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2025 DIGILAW 416 (GAU)

Gyamar Tana S/o Lt. Gyamar Tamu v. APPSC

2025-03-11

ROBIN PHUKAN

body2025
JUDGMENT : ROBIN PHUKAN, J. Heard Mr. T. Tagum, learned counsel for the petitioner. Also heard Mr. A. Apang, learned Senior Counsel assisted by Ms. K. Loya, learned counsel for the respondent No. 1; Mr. S. Tapin, learned Senior Government Advocate for the respondent Nos. 2, 3 and 4; Mr. R. Saikia, learned counsel for the respondent Nos. 6, 7, 9, 10 and 11 and Mr. G. Taloh, learned counsel for the respondent No. 8. 2. The petitioner, Shri Gyamar Tana, has instituted this proceeding, under Article 226 of the Constitution of India, praying for the following reliefs: (i) To direct the respondent No. 1 (APPSC) to include and publish the petitioner’s name in the list of qualified candidates of Persons with Disabilities against PwD reserved quota in the result of written examination of Assistant Engineer (Civil) held on 09.06.2018 and 10.06.2018. (ii) To direct the respondent No. 1 to call the petitioner for viva-voce/interview and recommend him for appointment to the post of Assistant Engineer (Civil) against the reserved quota of Persons with Disabilities. (iii) To cancel/rescind the appointment order No. SPWD- 08/2019, dated 31.07.2019, in respect of the private respondent No. 6 and the appointment order No. SRWD- 04/2012/14-26, dated 13.08.2019, in respect of respondent Nos. 7 and 8, to the post of Assistant Engineer (Civil), in the Department of PWD and in the Department of WRD, respectively. (iv) To cancel/rescind the appointment order No. SRWD- 33/2004, dated 15.07.2019, signed on 16.07.2019, in respect of the private respondent Nos. 9, 10 and 11 to the post of Assistant Engineer (Civil), in the Department of RWD. Background facts:- 3. The background facts, leading to filing of the present petition, are briefly stated as under: “The Arunachal Pradesh Public Service Commission (APPSC) issued an advertisement for filling up of 60 posts for Assistant Engineer (Civil) under various engineering departments, Government of Arunachal Pradesh, vide Memo No. PSC-R(B)/07/2017, dated 04.07.2017 and subsequent addendum even number dated 14.09.2017, 22.02.2018 and 24.04.2018. In the said advertisement, the APPSC had fixed 45% of cut off marks in aggregate in written examination for calling candidates to viva-voce/interview. It was also indicated in the aforementioned advertisement that out of 60 posts, 5 posts were reserved for Persons with Disabilities (PwD). In the said advertisement, the APPSC had fixed 45% of cut off marks in aggregate in written examination for calling candidates to viva-voce/interview. It was also indicated in the aforementioned advertisement that out of 60 posts, 5 posts were reserved for Persons with Disabilities (PwD). The petitioner herein being locomotor disability/orthopaedically handicapped and having fulfilled the eligibility criteria as mentioned in the advertisement dated 04.07.2017, had applied for the post of Assistant Engineer (Civil) against reserved quota for PwD. Thereafter, the APPSC had shortlisted the name of the petitioner against reserved quota of PwD and he participated in the written examination which was held on 09.06.2018 and 10.06.2018, the result of which was declared on 12.02.2019, vide notification No. PSC-R(B)/07/2017. But, the petitioner had found neither his Roll Number nor any PwD candidates in the result notification except only one candidate, namely, Nabam Yate. Thereafter, the said candidate was selected against the PwD reserved quota along with other 58 candidates. Thereafter, the petitioner had filed an RTI application seeking his marks statement in written examination, and accordingly, on 18.10.2019, he received the requisite information and found that he qualified the written examination by securing 48.375% marks in aggregate. Despite, his name did not figure in the list of qualified PwD candidates for which he was not called to appear in the viva- voce/interview against the reserved quota of PwD by APPSC. Thereafter, the petitioner had filed one representation on 25.10.2019, for conducting his viva-voce/interview against PwD reserved quota as he was qualified in the written examination, but, the same failed to yield any result. Being aggrieved, the petitioner has approached this Court by filing the present petition with the aforementioned reliefs.” 4. The APPSC/respondent No. 1 has filed affidavit-in-opposition denying the averments made in the petition. In the said affidavit, the APPSC has taken a stand that it had followed the Government Office Memorandum No. OM- 54/2006, dated 07.01.2008, for selection of candidates from written examination to viva-voce and as per the said Office Memorandum, the candidates had been selected at the ratio 1:3 subject to securing of minimum 33% marks in each paper and aggregate 45% marks. Another stand taken by the APPSC is that there are no separate rules/provisions for relaxation for any reserved categories till viva-voce test and that even for Persons with Disabilities (PwD) candidates, there is no relaxation in recruitment examination at written examination stage. Another stand taken by the APPSC is that there are no separate rules/provisions for relaxation for any reserved categories till viva-voce test and that even for Persons with Disabilities (PwD) candidates, there is no relaxation in recruitment examination at written examination stage. The reservation of post is counted at final stage i.e. after viva-voce and this rule is applicable to all posts/recruitment examinations including the post of Assistant Engineer (Civil), vide Advertisement No. PSC-R(B)/07/2017, dated 04.07.2017, and the reservation rosters for respective departments are provided by concerned department. The respondent No. 1/APPSC has also taken a stand that in the present selection, the