1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R (1) S. B. CIVIL WRIT PETITION NO.1257/2005 MS. SHILPA BADALA V. THE STATE & ANOTHER. (2) S. B. CIVIL WRIT PETITION NO.1478/2005 MUKESH KUMAR SHARMA V. THE STATE & ANOTHER. (3) S. B. CIVIL WRIT PETITION NO. 1492/2005 RAM RATI V. THE STATE & ANOTHER. (4) S. B. CIVIL WRIT PETITION NO.1605 /2005 BANWARI LAL POTAR V. THE STATE & ANOTHER. (5) S. B. CIVIL WRIT PETITION NO.1609/2005 JUGAL KISHORE V. THE STATE & ANOTHER. (6) S. B. CIVIL WRIT PETITION NO.1610/2005 MANGILAL & OTHERS V. THE STATE & ANOTHER. (7) S. B. CIVIL WRIT PETITION NO. 1611/2005 GHANSHYAM SEN V. THE STATE & ANOTHER. (8) S. B. CIVIL WRIT PETITION NO. 1652/2005 VIJENDRA VYAS & OTHERS V. THE STATE & ANOTHER. (9) S. B. CIVIL WRIT PETITION NO.1727/2005 SMT. SUNITA BEHAL & ANR. V. THE STATE & ANOTHER. (10) S. B. CIVIL WRIT PETITION NO. 1772/2005 SUMITRA V. THE STATE & ANOTHER. (11) S. B. CIVIL WRIT PETITION NO. 1776/2005 2 B.K.PUROHIT & ANR. V. THE STATE & ANOTHER. (12) S. B. CIVIL WRIT PETITION NO.1782/2005 MILAKH RAJ CHUG V. THE STATE & OTHERS. (13) S. B. CIVIL WRIT PETITION NO.1788/2005 MAYA KOCHAR V. THE STATE & ANOTHER. (14) S. B. CIVIL WRIT PETITION NO.1864 /2005 V. D. SHARMA V. THE STATE & ANOTHER. (15) S. B. CIVIL WRIT PETITION NO.1938/2005 VISHNU PRAKASH V. THE STATE & ANOTHER. (16) S. B. CIVIL WRIT PETITION NO. 2069/2005 MALA BISHNOI V. THE STATE & ANOTHER. (17) S. B. CIVIL WRIT PETITION NO. 2093/2005 SOHAN LAL PATEL V. THE STATE & ANOTHER. (18) S. B. CIVIL WRIT PETITION NO. 2212/2005 RAM SUKH V. THE STATE & ANOTHER. (19) S. B. CIVIL WRIT PETITION NO. 2228/2005 B.K. YADAV V. THE STATE & ANOTHER. (20) S. B. CIVIL WRIT PETITION NO.2229/2005 LAXMI NARAYAN DAN V. THE STATE & ANOTHER. (21) S. B. CIVIL WRIT PETITION NO. 2270/2005 GURMEET SINGH & ANR. V. THE STATE & OTHERS. (22) S. B. CIVIL WRIT PETITION NO.2280/2005 3 SMT. BEENA RATHORE V. THE STATE & ANOTHER. (23) S. B. CIVIL WRIT PETITION NO.2339/2005 AMAR SINGH V. THE STATE & ANOTHER. (24) S. B. CIVIL WRIT PETITION NO.3127/2005 B.L. GODARA V. THE STATE & ANOTHER. (25) S. B. CIVIL WRIT PETITION NO.3128/2005 SUMAN SHARMA V. THE STATE & ANOTHER. DATE OF ORDER :::: 04/03/2008 PRESENT HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI Mr.R.S.Saluja, Mr.M.S.Godara, Mr. S.P.Sharma, Mr. Manoj Bhandari, Mr. J.R.Beniwal, Mr. Sunil Beniwal, Mr. N.R.Goswami, Mr. M.S. Rathore, Mr. G.R.Punia, Mr. G.R.Goyal, Mr. S.S.Khatri, Mr. G.J.Gupta, Mr. I.R.Choudhary, Mr. P.S.Bhati, Mr. Mahipal Rajpurohit, Mr. Shyam S. Khatri, R.S.Chouhan and Mr. Sudheer Sharma, for Petitioners. Mr.N.M.Lodha, AAG, for State – Respondents. Mr. J.P.Joshi, for Respondent. Mr. Sunil Joshi, for Respondent. Ms. Pratishta Dave, Dy. G.A. Mr. S.Toshniwal, Assistant G.A. 4 BY THE COURT: All these writ petitions involve common question of law, thus, are heard and decided by the common Judgment. By all these writ petitions, a direction against the respondents is sought for providing 3% reservation quota for physically disabled persons as, according to petitioners, reservation to the extent of 3% is not given while filling up the post of Teacher Grade III. Learned counsel for the petitioners submit that pursuant to the advertisement issued by the respondent – R.P.S.C. calling for the applications for appointment on the post of Teacher Grade III, all the petitioners submitted their applications. Referring to advertisement dated 02.06.2004, it is stated that a separate bifurcation of the posts meant for disabled category was made, but then after issuance of the advertisement, respondents increased posts from 25712 to 33936, but while increasing the posts, reservation to the extent of 3%, in favour of the disabled persons, is not 5 provided. Learned counsel for the respondents, on the other hand, submit that they had advertised 25712 posts and reservation in favour of the disabled category persons was also determined, which was then made to satisfy the 3% quota meant for disabled category, inasmuch as, originally, in the advertisement, 753 posts were reserved for the disabled category, but, then same was increased to 831 posts and appointments were given to that extent. So far as increase of 6257 posts at later stage is concerned, it is stated that those were backlog vacancies of Scheduled Caste (SC) and Scheduled Tribe (ST) candidates, hence, in all those backlog vacancies, reservation of disabled candidates could not be provided and, otherwise, stating the facts, it is submitted that as against 831 posts