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HONOURABLE SRI JUSTICE ABHINAND KUMAR SHAVILI
W.P.Nos.31524 of 2021
ORDER:
This writ petition is filed seeking the following relief:
"To issue a writ, order or direction more particularly one in the nature of Writ of Mandamus or any other appropriate writ (i) declare that the Notification issued by the 2nd respondent vide R.C.No.41/Rect /Admn- 2/2021, dated 04/07/2021 in so far as prescribing the cutoff marks for PWDs and OCs at 40%, OBCs at 35% and SC and STs at 30% as illegal, arbitrary and violative of the directions of the Hon'ble Supreme Court and
(iv)declare that the PWD candidates are eligible for cut-off marks on par with SC and ST candidates and (v) consequently direct the respondents to evaluate Paper-II of the Writ Petitioner and consider him for further selection to the post of Assistant Public Prosecutor as per his eligibility and (vi) pass such order or other orders as this Hon'ble Court may deem fit and proper in the interest of justice."
Heard Smt K.Udaya Sri, learned counsel, representing Sri G.Sai Prasen, learned counsel appearing for the petitioner and learned Special Government Pleader appearing for the respondents.
It is the case of the petitioner that he is an orthopedically handicapped person and he is entitled for reservation in the matters of appointment and he is fully eligible and qualified to be appointed as Assistant Public Prosecutor. The 2nd respondent- Telangana State Level Police Recruitment Board issued a recruitment notification on 04.07.2021 inviting applications for the post of Assistant Public Prosecutor. In all, 151 vacancies were notified. In pursuance thereof, he participated in the written examination conducted on 24-10-2021 and results were declared on 27-11-2021. In the notification, it was stated that the candidates belonging to OC must secure minimum marks of 40%, Backward Classes must secure 35% and Schedule Castes and Schedule Tribes must secure 30% of marks.
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Learned counsel appearing for the petitioner contended that the written examination comprises of Paper-I and Paper-II and the if candidates secure minimum marks in Paper-I, then only Paper- II of those candidates will be evaluated. In the instant case, no minimum marks are prescribed for physically handicapped persons and the petitioner has secured 34% marks in Paper-I. Learned counsel further contended that since no minimum marks are prescribed for physically handicapped persons, the physically handicapped persons shall be granted relaxation of minimum marks on par with SC & ST candidates. In support of her contention, learned counsel relied on the judgment of the Apex Court in Civil Appeal No.2718 of 2020, dated 8.7.2020 i.e., Aryan Raj vs. Chandigarh Administration & Ors., wherein the Apex Court held as under:
"We are of the view that the High Court is correct on the bifurcation aspect. Further, insofar as the aptitude test having to be passed is concerned, the High Court is correct in saying that no exemption ought to be granted, but we follow the principle laid down in the Delhi High Court's judgment in Anamol Bhjandari (Minor) through his father/Natural Guardian v. Delhi Technological University 2012 (131) DRJ 583 in which the High Court has correctly held that people suffering from disabilities are also socially backward, and are therefore, at the very least, entitled to the same benefits as given to the Scheduled Castes/Scheduled Tribes candidates."
Learned counsel further contended that the Apex Court had followed the principle laid down by the Delhi High Court in Anamol Bhandari's case (referred to supra), wherein it was held that the people suffering from disability are also socially backward and they are entitled to the same benefits as given to the Scheduled Castes/Scheduled Tribes candidates. Learned counsel further contended that appropriate orders be passed in the writ petition directing the respondents to lower down the minimum 3 marks in favour of the physically handicapped candidates on par with SC & ST candidates and further direct the respondents to evaluate Paper-II answer script of the petitioner by duly extending the relaxation in favour of the physically handicapped candidates on par with SC & ST candidates.
Learned counsel appearing for the petitioner has by way of abundant caution argued that the petitioner may not be put to disadvantage on the ground of having participated in the selection process. In support of her contention, learned counsel relied on the judgment of the Apex Court in DR (Major) Meeta Sahai vs. State of Bihar and others1, whereunder the Apex Court held as under:
"However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising there from, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process."
Learned counsel appearing for the petitioner contended that if a candidate participates in the selection process, then only he would know the incurable defects and illegalities committed by the respondents. In the instant case, having participated in the selection process, the petitioner has realized that the respondents have not relaxed or prescribed any minimum cut of marks in the written examination. Learned counsel further contended that 1 (2019) 20 SCC 17 4 appropriate orders be passed in the writ petition directing the respondents to evaluate Paper-II of the petitioner by duly relaxing the minimum marks on par with SC & ST candidates.
