The petitioner, having participated in the selection process without protest, cannot challenge the same upon being declared unsuccessful. The reservation for PwD is a horizontal reservation, and candidates must secure minimum qualifying marks as fixed by the authority concerned.

JUDGMENT

V. Kameswar Rao, J. - The present petition has been filed by the petitioner with the following prayers: -

"In view of the above facts and circumstances, it is therefore most humbly prayed that this Hon"ble Court may kindly be pleased to :-

i) Issue a writ in the nature of mandamus or any other appropriate writ/s, order/s, direction/s, directing the Respondent to set aside/quash the new advertisement published by the NBE dated 01.06.2021as mentioned in para 16 of this petition.

ii) Issue a writ in the nature of mandamus or any other appropriate writ/s, order/s, direction/s, directing the Respondent to declare cutoff marks for PWD categories and allow the present petitioner to sit for 2nd stage of Exam as per the mandate of the law.

iii) Pass any other order/s or direction/s as this Hon"ble Court deems fit and proper be also awarded to the Petitioner and against the Respondents in the interest of justice."

2. The respondent in the present writ petition is the National Board of Examination (NBE, for short). The counter affidavit filed by Ms. Ruchira Gupta learned counsel appearing on behalf of the respondent, reads that vide resolution dated July 07, 2021, the name of the respondent has been changed from NBE to National Board of Examinations in Medical Sciences (NBEMS, for short) which is an autonomous body under the Ministry of Health and Family Welfare. Wherever a reference has been made to NBE it shall be read to mean NBEMS.

3. Now coming to the issue at hand, it is the case of the petitioner that he belongs to the category of Persons with Disabilities (PwD, for short) having 42% post-polio residual paralysis in his lower limb. He appeared for the exam for recruitment in NBE.

4. That the petitioner has applied for the post of Senior Assistant vide advertisement No. 21005/RECT/2020 published by NBE dated July 11, 2020. Thereafter, he appeared for the preliminary examination on the date of August 31, 2020. That through the above-mentioned advertisement the following seats were reserved as per the Central Government Reservation Policy namely: -

In addition, in the said advertisement it was mentioned that "Reservation for vacancy of SC/ST/OBC-NCL/EWS as per Govt. of India instructions/rules. Total number of vacancies are inclusive of number of vacancies of PWD."

5. Mr. Rajan Mani learned counsel appearing on behalf of the petitioner contended that in the above-mentioned advertisement there were no separate seats reserved for the PwD categories. However, according to the roster reservation register, one post of Senior Assistant is reserved under the UR-PwD-1 Category and the petitioner belongs to the same category. According to Mr. Mani, the petitioner fulfills all the qualifications to get the seat lawfully.

6. Mr. Mani stated that on August 21, 2020, the petitioner approached the respondent / NBE via e-mail and requested them to clearly mention reserved seats for PwD to avoid unnecessary confusion but the respondent has not given any response to the petitioner regarding the same.

7. That on September 14, 2020, the respondent has declared the result of the preliminary examination held on August 31, 2020, wherein the cutoff list of UR, OBC, SC, ST were mentioned but there was no list of PwD Categories.

8. Mr. Mani contended that on September 17, 2020, the petitioner through an e-mail requested the respondent to consider Section.34 of The Rights of Persons with Disabilities Act, 2016 (RPWD Act, 2016, for short) but the respondent have not responded to it and have completely ignored the mandate of the RPWD Act, 2016.

9. Mr. Mani also stated that the respondent failed to address the grievances of the petitioner. The petitioner on September 27, 2020, approached the Court of Chief Commissioner for Persons with Disabilities (Divyangjan) [CCPD, for short]. The CCPD has passed i