meant for disabled category, in fact, 952 appointments have already been given. Thus, the appointment of the disabled category candidate has been made in excess to the quota and assuming that even total reservation is to be provided on 33963 posts, then also, so far as back log 6 reserved posts posts are concerned, i.e., 6257, no General Caste candidate, belonging to disabled category, can seek benefit of appointment, because, it is already held that reservation to disabled category is a horizontal reservation. In other words, if a candidate, belonging to General Caste is falling in disabled category, then he will get 3% reservation from and amongst the seats meant for General category and likewise and if a candidate belongs to other category like SC and ST, then the disable person of SC and ST category will get the reservation on the posts meant for that category like SC and ST. Therefore, taking note of above situation, it is submitted that so far as the present petitioners are concerned, none of them are coming close to the cut off marks provided for disabled category candidates within their category, therefore, entire exercise as required to be made has otherwise become academic in nature. Referring to the situation in regard to the reserved caste candidate, like SC & ST, it has been stated that cut off marks in their category to the disabled person is 114 and 104 respectively and, out of all these writ petitions, only writ petition, bearing No.1723/2005 involves one Omprakash to SC category, but he has already been 7 given appointment, being a blind. Then, comes a candidate in writ petition No.1788/2005, belonging to SC category, but then, the said candidate has obtained only 90 marks as against cut off marks of 114 and the same is position in regard to writ petition No.2270/2005, where out of two candidates, one Chenaram has secured only 78 marks as against cut off marks of 114. According to the learned counsel for the State, even all those candidates are considered against backlog vacancies of 6257, then also, looking to the very low percentage of marks and many other meritorious persons in between, petitioners are not entitled for any relief thus the issue remains academic only. Learned counsel for the petitioner has made a reference to the judgment of the Apex Court in the case of Mahesh Gupta & Others v. Yashwant Kumar Ahirwar & Others, (2007) 2 SCC ( L & S ) 965, wherein it is held that category of physically handicapped person to be taken as separate category, therefore, their posts should be filled, irrespective of the caste. In the aforesaid judgment, the issue was pertaining to special consideration for disabled 8 persons as the State Government has drawn a Special recruitment drive for filling up reserved posts of SC and ST candidates and therein, a person belonging to General category, but suffering from disability was selected. The issue therein, therefore, was decided by the Hon'ble Apex Court in facts of that case and otherwise after considering the Circular dated 29.03.1993. Thus, the vacant posts were ordered to be filled up from and amongst two categories one from SC and another from ST, and for other physically handicapped candidates, a direction was given that handicapped persons were not to be further classified as belonging to SC and ST or General category candidate. The three Judges of the Supreme Court in Rajesh Kumar Daria v. RPSC & Others, (2007) 8 SCC 785, held that there is different between vertical and horizontal reservation and held that reservation in favour of the disabled candidates is horizontal reservation and as per the Judgment of the Supreme Court in the case of Rajesh Kumar Daria (Supra), the position of candidates getting horizontal reservation is to be determined in their own category and difference between horizontal and vertical reservation has been narrated. 