Commission had selected 180 candidates for 60 posts (60 x 3 = 180) and there are no separate rules/provisions for relaxation for any reserved categories till date. Even for PwD candidates, there is no such relaxation in other recruitment examinations at written examination stage. The reservation of post is counted at final stage only i.e. after viva-voce and this rule is applicable to all posts/recruitment examinations, and that one PwD candidate, namely, Nabam Yate, bearing Roll No. 102002 was within the merit list of 180 candidates in the written examination and she was called for interview and she had been selected and recommended for appointment to the post of Assistant Engineer under the Department of PHE & WS, though her name did not appear in the top 60 in the overall merit list. 5. The respondent No. 4/Water Resource Department has filed affidavit-in- opposition, wherein it is stated that the appointment of respondent Nos. 7 and 8 are not illegal and they were appointed on recommendation of the APPSC and that the dispute regarding the selection has to be settled at the APPSC level as the said respondents were appointed on being recommended by the APPSC. 6. The private respondents, being respondent Nos. 6, 7, 9, 10 and 11 have also filed affidavit-in-opposition, wherein it is stated that the respondent No. 6, 7, 9, 10 and 11 were listed at Sl. Nos. 24, 12, 56, 57 and 58, respectively, in the merit list, and they were not selected against the reserved quota and as such, they have contended to dismiss this petition. 7. 6, 7, 9, 10 and 11 have also filed affidavit-in-opposition, wherein it is stated that the respondent No. 6, 7, 9, 10 and 11 were listed at Sl. Nos. 24, 12, 56, 57 and 58, respectively, in the merit list, and they were not selected against the reserved quota and as such, they have contended to dismiss this petition. 7. The petitioner herein has filed affidavit-in-reply to the affidavit-in- opposition filed by the respondents, wherein it is stated that out of 60 posts advertised by the APPSC, 5 posts were identified and reserved for Persons with Disabilities (PwD) and 55 posts were for general class of APST/General candidates and in view of the Office Memorandum No. OM-54/2006, dated 07.01.2008, the candidate who secures 45% of aggregate total marks in written examination has to be called for appearing in viva-voce test, at the ratio 1:3, and that being the position, the APPSC ought to have called 15 candidates against 5 posts reserved for PwD candidates and 165 candidates against 55 posts meant for general class of APST/General candidates, and thus, the same comes to 180 candidates. But, the Commission had selected only one candidate, namely, Nabam Yate against 5 posts reserved for PwD candidates and 179 candidates against 55 posts of general class instead of 165 candidates, which ultimately infringed the fundamental right of the petitioner. It is also stated that as per the provision of Sections 33 and 34 of the Rights of Persons with Disabilities Act, 2016 (‘Act of 2016’, for short) and sub-rule (4) of Rule 11 of the Rights of Persons with Disabilities Rules, 2017 (‘Rules of 2017, for short), against the 5 posts reserved for PwD candidates, the competition has to be done among the various categories of PwD candidates only as separate class, not with the general class of APST/General candidates. 7.1. However, in the case in hand, the APPSC had misapplied the Act of 2016 and the Rules of 2017 and the guidelines thereof and illegally set the competition of PwD candidates with general class of APST/General candidates. 7.1. However, in the case in hand, the APPSC had misapplied the Act of 2016 and the Rules of 2017 and the guidelines thereof and illegally set the competition of PwD candidates with general class of APST/General candidates. Thus, the selection of PwD candidates had not been done on the basis of merit list among the PwD candidates, but on the basis of the over all merit of all the candidates, which is nothing but gross misapplication and abuse of the provision of law by the APPSC, which is per-se illegal and defeat the purpose and objective of the Act of 2016 and the Rules of 2017 made thereunder. It is also stated that once posts are identified and reserved in accordance with provision of Sections 33 and 34 of the Act of 2016, the objective of such reservation cannot be frustrated by the respondent No. 1/APPSC by adopting illegal recruitment process which amounts to denial of statutory reservation as provided under the Act of 2016 and the Rules of 2017. 7.2. The petitioner having been secured 48.375% marks in the written examination against the 5 posts reserved for PwD candidates, he ought to have been called for viva-voce test by the APPSC and in the event of finding him eligible in the viva-voce test, could have been selected against the reserved category of post and therefore, it is contended to allow the petition. Submissions:- 8. Mr. Tagum, learned counsel for the petitioner submits that by reading the provisions of Sections 33 and 34 of the Act of 2016 and sub-rule (4) of Rule 11 of the Rules of 2017 made thereunder, there remains no iota of doubt in mind that the competition of reserved category of the post for PwD candidates has to be held only amongst the PwD candidates. By virtue of their disability, they are weak in merit in comparison to the candidates of general category and as such, allowing them to compete with the candidates of general category, the object of the Act and the Rules would be violated and exactly the same has happened in the case of the present petitioner. Mr. By virtue of their disability, they are weak in merit in comparison to the candidates of general category and as such, allowing them to compete with the candidates of general category, the object of the Act and the Rules would be violated and exactly the same has happened in the case of the present petitioner. Mr. Tagum also submits that as per the Office Memorandum dated 07.01.2008, selection of candidates for each category has to be done at the ratio of 1:3 and since out of 60 posts, 5 posts are reserved for PwD, the candidates ought to have been called for viva-voce test under PwD category would have been 15. But, instead of doing the same, the APPSC has called only one candidate for viva-voce and selected her under the PwD category, and they ought to have called 165 candidates against the 55 posts of general category candidates, instead of 179 candidates. Thus, there is ex-facie contravention of the object of the Act of 2016 and consequently, the right of the petitioner has been violated and therefore, Mr. Tagum has contended to allow this petition. 