The Jabalpur Bench of Madhya Pradesh High Court has held that vertical reservation can be granted in favor of Scheduled Castes, Scheduled Tribes, and Other Backward Classes concerning Article 16(4) of the Constitution of India and the reservation in favor of physically handicapped concerning Article 16(1) of the Constitution of India shall be considered as a horizontal reservation.
Holding so, the High Court allowed a petition filed by a candidate belonging to scheduled caste and also a person with disability seeking selection in civil judge examination.
It also noted that the reservation to a physically disabled person under Article 16(1) would be adjusted against their respective categories for computation. The Court explained,
“If, for example, a physically handicapped person selected for appointment happens to belong to Scheduled Caste category, he will be taken to have exhausted one seat of Scheduled Caste category. If however he belongs to open competition (O.C.) category, he will be placed in that Category by making necessary adjustments. The purpose of this is to ensure that horizontal reservation provided within the vertical reservation may not result in exceeding the percentage of the prescribed quota. The proper and correct course for applying the policy of reservation is to first fill up the Open Competition quota (50%) on the basis of merit and second step would be to fill up each of the social reservation quotas i.e. S.C., S.T. and OBC and then the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis and if that quota is already satisfied, no further question of providing reservation arises. If not so satisfied, the requisite number of special reservation candidates i.e. horizontal reservation shall have to be pushed up and adjusted against their respective social reservation categories by deleting the corresponding number of candidates therefrom.”
A division bench of Chief Justice Mohammad Rafiq and Justice Vijay Kumar discussed the intent behind the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and the Rights of Persons with Disabilities Act, 2016. They noted that it is meant to give assistance to those upon whom the destiny has inflicted various kinds of disabilities and to provide them an opportunity to participate in the social milieu like any other able-bodied person. The bench also took note that despite progressive steps taken by the Courts and the initiatives taken by the Government, the implementation of the Act of 2016 is far from satisfactory. It remarked,
“The disabled are victims of discrimination inspite of the beneficial provisions of the Act. The entire struggle of this class of citizens is that they have to fight at two fronts, first is the disablement which the destiny has thrust upon them to override the difficulties in their life and second is the mindset of the society in which they live and their bias that this class would not be able to discharge duties as effectively as the other able bodied persons can do.”
The petitioner, Saroj Dehariya, is challenging the final result of Civil Judge Class-II (Entry Level) Examination, 2018 to the extent of non-selection and consequential denial of appointment to the petitioner on the post of Civil Judge Class-II (Entry Level) in the Physically Handicapped quota (Scheduled Caste category).
The advertisement stipulated that reservation of 6% shall be given to the Specially Abled candidates as per the provisions of Section 34 of the Rights of Persons with Disabilities Act, 2016 (for short the “Act of 2016”), and selection of that Category shall be made based on their inter-se merit; however, their seats shall be counted against any of the quotas to which they belonged.
It is the petitioner’s case that she is suffering from 68% permanent locomotor disablement and secured 224 marks out of 450 marks. She submitted the application form for appointment against the vacant post under the Scheduled Caste (Physically Handicapped) Category. It is contended that out of 474 candidates declared successful in the main written examination; the petitioner was the only physically handicapped candidate who was called for an interview. As a result, there were four seats reserved for physically handicapped persons under the un-reserved/open Category, one seat was reserved for physically handicapped persons in Scheduled Caste Category, and two seats were reserved for physically handicapped persons in Scheduled Tribe Category. When, however, the result was declared, the petitioner came to know that she has not been selected despite being the only eligible candidate in his Category.
Advocate Sandeep Kochar, appearing for the petitioner, argued that in the previous examination for appointment on the post of Civil Judge Class-II (Entry Level), had selected one candidate under the Physically Handicapped quota in Open/General Category even though she had secured only 261 marks as against cut off marks of 288 in that category. Therefore, despite having scored much lesser marks than the last general category candidate, she was appointed by extending her the benefit of horizontal reservation.
However, in the present case, the petitioner secured more than 45% of total marks, prescribed as the minimum qualifying marks for Scheduled Caste Category as per the advertisement. The petitioner further contended that the explanation given by the respondents for not applying the same principle to the case of the petitioner is wholly untenable.
The respondents had contended that when the earlier candidate was selected, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) was in force. Therein, there was no inter-exchange of unfilled seats of one Category of physically handicapped candidates with another category and for carrying forward the unfilled vacancy to the next year.
The petitioner responded that such interpretation placed by the respondents on the provisions of the Act of 1995 is not only contrary to the intention of the legislature but is also defeating the very purpose of the Act of 2016, which is a piece of social welfare legislation conferring rights on physically handicapped persons, shall have to be given purposive interpretation and must be implemented in its letter and spirit.
