Amit Singh S/O Vijay Singh vs Rajasthan High Court, Jodhpur
2023 Latest Caselaw 5602 Raj/2

[2023:RJ-JP:24947-DB]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                 D.B. Civil Writ Petition No.9645/2023

Rohitash Kumar Jat Son Of Shri Sagar Mal Jat, Aged About 23
Years, Resident Of Dhani Patawali, Village Trilokpura, Post
Nayan, Tehsil Shahpura, District Jaipur (Rajasthan)
                                                                       ----Petitioner
                                       Versus
1.       Rajasthan High Court, Jodhpur, Through Its Registrar
         General
2.       Rajasthan High Court, Jodhpur, Through Its Registrar
         (Examination)
3.       The Registrar (Administration), Rajasthan High Court,
         Jodhpur
                                                                    ----Respondents

Connected With D.B. Civil Writ Petition No.7405/2023

1. Amit Singh S/o Vijay Singh, Aged About 36 Years, R/o Village Shahjadpur, Post Jasai, Tehsil Mundawar, District Alwar, Rajasthan.

2. Prathvi Singh S/o Babulal, Aged About 37 Years, R/o Dholi Doob, Purani Chungi, Balaji Nagar, Alwar, Rajasthan.

3. Khurshid Khan S/o Fajru Khan, Aged About 36 Years, R/o Mundia Khera, Post Deewali, Tehsil Laxmangarh, District Alwar, 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.8849/2023 Nand Kishore Jajra Son Of Sh. Mana Ram Jajra, Aged About 22 Years, Resident Of Dhara Ki Dhani, Khedarpura, Nagaur, Rajasthan- 341512.

----Petitioner

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Versus

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

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

----Respondents

For Petitioner(s) : Ms. Sushila Kalwania, Advocate Mr. Gopesh Kumar, Advocate for Mr. Aamir Khan, Advocate Ms. Priti Bhandari, Advocate for Mr. Vaibhav Bhargava, Advocate For Respondent(s) : Mr. Rajendra Prasad, Senior Advocate assisted by Mr. Ashish Sharma, Advocate Mr. Shailesh Prakash Sharma, Advocate

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Order

Pronounced on 6/10/2023

(Per: Hon'ble Manindra Mohan Shrivastava, J.)

By this common order, these petitions are being disposed off

as the issue involved in these petitions is identical. As the question

of law arising for consideration is based on similar facts, therefore,

for convenience of reference, the facts stated in D.B. Civil Writ

Petition No.9645/2023 are referred to.

In D.B. Civil Writ Petition No.9645/2023 filed under Article

226 of the Constitution of India, the petitioner has prayed for

direction to declare the petitioner eligible and selected under

Persons with Benchmark Disabilities (Deaf and Hard of Hearing)

category for recruitment to the post of Junior Judicial Assistant for

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the establishment of Rajasthan High Court and Clerk Gr.II for

Rajasthan State Judicial Academy and District Courts.

The petitioner seeks to adjudge his perceived omission on

the part of the respondents to announce and declare separately

the cut off marks for the physically handicapped candidates in the

matter of recruitment to various posts for which recruitment was

advertised vide advertisement dated 05.08.2022 published by the

Rajasthan High Court.

Quint-essential facts relevant and necessary for adjudication

of controversy involved in this present petition are that the

respondents initiated process for recruitment to the post of Junior

Judicial Assistant for the establishment of Rajasthan High Court,

Clerk Gr. II of Rajasthan State Judicial Academy, Clerks in District

Courts as also Clerks in Rajasthan State Legal Services Authority

vide advertisement dated 05.08.2022. The recruitment provided

reservation both vertically and horizontally for various categories.

It also provided for horizontal reservation for persons with

benchmark disabilities.

The petitioner also submitted his online application for the

joint recruitment to the advertised posts under the category of

OBC (NCL) and special category of Persons with Benchmark

Disabilities (Deaf and Hard of Hearing). The petitioner appeared in

the written examination held on 19.03.2023. Results of the

aforesaid examination was declared on 01.05.2023, which

disclosed that the petitioner had obtained 129.1499 marks. The

petitioner was not in the list of candidates qualified for type-

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writing test on computer. No separate cut off marks for the

candidates under the benchmark disabilities was published.

Aggrieved by the aforesaid omission on the part of the

respondents in not declaring the cut off marks for the category of

candidates with benchmark disabilities, the petitioner filed this

petition.

The submission of learned counsel for the petitioner is that

the petitioner obtained 129.1499 marks, which is more than the

qualifying marks of 120 prescribed by the respondents. As the

respondents did not declare separate cut off marks for the OBC

(NCL) category candidates with Benchmark Disabilities (Deaf and

Hard of Hearing), the petitioner was illegally and wrongfully

excluded from the process of selection. After completion of the

process of selection at various stages which included type-writing

test after the written examination conducted for short-listed

candidates in various reserved category, result was declared on

11.06.2023 and none of the candidates with Benchmark

Disabilities (Deaf and Hard of Hearing) category were selected.