8.1. Mr. Tagum, learned counsel for the petitioner has referred to the following decisions in support of his submission: (i) Rajesh Kumar Daria vs. Rajasthan Public Service Commission and Ors. , reported in (2007) 8 SCC 785 (ii) Justice Sunanda Bhandare Foundation vs. Union of India and Anr. , reported in (2014) 14 SCC 383 (iii) Union of India vs. National Federation of the Blind reported in ( 2013 ) 10 SCC 772 (iv) J. Jayalalithaa and Ors. vs. State of Karnataka and Ors. , reported in (2014) 2 SCC 401 (v) Vikash Kumar vs. Union Public Service Commission and Ors. , reported in (2021) 5 SCC 370 (vi) Queen Sarma vs. State of Assam and Ors. , reported in (2014) 2 GLR 552 9. Per contra, Mr. Apang, learned Senior Counsel for the respondent No. 1/APPSC submits that the examination was conducted as per the Office Memorandum No. OM-54/2006, dated 07.01.2008, and the principle of reservation is applied at the final stage i.e. after viva-voce test only and the said principle is followed in all the recruitment processes including the recruitment process of the petitioner. Mr. Apang, learned Senior Counsel for the respondent No. 1/APPSC submits that the examination was conducted as per the Office Memorandum No. OM-54/2006, dated 07.01.2008, and the principle of reservation is applied at the final stage i.e. after viva-voce test only and the said principle is followed in all the recruitment processes including the recruitment process of the petitioner. Mr. Apang also submits that the advertisement was published on 04.07.2017 and the Rules of 2017 was published subsequently, and as such, no illegality or impropriety is committed by the APPSC and therefore, Mr. Apang has contended to dismiss the petition. 10. On the other hand, Mr. Tapin, learned Senior Government Advocate for the respondent Nos. 2, 3, 4 and 5 also submits that the selection has been made in accordance with the Office Memorandum No. OM-54/2006, dated 07.01.2008, and as such, no illegality or impropriety is committed by the APPSC, and therefore, it is contended to dismiss the petition. In support of his submission, Mr. Tapin has referred to a decision of Hon’ble Supreme Court in the case of Rekha Sharma vs. Rajasthan High Court, Jodhpur and Anr. , reported in 2024 SCC OnLine SC 2109 11. However, Mr. Saikia, learned counsel for the respondent Nos. 6, 7, 9, 10 and 11 and Mr. Taloh, learned counsel for the respondent No. 8 submit that the aforementioned respondent Nos. 6, 7, 9, 10 and 11 were selected on the basis of merit at Sl. Nos. 24, 12, 56, 57 and 58, and respondent No. 8 at Sl. No. 15, not against the reserved category post and as such, their selection and appointment are not at all illegal and therefore, it is contended to dismiss the petition. 12. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the decisions referred by Mr. Tagum, learned counsel for the petitioner and Mr. Tapin, learned Senior Government Advocate for the respondent Nos. 2, 3, 4 and 5. 13. 12. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the decisions referred by Mr. Tagum, learned counsel for the petitioner and Mr. Tapin, learned Senior Government Advocate for the respondent Nos. 2, 3, 4 and 5. 13. In view of the submissions advanced at the bar and the dispute projected before this Court, the issue to be answered by this Court is formulated as under: (i) At what stage the reservation policy is to be applied, whether from the very beginning of the selection process i.e. the preliminary examination, mains (written examination) or at the stage of viva-voce examination? (ii) Whether the approach adopted by the APPSC in counselling the candidates of benchmark disabilities to compete with the general category candidates is in accordance with the provision of the law? The legal framework:- (a) The Rights of Persons with Disabilities Act, 2016 : 14. This Act is enacted with the following objectives: “ An Act to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto. WHEREAS the United Nations General Assembly adopted its Convention on the Rights of Persons with Disabilities on the 13th day of December, 2006. AND WHEREAS the aforesaid Convention lays down the following principles for empowerment of persons with disabilities,- (a) respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons; (b) non-discrimination; (c) full and effective participation and inclusion in society; (d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; (e) equality of opportunity; (f) accessibility; (g) equality between men and women; (h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities; AND WHEREAS India is a signatory to the said Convention; AND WHEREAS India ratified the said Convention on the 1st day of October, 2007; AND WHEREAS it is considered necessary to implement the Convention aforesaid.” 14.1. Relevant provisions of the Act:- “ 33. Identification of posts for reservation. Relevant provisions of the Act:- “ 33. Identification of posts for reservation. The appropriate Government shall- (i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34; (ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and (iii) undertake periodic review of the identified posts at an interval not exceeding three years. 