Learned Government Pleader appearing for the respondents contended that the notification was issued on 04.07.2021 and in the notification itself, the respondents have made it very clear that in order to qualify in the written examination, the minimum marks was prescribed as 40% for OCs, 35% for BCs and 30% for SCs and STs. In the notification itself, it was made clear that the candidates must secure minimum qualifying marks in Paper-I, then only Paper-II of the candidates will be evaluated. Admittedly, in the instant case, the petitioner has not secured minimum qualifying marks as prescribed by the respondents and the petitioner is a member belonging to OC and incidentally, happened to be physically handicapped person, which mean that the petitioner was aware from the notification itself that he must secure minimum marks of 40% in order to ensure that his paper-II is evaluated. The petitioner has not raised any objections in respect of minimum marks prescribed in the notification and he has not challenged the notification. Therefore, the petitioner cannot challenge the selection and contend that minimum marks should be relaxed in respect of physically handicapped persons. Learned Government Pleader further contended that the decision relied upon by the petitioner in DR (Major) Meeta Sahai vs. State of Bihar and others (referred to supra) has dealt with incurable illegality and derogation of provisions of Constitution, such a issue is not involved in the present case. The notification itself made it 5 clear that one must secure minimum marks and the petitioner, belonging to OC must secure minimum marks of 40%. The petitioner, having understood the notification and having participated in the selection, cannot turn around and challenge the selection process and as a matter of right, he cannot seek relaxation by filing writ petition under Article 226 of the Constitution of India. The issue as to whether relaxation of minimum qualifying marks can be granted was considered by the Apex Court in State of U.P. & others vs. Vikash Kumar Singh and others2 wherein the Apex Court held as under:
"The learned Single Judge thereafter while quashing and setting aside the eligibility lists dated 18.3.2019 and 10.05.2019 has issued the Writ of Mandamus commanding or directing the competent authority to grant relaxation in qualifying service, which as such was permissible under Rule 4 of the Relaxation Rules, 2006. The word used in the Rule 4 of Relaxation Rules, 2006 is "May". Therefore, the relaxation may be at the discretion of the competent authority. The relaxation cannot be prayed as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because Rule permits relaxation, no writ of Mandamus can be issued directing the competent authority to grant relaxation in qualifying service. Therefore, the High Court has committed a grave error in issuing the writ of Mandamus commanding the competent authority to grant relaxation in the qualifying service. Consequently, the High Court has also erred in quashing and setting aside the eligibility lists dated 18.3.2019 and 10.05.2019, which as such were prepared absolutely in consonance with the Rules, 1990 and Rules, 2006. The impugned judgments and orders passed by the learned Single Judge as well as the Division Bench of the High Court are not sustainable in law."
In support of his contention, learned Government Pleader relied upon the judgment of the Apex Court in Ashok Kumar vs. State of Bihar3, and contended that the petitioner having participated in the selection process, turned around and 2 LL 2021 SC 672 3 2017(4) SCC 357 6 challenged the selections, more so, when the results have been declared by the respondents.
Having considered the rival submissions made by the learned counsel on either side, this Court is of the view that the respondents have issued a notification on 04-07-2021 and the petitioner was aware at the time of applying itself that he must secure minimum qualifying marks of 40%. Admittedly, the petitioner belongs to OC and incidentally, happened to be physically handicapped person. In the notification, no such minimum qualifying marks are prescribed in respect of physically handicapped candidates. If the petitioner wanted any relaxation in respect of physically handicapped quota, he ought to have challenged the notification itself contending that relaxation should be given to him as he is a physically handicapped person. Admittedly, in the instant case, the petitioner has neither moved his little finger nor submitted any representation seeking relaxation of minimum qualifying marks. Having participated in the written examination, he cannot turn around and contend that relaxation should be given to him in respect of minimum qualifying marks as a matter of right. The issue as to whether relaxation can be granted as a matter of right in respect of minimum qualifying marks or any other relaxations was considered by the Apex Court in State of U.P. vs. Vikash Kumar Singh ( referred to supra), wherein it was held that no relaxation can be granted as a matter of right. At best, the petitioner, if so advised, can submit a representation to the respondents seeking relaxation of minimum qualifying marks under physically 7 handicapped quota. But, this Court under Article 226 of the Constitution of India cannot give any direction as such. There are no merits in the writ petition.
Accordingly, the Writ Petition is dismissed. No costs.
_______________________________________ JUSTICE ABHINAND KUMAR SHAVILI Date: 02.12.2021 rkk