Sanjeeva Reddy K vs State Of Telangana
2021 Latest Caselaw 4090 Tel

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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.

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

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

(2019) 20 SCC 17

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

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

LL 2021 SC 672

2017(4) SCC 357

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

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