34. Reservation. - (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:- (a) blindness and low vision; (b) deaf and hard of hearing; (c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy; (d) autism, intellectual disability, specific learning disability and mental illness; (e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities: Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time: Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section. (2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government. (3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.” (b) The Rights of Persons with Disabilities Rules, 2017: “ 11. Computation of vacancies.- (1) For the purposes of computation of vacancies, four percent of the total number of vacancies including vacancies arising in the identified and non-identified posts in the cadre strength in each group of posts shall be taken into account by the appropriate Government for the persons with benchmark disabilities: Provided that the reservation in promotion shall be in accordance with the instructions issued by the appropriate Government from time to time. (2) Every Government establishment shall maintain a vacancy based roster for the purpose of calculation of vacancies for persons with benchmark disabilities in the cadre strength as per the instructions issued by the appropriate Government from time to time. (3) While making advertisement to fill up vacancies, every Government establishment shall indicate the number of vacancies reserved for each class of persons with benchmark disabilities in accordance with the provisions of section 34 of the Act. (4) The reservation for persons with disabilities in accordance with the provisions of section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class.” Arunachal Pradesh Rights of Persons with Disabilities Rules, 2018:- 15. The respondent No. 2 has filed an additional affidavit and brought on record the Arunachal Pradesh Rights of Persons with Disabilities Rules, 2018. The respondent No. 2 has filed an additional affidavit and brought on record the Arunachal Pradesh Rights of Persons with Disabilities Rules, 2018. Rule 14 of the said Rules provides for reservation of Persons with Disabilities, which reads as under: “ 14. Reservation for Persons with Disabilities.: (1) In every establishment four percent (4%) of the vacancies shall be reserved for persons or class of persons with benchmark disabilities of which, one percent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent for persons with benchmark disabilities under clauses (d) and (e), namely:- (a) blindness and low vision; (b) deaf and hard of hearing; (c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy; (d) autism, intellectual disability, specific learning disability and mental illness; (e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities. (2) The posts identified for each disability under Section 34 of the Act shall be treated as horizontal reservation and the vacancies for persons with benchmark disabilities shall be maintained as a separate class; Provided that where the nomenclature of any post in the State Government is different from the posting Central Government or any post in the State Government does not exist in any department of the Central Government, the matter shall be referred to the expert committee constituted under rule 11 for identification of the equivalent post in the State Government. The said expert committee shall identify the equivalent post on the basis of nature of job and responsibility of each post. (3) Where in any recruitment year any vacancy reserved under this rule cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reason, such vacancy shall be carried forward and filled up as per provisions of Section 34(2) of the Act/ (4) While selecting a person for appointment on any post identified suitable for any category of persons with benchmark disabilities, if other things are equal between such persons with benchmark disability and the person without any disability, preference shall be given to the person with benchmark disability even in the excess of the reservation prescribed for them, irrespective of when the posts reserved for persons with disabilities have been filled up or not. (5) Reservation in posts identified for one or two categories: (a) If a post is identified suitable only for one category of disability, reservation in that post shall be given to persons with that disability only; (b) Reservation of 4% shall not be reduced in such cases and total reservation in the post will be given to persons suffering from the disability for which it has been identified; (c) If in case the post is identified suitable for two categories of disabilities, reservation shall be distributed between persons with those categories equally, as far as possible. It shall, however, be ensured that reservation in different posts in the establishment is distributed in such a way that the persons of all four categories of disabilities, as far as possible, get equal representation.” Precedents:- 16. In the case of Shantabai Laxman Doiphode vs. State of Maharashtra , reported in 2020 0 Supreme(Bom) 1013 , a Division Bench of Bombay High Court, after referring to various decisions of Hon’ble Supreme Court, has deduced as under: “ 14. From the law expounded and clarified in the above referred cases following principles emerge:- (i) Kinds of reservations that have been developed over a period of time are “vertical” and “horizontal” reservations. The “vertical” reservations are those which are meant for socially backward classes as provided under Article 16(4) while “horizontal” reservations are those which are to be found in Articles 16(1) or 15(3). (ii) When horizontal or special reservations are