It has been contended that had the respondents separately

declared cut off marks and prepared separate category of Persons

with Benchmark Disabilities (Deaf and Hard of Hearing) the

petitioner and other candidates, who had secured more than

minimum qualifying marks at the written examination would have

become entitled for being considered on merit basis as the

advertisement under Note (v) of Section (B) of Clause 15 clearly

provided that Persons with Benchmark Disabilities shall be

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provided relaxation from the type-writing test on computer and

they shall be awarded marks in computer test on the basis of

average marks obtained by them in the written test with the

option that if any such candidate voluntarily opts in his online

application to appear in type-writing test on computer, he shall be

allowed to appear in such tests. As the petitioner had opted "No"

in his online application to appear in the type-writing test on

computer, he was entitled to average marks on the basis of marks

awarded in written examination. Thus, on account of non-

declaration of cut off marks at the stage of declaring results of

written examination, preparation of separate list for OBC (NCL)

candidates with Benchmark Disabilities (Deaf and Hard of Hearing)

the petitioner has been ousted from the process of selection which

is not only against the spirit of The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act,

2016 but also governing recruitment Rules and the provisions of

the advertisement and declared process of recruitment, as

rationally construed. The respondents, it is contended, have

wrongly applied the Rules of horizontal reservation.

In support of the aforesaid submissions, learned counsel for

the petitioner has placed reliance upon the decision of the

Supreme Court in the case of Mahesh Gupta & Ors. Versus

Yashwant Kumar Ahirwar & Ors., 2007 (8) SCC 621 and a

Division Bench judgment of the Madhya Pradesh High Court in the

case of Saroj Dehariya Versus The State of Madhya Pradesh

& Ors. W.P. 22358-2019 decided 23.07.2021.

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On the other hand, learned counsel for respondents would

submit that preparation of merit list at the stage of written

examination has been prepared strictly in accordance with the

process prescribed under the governing recruitment Rules and the

advertisement. It is argued that the cut off marks of OBC (NCL)

was 230.4431 whereas the petitioner had obtained 129.1499

marks in the written examination, which was much less than the

minimum required marks to be qualified for consideration for the

next stage of examination process. The reservation for the

persons with benchmark disabilities is a horizontal reservation and

not a vertical one as is prescribed for SC/ST and OBC candidates.

Relying upon the observations made by the Supreme Court in the

case of Indra Sawhney & Ors. Versus Union of India & Ors.,

1992 (3) SCC 217, it has been argued that the reservations are

to be worked out as prescribed therein which has been strictly

followed. He would further submit that the process of recruitment

followed by the respondents is strictly in accord with law laid down

by the Supreme Court in the case of Rajesh Kumar Daria

Versus Rajasthan Public Service Commission & Ors., 2007

(8) SCC 785 and Saurav Yadav & Ors. Versus State of Uttar

Pradesh & Ors., 2021 (4) SCC 542 which declare the law and

the manner in which horizontal reservations have to be worked

out. Learned counsel for the respondents would submit that the

Division Bench of this Court at Principal Seat, Jodhpur in the case

of Himanshu Kachhwaha Versus Rajasthan Public Service

commission, D.B. Civil Special Appeal No.445/2004 decided

on 16.08.2011 and Bhuvaneshwar Singh Chauhan Versus

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Rajasthan Public Service Commission & Anr., D.B. Civil

Special Appeal No.881/2002, decided on 16.08.2011 has

clearly held that as reservation for persons belonging to physically

handicapped category has been predicated to be on horizontal

basis, it does not mandate preparation of a separate category for

whom cut off marks are required to be declared. He would further

submit that issue which has been raised in the present petition

was earlier examined by the Division Bench of this Court at

Jodhpur in the case of Vikram Singh Chouhan Versus State of

Rajasthan & Ors., D.B. Civil Writ Petition No.3115/2014

decided on 16.05.2014, wherein it has been held that the prayer

for declaring separate cut off marks for persons with benchmark

disabilities cannot be accepted.

Subsequently, another Division Bench's judgment of this

Court in the case of Ratanlal Versus Rajasthan High Court,

Jodhpur & Anr., D.B. Civil Writ Petition No.1436/2022, has

also decided on similar lines rejecting claim for declaring separate

cut off marks for persons with disabled category.

After hearing learned counsel for the parties, we are of the

view that the issue raised in this petition is squarely covered in

series of decisions which have been referred to by learned counsel

for the respondents. Relying upon two earlier decisions in the case

of Himanshu Kachhwaha Versus Rajasthan Public Service

Commission (supra) as also Bhuvaneshwar Singh Chauhan

Versus Rajasthan Public Service Commission (supra), a

Division Bench of this Court at Principal Seat, Jodhpur in the case

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of Vikram Singh Chouhan Versus State of Rajasthan (supra)

examined identical issue where a prayer was made to declare

illegal omission on the part of the recruiting agency to announce

the cut off marks for the physically handicapped candidates.

