SCA/13513/2007 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13513 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== PATEL SUNILKUMAR MANUBHAI Versus STATE OF GUJARAT & OTHERS ====================================== Appearance : MR KB PUJARA for the Petitioner Mr S.P.Hasurkar, AGP for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 1, 3, RULE SERVED for Respondent(s) : 2, MR MANISH J PATEL for Respondent(s) : 3, MR VC VAGHELA for Respondent(s) : 4, ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD Date : 15/02/2008 SCA/13513/2007 2/9 JUDGMENT ORAL JUDGMENT The present petition is filed in the background that there were certain posts which were required to be filled in from the candidates belonging to the category of Physically Handicapped. The respondents have joined the issue and have stated that as provided by the Statute they have enrolled the candidates belonging to Physically Handicapped Category. They have filled in 12 posts from Physically Handicapped Category candidates whereas total number of posts were 312. That would make more than quota also because the quota is only 3% i.e. Making it to nine seats. The learned counsel for the petitioner has joined the issue and stated that these candidates have been enrolled as they having been enrolled under the category of Physically Handicapped but as they have on their own merit secured place in the selection. Once they get into the general quota on their own, they cannot be considered under the Physically Handicapped Category. Thus, recruitment of these twelve posts would not defeat the case of those candidates who are below in merit and are available to be appointed against nine reserved category posts to the exclusion of those who have been appointed on merits totalling to 12. He placed reliance on a Supreme Court decision in the matter of Mahesh Gupta & Ors. v. Yashwant Kumar Ahirwar & Ors., SCA/13513/2007 3/9 JUDGMENT 2007 6 Supreme 276. Emphasis of the learned counsel for the petitioner is that in this judgment the Honourable Supreme Court has taken note of the special status of the handicapped persons and have observed that handicapped persons form a class by themselves irrespective of the caste and creed and their quota cannot be treated to be bound by the limitation of 50% as has been observed by the Honourable Supreme Court in the case of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217. The learned counsel has further relied on the observations mentioned in this judgment that the reservation in favour of handicapped is a class by itself and that being the position that should fall within the category of vertical reservations reserved for the handicapped because the Act providing for reservation has specifically mentioned that such candidates are required to be appointed in terms of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as “Act”. Per contra, the learned counsel for the respondent submitted that the Hon'ble Supreme Court in Indra Sawhney v. Union of India (supra) has categorised the reservations in two different forms, one SCA/13513/2007 4/9 JUDGMENT vertical and another horizontal and held as under:- “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 vs. Union of India [1992 Supp.(3) SCC 217], the principle of horizontal 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 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 the quota will be placed in that quota by making necessary adjustments; SCA/13513/2007 5/9 JUDGMENT 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 of backward class of citizens remains - and should remain - the same." (emphasis applied) Thus, according to the learned counsel, the reservation for Physically Handicapped cannot exceed total number and would not fall within the definition of vertical reservations because in Rajesh Kumar Daria v. Rajasthan Public Service Commission and Others, (2007) 8 SCC 785 the Hon'ble Supreme Court has held as under:- “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 SCA/13513/2007 6/9 JUDGMENT own merit, their numbers will not be counted against the quota reserved for the 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 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 - Indira Sawhney (Supra), R. K. Sabharwal vs. State of Punjab (1995 (2) SCC 745), Union of India vs. Virpal Singh Chauvan (1995 (6) SCC 684 and Ritesh R. Sah vs. Dr. Y. L. Yamul (1996 (3) SCC 253)]. 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 number of candidates among them who belong to the special reservation group of 'Scheduled Castes-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 SCA/13513/2007 7/9 JUDGMENT 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. ......” I have given my thoughtful consideration to the respective arguments raised. As regards the reservation for Physically Handicapped is concerned, that is provided to the extent of 3% in this Act. Such 3% has been quantified in the advertisement as given by the respondents for the recruitment. That having been done, what should be the number? The total number of recruitment is little more than 300. It would therefore come out to be 9. The respondents have said that 12 handicapped persons have been recruited. Thus, according to the respondents the quota has been fullfilled. According to this Court, if the ratio of Rajesh Kumar Daria (supra) is applied to the present case, then, treating the physically handicapped reservation is to be horizontal, the argument of the learned counsel for the respondents is not sustainable. But, the learned counsel for the petitioner has placed reliance on the decision of the Supreme SCA/13513/2007 8/9 JUDGMENT Court in the case of Mahesh Gupta (supra). This Court is of the opinion that in this decision the Court was dealing with the formula of the reserved category of the handicapped persons. The advertisement was wrongly issued. In that case the physically handicapped persons have been recruited and thus their appointments have been saved. This decision has a reference saying that the reservation for physically handicapped does not fall within the category of the reservation which can be horizontal in character but, I am afraid, in view of the law laid down by the Honourable Supreme Court in Rajesh Kumar Daria, (supra) the reservation for physically handicapped persons is to be treated to be horizontal as has been specifically mentioned in that judgment. Therefore, treating the reservation for physically handicapped to be horizontal, if 3% reservation as required to be fulfilled, has been fulfilled by recruiting 12 candidates instead of 9 candidates and thus the mandate in the Constitution and the Act providing for reservation of the handicapped has been fulfilled. The learned counsel for the petitioner further asserted that the reservation was category-wise. So, 3% in each category should have been provided for. This argument appears to be fallacious because, if category-wise 3% is provided, then, the kind of reservation, which is required to be provided for handicapped may not come out as true as it SCA/13513/2007 9/9 JUDGMENT is required to be. Because, the physically handicapped make a special class by themselves. Further classification is likely to result into miscarriage of justice. In that view of the matter, the petition is rendered meritless. Hence, it is dismissed. (Bhagwati Prasad, J.) *mohd