provided within a particular social reservation, the rule applicable to vertical reservation i.e. candidates belonging to various reserved categories can compete for a non-reserved category, will not apply. The rule governing such a case would be that the unfilled special or horizontal posts would have to be filled up by selecting other candidates falling in that special reservation category, in accordance with their merit, if available, with a further rider that such candidates should also fall within that particular social reservation category. Horizontal reservation thus specifically provided within a social reservation is an instance of compartmentalized reservation and such reservation is normally not interchangeable, subject to statutory provisions. (iii) In law, there is no reservation category known as open category. Seats in this category can be filled up by considering all the candidates, irrespective of their backward class or caste or special class, in accordance with merit. (iii) In law, there is no reservation category known as open category. Seats in this category can be filled up by considering all the candidates, irrespective of their backward class or caste or special class, in accordance with merit. (iv) The appropriate course for filling up the open category seats, social reservations category seats and horizontal reservations category seats would be as follows :- (a) First, open category seats should be filled up from amongst all the candidates, irrespective of the social reservation categories to which they may belong, on the basis of their relative merit. In case, some of the candidates selected in open category quota, belong to social reservations, these candidates would not be considered for filling up the social reservation category seats and the seats available therein, which otherwise would have been filled in by these candidates, shall be additionally available for being filled up from amongst the candidates belonging to that social reservation category, in accordance with inter-se merit. (b) In case special reservation for women, physically handicapped etc., is horizontally made within the social reservation categories such as S.C., S.T. and Other Backward Classes, the first step would be to fill up all the seats in the respective social reservation categories by selecting the candidates belonging to each of the respective categories in accordance with inter-se merit. The second step would be to find out as to how many of the candidates selected in each of the social reservations categories would qualify to fill up the seats reserved for special category candidates and if it is found that the candidates already selected also qualify to fill up the quota horizontally reserved within such social reserved category, there would be no need to disturb the list of selected candidates. But, in case it is found that there are no candidates or less number of candidates who would qualify for horizontal reservation category within a particular social reservation category, the void left in the horizontal reservation quota within the same social reservation category, would have to be filled in by selecting the requisite number of candidates belonging to the special reservation category within that social reservation category, in accordance with inter-se merit after deleting the equivalent number of candidates selected to fill up the social reservation category. (c) When horizontal reservation for women is made within open category, and it being not a category of reservation, the seats meant for women in that category, would have to be filled up by selecting women irrespective of their caste, creed or backward class, in accordance with their inter-se merit. (d) Ideally speaking, horizontal reservations meant for special category persons provided for in terms of Article 16(1) or Article 15(3), should be made within the respective social reservation categories.” 17. In the case of Rekha Sharma (supra), while dealing with horizontal reservation, Hon’ble Supreme Court has held as under: “ 9. It is quite well settled that the Horizontal Reservation is of two types : - (i) Compartmentalised Horizontal Reservation, and (ii) Overall Horizontal Reservation. The Compartmentalised Horizontal Reservation is such wherein the proportionate vacancies are reserved in each vertical reserved category. However, in case of Overall Horizontal Reservation, the Reservation is provided on the total post advertised i.e. such reservation is not specific to each vertical category. As per the advertisement dated 22.07.2021, the vacancies in case of women candidates were classified/identified for each category i.e. General, OBC, SC, ST, MBC whereas for the Persons with benchmark disabilities, no such vacancies were mentioned in the said categories. Further, in the three-tier process of the Examination Scheme, the number of candidates to be admitted to the Main Examination were fifteen times the total number of vacancies (category wise) and the candidates had to qualify themselves by securing the minimum percentage of marks fixed for each of the categories in the Preliminary Examination. Therefore, the Persons with benchmark disabilities falling under the Overall Horizontal Reservation had to qualify for the Mains Examination by securing minimum cut off marks fixed for the concerned category in which he/she had applied. 