Taking note of the scheme of the Rules provided for horizontal

reservation for persons with disabilities under Rajasthan

Employment of Disabled Persons Rules, 2000 and further, taking

into consideration that number of candidates to be admitted in the

examination will be limited to 15 times of the total number of

vacancies category-wise, placing reliance upon the decision of the

Constitution Bench judgment of the Supreme Court in the case of

Indra Sawhney Versus Union of India (supra), it was held

that reservations in favour of Schedules Castes, Scheduled Tribes

and Other Backward Classes are under Article 16(4) of the

Constitution of India and classified as vertical reservation,

whereas reservations in favour of physically handicapped

candidates are under Article 16(1) of the Constitution of India and

referable as horizontal reservations. Authoritative pronouncement

of the Supreme Court in this regard that horizontal reservations

cut across the vertical reservations and are thus construed as

inter-locking reservations was also noted. It was so observed in

the case of Vikram Singh Chouhan Versus State of Rajasthan

(supra), which reads as below:-

"........It was clarified that 3% reservation of the vacancies in favour of physically handicapped persons would be one relatable to Article 16(1) and the persons selected against this quota would be placed in the appropriate category i.e. if he belongs to SC category he would be placed in that quota by making necessary

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adjustments and similarly, if he belongs to open competition (OC) category, he would be placed in that category by making necessary adjustments. Their Lordships enounced that after providing these horizontal reservations, the percentage of reservations in favour of OBC category should remain the same.

The above authoritative judicial edict thus clearly distinguishes these two types of reservations and the consequence attendant thereon. Patently, physically handicapped persons if selected against their quota of reserved vacancies, would eventually be placed in the appropriate 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 remains unaltered."

The conclusion arrived thereafter on such consideration was

that omission to declare separate cut off marks for persons with

benchmark disabilities is not illegal in view of emphatic and

unequivocal exposition of law in the case of Indra Sawhney

Versus Union of India (supra) distinguishing vertical and

horizontal reservations in the context of the constitutional scheme

therefor as enshrined in Article 16 of the Constitution of India and

consequential adjustments of those availing horizontal

reservations in the respective categories i.e. General/SC/ST/OBC.

Later on, another Division Bench of this Court in the case of

Ratanlal Versus Rajasthan High Court, Jodhpur (supra),

again repelled the contention that the respondents therein while

conducting recruitment for appointment to the post in the Civil

Judge Cadre were required to declare separate cut off marks for

the category of persons with benchmark disability, principally

relying upon the decisions of the Supreme Court in the case of

Indra Sawhney Versus Union of India (supra) and Vikram

Singh Chouhan Versus State of Rajasthan (supra).

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In view of above considerations and factual premise of the

present case, the other decisions in the cases of Union of India

& Anr. Versus National Federation of the Blind & Ors., 2013

(10) SCC 772, Rajeev Kumar Gupta & Ors. Versus Union of

India & Ors., 2016 (13) SCC 153, and Ashok Kumar Giri

Versus Union of India & Ors. 2016 (6) SCC 511, Justice

Sunanda Bhandare Foundation Versus Union of India &

Anr., 2017 (14) SCC 1, Anil Kumar Gupta & Ors. Versus

State of U.P. & Ors., 1995 (5) SCC 173 and Indian Banks'

Association, Bombay & Ors. Versus Devkala Consultancy

Service & Ors. 2004 (11) SCC 1 also do not support the

contentions as raised by the counsel for the petitioner in the

present case.

It would thus be seen that this Court has taken consistent

view on this aspect.

Reliance placed on the decisions of the Supreme Court in the

case of Mahesh Gupta Versus Yashwant Kumar Ahirwar

(supra) is misplaced both on facts and law. In that case, while

dealing with a case relating to special recruitment drive for filling

up vacant reserved posts of Scheduled Castes and Scheduled

Tribes, where respondents had advertised eight posts for reserved

category in Scheduled Caste and eight posts for the handicapped

persons, respondents showed the reserved categories separately

in the body of advertisement. Contradictory stand was taken by

the respondents therein. On facts, it was found that State had

adopted a policy for filling up the reserved posts for handicapped

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persons as special drive and therefore, such a reservation fall

within clause (1) of Article 16 of the Constitution of India had

nothing to do with the object and purpose sought to be achieved

by the reasons of "clause (4)" thereof. In that context, it was held

that a disabled is a disabled and the question of making any

further reservation on the basis of caste, creed or region ordinarily

may not arise as they constitute a special class.

Though the contention raised by learned counsel for the

petitioner finds support from the decision of the Division Bench

judgment of Madhya Pradesh High Court in the case of Saroj

Dehariya Versus The State of Madhya Pradesh (supra), in

the light of consistent view taken by the Division Benches of this

Court in several decisions, which have been referred to and cited

hereinabove, we are not inclined to take a different view on the

basis of decision in the case of Saroj Dehariya Versus The

State of Madhya Pradesh.

In the result, these petitions fail and are hereby dismissed.

A copy of this order be placed in each connected petition.

(PRAVEER BHATNAGAR),J (MANINDRA MOHAN SHRIVASTAVA),J

Karan/

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