which comes to two seats. It is stated in the counter affidavit that in the unreserved category, the cut-off marks was 76 and for physically handicapped persons, the cut-off marks was 63. These cut-off marks are based on the marks obtained by the last selected candidate out of the candidates almost 15 times of the total vacancies category wise. The petitioners secured less marks than the last selected physically handicapped candidate in unreserved category, and as such they could not be declared successful in the preliminary examination. It is categorically stated in one of the counter affidavits that in the unreserved category, 32 candidates have been selected, who belonged to physically handicapped category, and as such sufficient number of persons belonging to physically handicapped category are going to appear in the main examinations, which are going to be held shortly. On the basis of these averments, made in the counter affidavits, filed on behalf of the J.P.S.C., it is submitted by learned counsels that the petitioners were unsuccessful in the preliminary examination and they have not been selected for the mains examinations. 13. Learned counsels for the J.P.S.C., further submitted that all the other points raised by the petitioners ought to have been raised prior to appearing in the examination and these questions cannot be raised after they appeared in the examination without any objection, and they became unsuccessful in the examination. 14. Having heard learned counsels for both the sides, we find that the only question that has to be decided in this case is whether the petitioners came in the zone of consideration on the basis of their marks in preliminary examination or not. Admittedly, for the persons belonging to physically handicapped category, there is a provision of horizontal reservation in all the categories based on caste, i.e., UR category, S.C. category, S.T. category, B.C.-I category and B.C.-II category. Admittedly, for the persons belonging to physically handicapped category, there is a provision of horizontal reservation in all the categories based on caste, i.e., UR category, S.C. category, S.T. category, B.C.-I category and B.C.-II category. The petitioners belong to unreserved category and the last selected candidate belonging to physically handicapped category within unreserved category, had obtained 63 marks in the preliminary examination. Sufficient number of candidates even in the physically handicapped category, were thus, available for appearing in the main examinations even as per the condition that the candidates upto15 times of the total vacancies, category wise shall be called for appearing in the main examinations. The petitioners have been declared unsuccessful, because they could not get the marks bagged by the last selected candidate in their category. As such, their writ applications are fit to be dismissed on this score alone. 15. All other questions, which have been raised by the petitioners, i.e. one with regard to providing extra time has already been answered earlier in this Judgement, and one with regard to the vagueness / incorrect answers have already been decided by us in separate writ applications, as stated earlier. The submission that cut-off marks were high in the examination is without any rational or basis, as the petitioners failed to get the marks bagged by the last selected candidate in their category. 16. For the forgoing reasons, we do not find any merit in both these writ applications, which are accordingly, dismissed. 17. Pending interlocutory application also stands disposed of.