10. Apart from the fact that there was nothing provided in the advertisement for the fixation of cut off marks for the Persons with benchmark disabilities, who fall under the Overall Horizontal Reservation, the learned counsels for the appellant have also failed to point out from the Rajasthan Judicial Services Rules, 2010 under which the recruitment process was undertaken, that such fixation of cut off marks for the Persons with benchmark disabilities was mandatory. The reliance placed by the learned counsels for the appellants on the notification dated 14.10.2021 issued by the Rajasthan Government is also not helpful to them in as much as the said notification was given effect to, in the notification dated 16.04.2024 amending the RJS Rules, 2010, providing relaxation in age and concession of 5% in marks in favour of Persons with benchmark disabilities. None of the said notifications or amendment in the RJS Rules, 2010 make it mandatory on part of the respondents to declare separate cut off marks for the Persons with benchmark disabilities. 11. It cannot be gainsaid that the said Act of 2016 is a social legislation enacted for the benefit of the Persons with disabilities and its provisions must be interpreted in order to enhance its objectives, so that the Persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others as contemplated under the Act. However, there is no such provision either in the said Act of 2016 or in the Rules of 2018 framed by the State of Rajasthan, which could be said to have been violated by the respondents by not fixing the cut off marks for the Persons with benchmark disabilities. 12. Undisputedly, the reservation for the Persons with disabilities has been treated as Horizontal Reservation i.e. the reservation under Clause (1) of Article 16, and not the Vertical reservation i.e. the reservation under Clause (4) of Article 16 of the Constitution of India. In the case of Indra Sawhney v. Union of India the concept of “Vertical Reservations” and “Horizontal Reservations” has been aptly explained. The relevant paragraph 812 thereof reads as under:— “ 812. We are also of the opinion that this rule of 50% applies 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. 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. 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. Thus, in view of the said clarification made in Indra Sawhney , there remains no doubt that the reservation for persons with disabilities would be relatable to Clause (1) of Article 16 and the persons selected against this quota will be placed in appropriate category i.e. if he/she belongs to Scheduled Category, he/she will be placed in that category by making necessary adjustments, and if he/she belongs to open category, necessary adjustments will be made in the open category. 14. The concept of Overall Reservations and Compartmentalised Reservations is also aptly explained by this Court in Anil Kumar Gupta v. State of U.P. It has been observed therein that where the seats reserved for the Horizontal Reservations are proportionately divided amongst the Vertical (Social) Reservations and are not intertransferable, it would be a case of Compartmentalised Reservations, whereas in the Overall Reservation, while allocating the special reservation candidates to their respective social reservation category, the Overall Reservation in favour of special reservation categories has to be honoured. Meaning thereby the special reservations cannot be proportionately divided among the Vertical (Social) reservation categories, and the candidates eligible for special reservation categories have to be provided overall seats reserved for them, either by adjusting them against any of the Social/Vertical reservations or otherwise, and thus they are intertransferable.” 18. Meaning thereby the special reservations cannot be proportionately divided among the Vertical (Social) reservation categories, and the candidates eligible for special reservation categories have to be provided overall seats reserved for them, either by adjusting them against any of the Social/Vertical reservations or otherwise, and thus they are intertransferable.” 18. In the case of Rajesh Kumar Daria (supra), Hon’ble Supreme Court has held as under: “ 9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are “vertical reservations”. Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are “horizontal reservations”. Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385 ] , R.K. Sabharwal v. State of Punjab [ (1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] , Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] and Ritesh R. Sah v. Dr. Y.L. Yamul [ (1996) 3 SCC 253 ] .) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of “Scheduled Caste women”. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of “Scheduled Caste women”. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example: If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that “SC women” have been selected in excess of the prescribed internal quota of four.)” Office Memorandum:- 19. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that “SC women” have been selected in excess of the prescribed internal quota of four.)” Office Memorandum:- 19. It is to be noted here that the Government of India had issued several Office Memorandums clarifying the application of the Act of 2016 and the Rules of 2017, and the same also throws valuable insight to the issue in question and therefore, this Court is inclined to refer some of them herein below: 19.1 In O.M. No. 36035/16/91-Estt.(SCT), dated 18.02.1997 and O.M. No. 36035/3/2004-Estt.(Res), dated 29.12.2005, at Sl. No. 4 under the heading ‘Adjustment Against Unreserved Vacancies’, it is provided that: “ 4.1 In the category of posts which are identified suitable for persons with benchmark disabilities, a person with benchmark disability cannot be denied the right to compete for appointment by direct recruitment against an unreserved vacancy. Thus a person with benchmark disability can be appointed by direct recruitment against vacancy not specifically reserved for the persons with benchmark disability, provided the post is identified suitable for persons with benchmark disability of the relevant category. 