The petitioner relied on Rashmi Thakur vs. High Court of Madhya Pradesh and others where it was held that the Act of 2016 had departed from the Act of 1995 when the reservation for the physically disabled candidates is not dependent on any condition. This Court held that the reservation could be denied if any government establishment is exempted from the Act’s provisions by the Chief Commissioner or the State Commissioner. The High Court had held that.
“In absence of any decision to exempt the High Court from the provisions of the reservation, the High Court was bound to reserve post for the visually handicapped candidates.”
The petitioner also contended to hold the non-observance of the scheme as disobedience as held in Union of India (UOI) and others vs. National Federation of the Blind and others (2013). The barriers to entry for persons with disabilities in government service were discussed in an apex court judgment in Rajeev Kumar Gupta and others vs. Union of India and others (2016), noting that much below 3% are in government employment long years after the Act of 1995 was in force. It advised that rigorous standards scrutinize the barriers within the legal framework of the Act of 1995.
The petitioner also submitted that even as per the additional return filed by the respondents themselves, it is self-evident and axiomatic that till this date, two posts in physically handicapped (S.C.) Categories regarding the year’s selection in question are still lying vacant, and no suitable candidate was found even in the examination held in the subsequent years.
On the other hand, Advocate Piyush Dharmadhikar appearing for State submitted that the petitioner is only entitled to reservation vis-a-vis Section 34 of the Act of 2016. Still, she is erroneously seeking to extend the scope of his right by contending that as per Section 34 of the said Act, he is entitled to automatic relaxation at the sacrifice of the rule of merit. It contended that the petitioner does not fulfill the prescribed criteria as determined by the examining body, i.e., having not secured more or equal to cut off marks of Scheduled Caste category, i.e., 228 marks, he cannot automatically claim relaxation from the merit of that Category. While the cut-off marks for the Scheduled Caste category were 228 and the petitioner could only secure 224 marks. The State emphasized the distinction between ‘reservation’ and ‘relaxation,’ two different benefits and have different legal implications, which cannot be interlinked. It thereby stated that the petitioner has failed to appreciate the distinction.
The State noted that even according to Section 34 of the 2016 Act, there is no provision for fixing different criteria for the physically handicapped category, nor is there any prescription to the effect that they are entitled to relax eligibility criteria as prescribed by the examining body. Mr. Piyush Dharmadhikar learned counsel argued that relaxation as per law has to be expressly provided and cannot be applied merely by presumption. It is contended by the State that the only relaxation which has been given in Section 34(3) of the Act of 2016 is regarding age. Still, there is no relaxation qua eligibility criteria prescribed by the examining body.
It is further argued that if two candidates have equal merit/eligibility in the examination, then the preference will be given to physically handicapped candidates as per the settled proposition of law. It is trite that horizontal reservation will cut across the vertical reservation. For illustration, the facts of the present case can be referred to wherein the last three candidates under the Scheduled Caste category have scored 228 marks. If for the sake of assumption, though not admitted, the petitioner would have scored equal marks to those of the last Scheduled Caste candidate, he would have replaced him to claim appointment by being physically handicapped as he has a reservation on twin consideration, namely, vertical as well as horizontal. However, since he failed to fulfill the benchmark as prescribed by the examining body, the application of horizontal reservation will not come into play.
It was further submitted that horizontal reservation could not be claimed as a matter of right since it is subject to the overall merit position in the respective Category. Even in the horizontal reservation, the minimum prescribed standards must be fulfilled, and the merit cannot be given a complete go-bye. The State contended against a claim of parity with the earlier candidate because she was granted the benefit of horizontal reservation when the old Act of 1995 was in force, which provided reservation to physically handicapped candidates under Section 33 wherein there was no provision to carry forward of seats which could not be filled up from a candidate having a different kind of disablement for want of suitable person or any other sufficient reasons. Still, now the Act of 2016 has provided so in Section 34(2).
The said provisions prescribe that if a suitable person is not available or for any sufficient reason, the vacancy can be carried forward. In the opinion of the learned counsel for the respondents, non-securing the cut-off marks by the petitioner would be construed as sufficient reason for the respondents not to select him for an appointment. The State relied on Mayanka Saket vs. State of M.P. and others (2017) to argue that while dealing with the method of implementation of horizontal reservation/special reservation in the context of reservation for woman candidates categorically held that if vacancies are not available and the quota of Scheduled Caste category candidate in order of merit is full. Therefore, no further vacancy is left in the said Category, which could have been filled by applying horizontal reservation for Scheduled Caste women; no error can be found in the action of the appointing authority by not applying the horizontal reservation.
