IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7555 of 2003 RAM BILAS MANDAL s/o Late Baleshwar Mandal @ Ramjee Mandal resident of Mohalla Sahebganj, Nashrat Khani, P.S. Tarapur (Kotwali), District Bhagalpur. Versus 1. TILKA MANJHI BHAGALPUR UNIVERSITY, Bhagalpur through its Registrar. 2. The Vice Chancellor, Tilkamanjhi Bhagalpur University, Bhagalpur. 3. The Registrar, Tilkamanjhi Bhagalpur University, Bhagalpur. 4. The Deputy Registrar, Tilkamanjhi Bhagalpur University, Bhagalpur. 5. The State of Bihar, through the Commissioner Cum Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna. 6. The Commissioner Cum Secretary, Department of Higher Education, Government of Bihar, New Secretariat, Patna. ----------- 4 27.8.2010 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “(i)Issuance of an appropriate order, direction or declaration that the action of the Respondent University authorities in not following the Reservation Policy in the matter of appointment pursuant to the Advertisement dated 18.10.2001 is highly illegal, arbitrary, malafide and unsustainable in the eye of law tantamounting to violation of Article 14 and 16 of the Constitution of India. (ii)For issuance of an appropriate order, direction or a writ in the nature of mandamus commanding the Respondent authorities to extend/grant 3% reservation to the physically handicapped candidates, as per the circular issued by the Personal and Administrative Reforms Department, Govt. of Bihar, Patna, who had applied in pursuance of the Advertisement dated 18.10.2001 and consequently upon grant/extension of reservation to the physically handicapped candidates respondents may further be directed to issue appointment letter to the petitioner appointing him on any of the Class-IV post in the University. (iii)For issuance of an appropriate order, direction or writ in the nature of mandamus commanding the respondent authorities of the respondent University to consider the case of the petitioner for his appointment on a Class-IV post in 2 the Respondent University, against its Advertisement dated 18.10.2001, after giving due representation/ reservation to the physically handicapped category candidates.” As with regard to the aforementioned prayer, learned counsel for the petitioner would submit that when the respondents have filled up 252 posts of Class-IV employees they were required to appoint at least seven persons among the physically handicapped persons, but from the list of appointment dated 5.6.2003 of 215 persons it would clear that only five of them of physically challenged category (handicapped) were appointed. He would, therefore, submit that the petitioner also belongs to the physically handicapped category he too ought to have been considered and appointed. In this case two counter affidavits have been filed and the main counter affidavit of the University has already been served on the counsel for the petitioner on 27.8.2003. In the said counter affidavit it has been stated that the respondent-University pursuant to the advertisement having undergone process of selection had fixed minimum qualifying marks of 30 for B.C. category but the petitioner had obtained only 27 marks and as such his selection was not made on the ground that he could not obtain minimum qualifying marks. The respondents have also explained the case of one Jai Prakash Gupta by stating that he had secured qualifying marks. Counsel for the petitioner, however, would submit that as appointment of 215 persons were made, the petitioner’s 3 qualifying marks could not have stood for his disadvantage in the reserve category. The concept of reservation for physically handicapped category is horigental and not vertical and therefore such candidates have to be placed in each of the categories. The petitioner admittedly is a candidate of B.C. category and the qualifying marks for them was 30 marks. In that view of the matter, this Court would find it difficult to direct the respondents to appoint the petitioner even if he had not secured minimum qualifying marks. It is not the rule and requirement in law that every post must be filled up even if candidate would not secure the minimum qualifying marks. That being so, this application is wholly misconceived and is, accordingly, dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)