4.2 Persons with benchmark disabilities selected without relaxed standards along with other candidates, will not be adjusted against the reserved share of vacancies. The reserved vacancies will be filled up separately from amongst the eligible candidates with benchmark disabilities which will thus comprise of candidates with benchmark disabilities who are lower in merit than the last candidate in merit list but otherwise found suitable for appointment, if necessary, by relaxed standards.” 20. It is also to be noted here that in Union Of India vs. Pankaj Kumar Srivastava & Ors. In W.P.(C) 4902/ 2013 , decided on 11 October, 2013 , Delhi High Court had issued some direction for the implementation of the scheme of reservation as contained in Section 33 of the Persons with Disabilities (Equal Opportunity) Act, 1995. It is also to be noted here that in Union Of India vs. Pankaj Kumar Srivastava & Ors. In W.P.(C) 4902/ 2013 , decided on 11 October, 2013 , Delhi High Court had issued some direction for the implementation of the scheme of reservation as contained in Section 33 of the Persons with Disabilities (Equal Opportunity) Act, 1995. And against the same, the Union of India had preferred one appeal before the Hon’ble Supreme Court and subsequently, it had issued the O.M. dated 27.09.2022 in respect of clarification with regard to the concept of ‘own merit’ in respect of reservation for persons with benchmark disabilities as under:- “ No.36035/02/2017-Estt(Res) Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training North Block, New Delhi. Dated Sept. 27, 2022 Office Memorandum Subject: Reservation for Persons with Benchmark Disabilities – Clarification with regard to the concept of own merit. The undersigned is directed to refer to Para 4.2 of the OM of even number, dated 15.1.2018 and Para 7.2 of OM No. 36012/1/2020-Estt(Res.-II), dated 17.5.2022, which, inter alia, states that the Persons with Benchmark Disability (PwWBD) selected without relaxed standard, along with other unreserved candidates, will not be adjusted against the vacancies reserved for them and that the vacancies reserved for PwBDs will be filled up separately from amongst the eligible PwBD candidates who are lower in merit than the last unreserved candidate in merit list but otherwise found Suitable for appointment, if necessary, by relaxed standard. 2. Queries have been received in this Department, from time to time, on the following three aspects: – i. Whether PwBD candidates who have qualified on their own merit without any relaxed standard should be appointed against the vacancies not reserved for PwBDs, i.e., against the unreserved vacancies which will be in addition to the vacancies earmarked for PwBD category candidates; ii. Whether the facility of a scribe availed by a PwBD candidate, along with the compensatory time, shall be treated as relaxed standard; and iii. Whether the disability a PwBD candidate is suffering from, shall be treated as relaxation in medical standard, which will disable him from being treated as own merit Category. 3. Whether the facility of a scribe availed by a PwBD candidate, along with the compensatory time, shall be treated as relaxed standard; and iii. Whether the disability a PwBD candidate is suffering from, shall be treated as relaxation in medical standard, which will disable him from being treated as own merit Category. 3. In this connection, it is also pertinent to mention that this Department had constituted a Committee which deliberated upon the above three aspects, particularly in respect of Civil Services Examination (CSE), and recommended, inter- alia, the following: – i. the ‘own merit’ concept for PwBD category candidates Should be implemented in CSE, in accordance with Establishment (Reservation) Division’s OM No.36035/2/2017-Estt(Res), dated 15.01.2018. ii. The facility of scribe, extra-time and relaxation in medical standards available to PwBD category candidates should not be treated as ‘relaxed standard’. 4. Accordingly, the following clarifications are issued: – i. In line with the spirit of the OM No.36035/2/2017-Estt(Res), dated 15.01.2018, and OM No. 36012/1/2020-Estt(Res.-II), dated 17.5.2022 on the subject, the concept of own merit for PWBD shall be implemented in all direct recruitment examinations, including the CSE and promotions, wherever applicable. In other words, PwBD category candidates selected without relaxed standard, along with other unreserved candidates, will not be adjusted against the reserved share of vacancies. The reserved vacancies will be filled up separately from amongst the eligible candidates with benchmark disabilities, who are lower in merit than the last unreserved candidate in general merit list, but otherwise found suitable for appointment, if necessary, by relaxed standards. ii. In accordance with Para 3 of the OM No.29- 6/2019-DD-III, dated 10.8.2022, issued by the Department of Empowerment of Persons with Disabilities, the facility of scribe, along with compensatory time shall not be treated as relaxed standard. DoPT, in agreement with this provision, reiterates that the facility of scribe taken by a PwBD candidate, along with compensatory time shall not be treated as relaxed standard. iii. In terms of Corrigendum No. 34-02/2015/DD- III(Pt.), dated 08.02.2019, the phrase ‘extra time or additional time’ is required to be replaced by the phrase ‘compensatory time’. iv. The spirit of the term ‘own merit’ will get defeated if the disability a person is suffering from, is treated as relaxed medical standard, as no PwBD will get the benefit of the term ‘own merit’ as stipulated in the OMs, dated 15.1.2018 and 17.5.2022 in such a scenario. iv. The spirit of the term ‘own merit’ will get defeated if the disability a person is suffering from, is treated as relaxed medical standard, as no PwBD will get the benefit of the term ‘own merit’ as stipulated in the OMs, dated 15.1.2018 and 17.5.2022 in such a scenario. Accordingly, it is clarified that disability of a person, which he is suffering from, shall not be treated as relaxed standard in medical fitness test for the purpose of ‘own merit’. 