The State also relied on Manish Sharma v. Lt. Governor and others (2019), wherein it was held that there is the clear cut distinction between the grant of reservation vis-a-vis grant of relaxation since both aspects lie in a separate domain. While reservation for physically handicapped candidates is statutorily mandated under the PWD Act, grant of relaxation to such candidates would be for the employer to examine after taking into consideration the nature of duties required to be discharged on the post as also the number of candidates from the said Category who may be found eligible.
The Court noted that the object behind enacting the Act of 1995 and after that the Act of 2016 would be evident from the introductory part of the statute and the statement of objects and reasons and their preamble. It was noted that,
“Both the enactments were intended to give a succour to those upon whom the destiny has inflicted various kinds of disabilities and to provide them an opportunity to participate in the social milieu like any other able bodied person. The Act of 1995 was enacted with a view to implementing proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific region, in which India was one of the signatories.”
The Court chartered other international obligations arising out of the Asian and Pacific Decade of Disabled Persons and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) by the Republic of India in 2007 and the principles laid down therein.
It noted that under the laid obligations, the Ministry of Social Justice and Empowerment constituted an expert committee in 2010, which prepared a draft bill relating to persons with disabilities, which was passed in 2016, replacing the Act of 1995.
The Court also examined the ratio of the Constitution Bench judgment of the Supreme Court in Indra Sawhney and other vs. Union of India and others (1992) where it was held that while the vertical reservation can be granted in favor of Scheduled Castes, Scheduled Tribes, and Other Backward Classes concerning Article 16(4) of the Constitution of India, the reservation in favor of physically handicapped concerning Article 16(1) of the Constitution of India shall be considered as a horizontal reservation.
How reservation, both vertical and horizontal, should be applied has been lucidly explained by the Supreme Court in last judgment in Anil Kumar Gupta v. State of Uttar Pradesh (1995). Rajesh Kumar Daria v. Rajasthan Public Service Commission (2007), where special reservation is provided to the woman 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 Castes-Women.’ It was held,
“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.”
The Court noted that the respondents in the present case were required to first apply the vertical reservation. Like in this case, they should have, as the first step, arranged 50% candidates in open/general Category on merit and after that should have proceeded to prepare merit of social reservation quota, i.e., SC/ST/OBC. Here in the present case, we are concerned with the Scheduled Caste category. According to the dicta of Supreme Court in the case mentioned above, the respondents were obliged to, as the second step, prepare merit of 30 candidates of Scheduled Caste category available after preparation of merit of open category candidates. The third step for the respondents would be to find out how many candidates belonging to the physically handicapped Category were already selected within the list of 30 candidates of Scheduled Caste. If it was found, like in this case, that no candidate belonged to the physically handicapped category, the respondents were then obliged in law to delete the last candidate in the merit of Scheduled Caste category to accommodate the petitioner regardless of his merit, subject of course to minimum benchmark prescribed.
“For the purpose of applying and giving horizontal reservation to the physically handicapped person, cut off marks of the Category to which they otherwise belong, would hardly be material. Conversely, however it is also true that if sufficient number of physically handicapped persons were already selected in the list of 30 candidates prepared by the examining body, there was no need for them to further go downwards and find out more candidates to push them up for the purpose of selection. However, if no physically handicapped candidate is selected within the merit/cut off marks fixed by the examining body, they shall have to go downwards to find out physically handicapped candidates and push them up for appointment subject to the rider that no such candidate can claim appointment on the mere basis of his being disabled candidate if he has otherwise failed to secure the minimum pass marks fixed for the purpose by the examining body.”
While directing the non-appointment of the petitioner on the post of Civil Judge Class-II as illegal, the Court concluded that the petitioner secured a total of 189 marks out of 400 marks which is more the benchmark prescribed by the examining body (i.e., 45%), making her entitled to be called for interview. Moreover, in the final score after the interview, the petitioner has acquired 224 marks out of 450 marks, which means that he has secured 35 marks out of 50 in the interview. Therefore, it was held that the petitioner has been the victim of the wrong application of the reservation law and should have been immediately selected for appointment.
The Court directed the State to consider the petitioner’s case for appointment on Civil Judge Class-II (Entry Level) per the law. It granted only notional benefits to the petitioner for the intervening period, with however bottom seniority in his batch, but excluded any entitlement to any actual benefit.
Title: Saroj Dehariya v. The State of Madhya Pradesh
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