Rajasthan High Court

Jitendar Ganian S/O Sobhagya ... vs Rajasthan High Court, Jodhpur on 15 November, 2021

Bench: Akil Kureshi, Rekha Borana

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               D.B. Civil Writ Petition No. 3810/2021
Hari Narayan Yadav S/o Shri Mali Ram Yadav, Aged About 37
Years, R/o Village Sandasar Post Kaladera, Tehsil Choumu
District Jaipur.
                                                                    ----Petitioner
                                    Versus
Rajasthan     High     Court       Jodhpur,         Through       Its   Registrar
(Examination)
                                                                 ----Respondent

D.B. Civil Writ Petition No. 3855/2021

1. Jitendar Ganian S/o Sobhagya Chand, Aged About 37 Years, R/o Dhani Sagru Ki Post, Maonda Khurd, Tehsil Neem Ka Thana, District Sikar, Rajasthan.

2. Hari Singh S/o Rameshwar Lal, Aged About 44 Years, R/o Ward No. 2, Hiwasar Via Titanwad, District Jhunjhunu, Rajasthan.

3. Bablesh Kumar S/o Prabhat Singh Chahar, Aged About 35 Years, R/o Village Charan Ki Dhani, Post Prasarampura, Tehsil Nawalgarh, District Jhunjhunu, Rajasthan.

----Petitioners Versus

1. Rajasthan High Court, Jodhpur, Through Registrar General.

2. The Registrar (Examination), Rajasthan High Court, Jodhpur.

----Respondents D.B. Civil Writ Petition No. 4089/2021 Laxman Ram Jat Son Of Shri Ram Chandra Jat, Aged About 40 Years, Resident Of Village Kishorpura-Charanwas, Post Karansar, Tehsil Kishangarh Renwal, District Jaipur.

----Petitioner Versus

1. Rajasthan High Court Jodhpur, Through The Registrar General.

2. The Registrar (Administration), Rajasthan High Court, Jodhpur.

(2 of 5) [CW-3810/2021]

3. The Registrar (Examination Cell), Rajasthan High Court, Jodhpur.

----Respondents

For Petitioner(s) : Mr. Mahipal Singh Kharra and Mr. Dharmendra Fageria Mr. Ram Pratap Saini Ms. Sushila Kalwania For Respondent(s) : Mr. Vigyan Shah with Mr. Akshit Gupta and Mr. Harendra Neel

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MS. JUSTICE REKHA BORANA

Order

15/11/2021

In these cases, the petitioners are Ex-servicemen. They had

applied for advertisement issued by the High Court administration

on 22.07.2020 for the post of drivers. They have not been

shortlisted on account of the criteria applied by the High Court

calling ten times the number of candidates compared to the

notified vacancies. They have raised an issue of such cut off marks

being wrongly applied and also argued that in case of Ex-

servicemen, special consideration should apply. Learned counsel

for the respondents pointed out that both these issues have been

decided by this Court. The validity of cut off marks as applied in

the present selection process came up for consideration before the

present Division Bench in Khushi Ram Gurjar Vs. Rajasthan

High Court in Civil Writ Petition No.10274/2020 and

connected petitions decided on 28.10.2021 in which after referring

to earlier Division Bench judgments of this Court and several

Supreme Court judgments, the action taken by the High Court

administration in providing such cut off marks has been upheld.

(3 of 5) [CW-3810/2021]

With respect to the question of such cut off marks for Ex-

servicemen, we are informed that issue is covered by the

judgment of Division Bench of this Court in the case of Vikram

Singh Chouhan Vs. State of Rajasthan and Ors. decided on

16.05.2014. Counsel pointed out that in this case, a person

belonging to physically handicapped category for which horizontal

reservation has been provided had asked for prescribing separate

cut off marks for such categories. This contention was not

accepted in the judgment by the Division Bench making following

observations:-

"A Single Bench of this Court in Himanshu Kachhwaha & ors. V/s Rajasthan Public Service Commission & ors. (2004(5) WLC (Raj.) 243) (S.B.Civil Writ Petition Nos.830/2004 and 384/2004decided on 16.3.2004) was seised with the grievance of the petitioners therein that though required under Rule 15 of the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1999, candidates fifteen times the total approximate number of vacancies (category-wise) to be filled in the year concerned were to be admitted to the main examination, it was not so done for the physically handicapped persons. The challenge based on this cavil was negated relying on the decision of the Hon'ble Apex Court rendered in Indra Sawhney (supra). The observation of the Coordinate Bench of this Court in Bhuvnashwar Singh (supra) to that effect that law does not permit that there should be a separate category for physically handicapped persons for the purpose of reservations, was also relied upon. The decision of the Hon'ble Apex Court in Chattar Singh (supra) was distinguished. This rendition in Himanshu Kachhwaha (supra) was upheld in D.B.Civil Special Appeal No.445/2004 (decided on 16.8.2011) drawing sustenance therefor amongst others from the verdicts in Indra Sawhney (supra) and Bhuvnashwar Singh (supra).

In Bhuvnashwar Singh (supra) the plea of the appellant therein that the respondent-Commission was required to draw up a separate category list for physically handicapped candidates as in the case of reservations for SC, ST and OBC candidates with reference to Article 16(4) was dismissed again principally relying on the verdict of the Constitution

(4 of 5) [CW-3810/2021]

Bench of the Hon'ble Apex Court in Indra Sawhney (supra).

In Chattar Singh (supra) which involved recruitment to the posts in administrative and subordinate services under the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1962, apart from challenging the vires of Rule 13 thereof, a contention was raised that there was a need to prepare separate list for various categories for which the recruitment was underway. Taking note of the amendment in the Rules, their Lordships of the Hon'ble Apex Court expressed their view that separate lists were required to be published in respect of candidates in the respective categories so as to make up the number of candidates 15 times the notified or anticipated posts/vacancies so as to enable them to appear in the main examination. Not only as the contextual facts would disclose that the cardinal aspect of dissidence was relatable to the requirement of prescribing lesser cut-off marks for the OBC category candidates, noticeably, the decision of the Constitution Bench of the Hon'ble Apex Court in Indra Sawhney (supra) did not figure in course of the adjudication, more particularly qua the physically handicapped candidates. This decision, therefore, in our comprehension, does not advance the case of the petitioner in the context of the issue presently involved.

In the face of the consistent and determinative judicial pronouncements referred to hereinabove and more importantly founded on the decisive enunciation in Indra Sawhney (supra)bearing on the present debate, we are of the unhesitant opinion that no intervention in the exercise of the power of judicial review is warranted in the facts and circumstances of the case. The plea that cut-off marks for women candidates, who similarly are to avail horizontal reservation, have been declared and that omission to do so vis-a-vis the physically handicapped candidates is in apparent violation of the Rules besides being constitutionally impermissible, does not weigh with us, in view of the emphatic and unequivocal exposition in Indra Sawhney (supra) distinguishing vertical and horizontal reservations in the context of the constitutional scheme therefor as enshrined in Article 16 of the Constitution and the consequential adjustments of those availing horizontal reservations in the respective categories i.e. General/SC/ST/OBC. We find no discernible reason whatsoever to sustain the challenge as laid in the instant petition.

The writ petition lacks in merit and is dismissed."

(5 of 5) [CW-3810/2021]

Learned counsel for the petitioners were unable to draw a

distinction in context of both the contentions which had come up

for consideration before this Court earlier.

In that view of the matter, these petitions are dismissed.

(REKHA BORANA),J (AKIL KURESHI),CJ

Kamlesh Kumar/N.Gandhi/152,153,155