5. All the Ministries/Departments of the Government of India are requested to bring the above instructions to the notice of all the appointing authorities under their control to provide the benefit of ‘own merit’ to the PwBDs, in accordance with these guidelines. 6. This is being issued after having consultation with the Department of Empowerment of Persons with Disabilities and the Department of Legal Affairs. 7. This issues with the approval of Secretary (P) (S.P. Pant) Director (Res-II) Ph.23093074” 21. In the case in hand, the petitioner is a physically handicapped person and as such, he would come under Article 16(1) or 15(3) of the Constitution of India i.e. under horizontal reservation. Since he comes under the category of horizontal reservation, the principle of reservation applicable in vertical (social reservation) will not apply in his case in view of the object of enacting the beneficial provisions of the Act of 2016 and the Rules of 2017. Further, in view of the decision of Hon’ble Supreme Court in the cases of Rekha Sharma (supra) and Rajesh Kumar Daria (supra), and also in view the decision of Bombay High Court in the case of Shantabai Laxman Doiphode (supra), and also drawing premises from the O.M. dated 08.02.1997, 29.12.2005 and 27.09.2022, specially Clause 4(i), the classification issued by the Government of India, it can safely be concluded that the competition has to be held only between the candidates belonging to horizontal category, being they are weak than the open category candidates, they are not competent to compete with them. And as such, the object of the legislature is that competition has to be held only between them. And drawing premises from the decision of Hon’ble Supreme Court in the case of Rekha Sharma (supra), it can be safely concluded that it will be applicable from the stage of beginning of the recruitment process i.e. preliminary examination. 22. And as such, the object of the legislature is that competition has to be held only between them. And drawing premises from the decision of Hon’ble Supreme Court in the case of Rekha Sharma (supra), it can be safely concluded that it will be applicable from the stage of beginning of the recruitment process i.e. preliminary examination. 22. In the instant case, it appears that the respondent No. 1 had adopted two tier selection process i.e. written examination and viva-voce. It also appears that while publishing the advertisement, the respondent No. 1 has not fixed any cut off marks for the candidates belonging to PwD categories under horizontal reservation. However, it has fixed the cut off percentage for all the candidates as 45% in aggregate. The petitioner had secured 48.375% marks. Though no minimum percentage of mark was fixed for PwD categories, yet the petitioner had acquired the percentage of marks more than 45% in aggregate, by scoring 48.375% marks in the written examination. 23. And, it also appears that instead of allowing him to compete with the candidates having inter-se merit of the said category i.e. PwD categories under horizontal reservation, he was made to compete with the candidates of open category and while calling candidates to the viva-voce at the ratio of 1:3 against the total vacancy, he was ousted from the competition since the candidates belonging to general/open category had secured more marks than him. 24. Thus, the procedure adopted by the respondent APPSC, appears to be not the correct procedure as contemplated under the Act of 2016 and the Rule of 2017. If we examine the said procedure in the light of the ratio laid down in the cases discussed herein above, we afraid that same fails to withstand the legal scrutiny being contrary to statutory provision as well as Article 16(1) and 15(3) of the Constitution of India. 25. Though, the respondent No. 1/APPSC has taken a stand that it had applied the reservation policy after viva-voce examination, yet this Court afraid such an interpretation of the provision of the Act of 2016 will defeat/frustrate the very object of the legislature. Mr. Tagum, learned counsel for the petitioner has rightly pointed this out. 26. The petitioner herein, thus, succeeded in establishing a case for interference of this Court. Mr. Tagum, learned counsel for the petitioner has rightly pointed this out. 26. The petitioner herein, thus, succeeded in establishing a case for interference of this Court. In that view of the matter, this Court is inclined to allow this petition with following directions:- (i) the respondent No. 1 shall issue appropriate corrigendum by incorporating the name of the petitioner in the list of qualified candidate of PwD, against PwD reserved quota, in the result of written examination of Assistant Engineer (Civil), held on 09.06.2018 and 10.06.2018, (ii) thereafter, to call the petitioner to viva-voce examination, and (iii) in the event of being found eligible in viva-voce test, to recommend the name of the petitioner for being appointed to the post of Assistant Engineer (Civil) under the RWD against the reserved quota of PwD, that has been kept vacant pursuant to the order of this Court dated 01.03.2021. 27. The aforementioned exercise has to be carried out within a period of three months from the date of receipt of certified copy of this judgment and order. 28. It is not in dispute that the respondent Nos. 6, 7, 8, 9, 10 and 11 got selection on their own merit not against the reserved quota under PwD category and as such, the question of setting aside their selection and subsequent appointment does not arise at all. 29. In terms of above, the points formulated at para No. 13, stand answered. Interim order, passed earlier, stands merged with the final relief so granted. 30. The parties have to bear their own costs.