9 In the case of Rajesh Kumar Daria, the Hon'ble Apex Court had even made a reference of Constitution Bench in the case of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 and also in the case of Anil Kumar Gupta v. State of U.P., reported in (1995) 5 SCC 173. In paras 6 to 9 of Rajesh Kumar Daria's case, the Hon'ble Apex Court has elaborately discussed the matter and for ready reference, those paras are quoted hereunder : “6. Before examining whether the reservation provision relating to women, had been correctly applied, it will be advantageous to refer to the nature of horizontal reservation and the manner of its application. In Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, the principle of horizontal reservation reservation was explained thus: (SCC pp.735-36, para 812) “All reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal 10 reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes [under Article 16 (4) ] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations – what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour 11 of Backward Class of citizens remains – and should remain – the same.” “7. A provision for women made under Article 15 (3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16 (4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertial reservations, was explained by this Court in Anil Kumar Gupta v. State of U.P. 2 (1995) 5 SCC 173 thus (SCC p.185, para 18) “The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas i.e. SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied – in case it is an overall horizontal reservation – no further question arises. But if it is not so satisfied, 12 the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen per cent in favour of special categories, overall, may be satisfied or may not be satisfied.)” “8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be : 13 “For SC : 30 posts, of which 9 posts are for women.” We find that many a time this is wrongly described thus: “For SC: 21 posts for men and 9 posts for women, in all 30 posts.” Obviously, there is, and there can be, no reservation category of “male” or “men”. 9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16 (4) are “vertical reservations”. Special reservations in favour of physically handicapped, women, etc. under Articles 16 (1) or 15 (3) are “horizontal reservations”. Where a vertical reservation is made in favour of a Backward Class under Article 16 (4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non- reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. 14 Therefore, if the number of SC candidates, who by their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K.Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y.L.Yamul.) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided 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 15 number of candidates among them who belong to the special reservation group of “Scheduled Caste women”. 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. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example : If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 16 candidates contains the four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that “SC women” have been selected in excess of the prescribed internal quota of four.)” In view of the judgment in the case of Rajesh Kumar Daria, it becomes otherwise clear that the reservation in favour of disabled category is the horizontal reservation, 17 thus it is to be provided as indicated in the aforesaid judgment, more so when the said issue was otherwise being decided by the Constitution Bench of the Hon'ble Apex Court in the case of Indra Sawhney in paras 735 and 736. In view of the above, for backlog reserved post, candidates belonging to general caste with disability cannot claim appointment. Thus, in the present matter, other than the vacancies belonging to backlog reserved post, reservations in favour of disabled persons have already been provided beyond 3% as total posts determined for reservation for disabled persons was 831, but, then, 952 candidates have already been given appointment from and amongst disabled persons. Hence, the grievance of the petitioners is otherwise also not sustainable, apart from the fact that they are not even close to the merit list. In view of the discussion made above, since the respondents had already filled up 952 vacancies from and amongst disabled category candidate which includes disabled category candidate belonging to General and Other Backward Classes (OBC) candidates to the extent of their quota. So far as SC and ST candidates are concerned, out of 18 many writ petitions, only two writ petitions, involve such candidates. In the aforesaid two writ petitions, since percentage of marks of the petitioners are quite low and there are many more meritorious candidates in between, who are above the petitioners thus, there is no chance of appointment for them. In view of the above, I do not find merit in the writ petitions, thus all the writ petitions are dismissed accordingly with no order as to costs. ( M. N. BHANDARI), J. scd