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2008 Supreme(Guj) 63
2008 (3) GCD 1763 (Guj)
Hon’ble Mr. Justice Bhagwati Prasad
Patel Sunilkumar Manubhai
Versus
State of Gujarat & Others
Special Civil Application No. 13513 of 2007—Decided on 15/02/2008
Mr. K.B. Pujara, for the Petitioner.
Mr. S.P. Hasurkar, AGP, for the Respondent No. 1
Rule Served by DS, for the Respondent Nos. 1and 3
Rule Served, for the Respondent No. 2.
Mr. Manish J Patel, for the Respondent No.3.
Mr. V.C. Vaghela, for the Respondent No. 4.
Important Point :
Whether candidates who have got into the general quota in their own merit can be treated under Physically Handicapped category
Headnote:Service and Employment — Appointment Physically Handicapped — Quota — Selection secured in their own merit — Effect of — Determination of availability of posts for Physically Handicapped — Respondent has filled in 12 post of Physically Handicapped category candidates out of total number of 312 posts and thus contended that it would be more than quoto which is 3% i.e. making nine seats — The petitioner has joined the issue alleging that candidates who hove got into the general quota in their own they cannot be considered under Physically Handicapped category — Court observed that reservation for Physically Handicapped persons is to be treated to be horizontal as observed by Supreme Court in its judgment—Therefore, treating the reservation for Physically Handicapped to be horizontal is 3% reservation as required to be fulfilled has been fulfilled by recruiting 12 candidates instead of 9 candidates—The mandate in the constitution and the Act have been us fulfilled — Petition is, therefore, merit-less.
Held :
According to this Court, if the ratio of Rajesh Kumar Daria vs. Rajastahn Public Service Commission & Ors., 2007 (8) SCC 785 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 Court in the case of Mahesh Gupta & Ors. vs. Yashwant Kumar Ahirwar & Ors., 2007 (6) Supreme 276. 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 horzontal 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 Phycially 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. [Para 7]
Petition Dismissed
Bhagwati Prasad, J.—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.
2. 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. vs. Yashwant Kumar Ahirwar & Ors., 2007 (6) Supreme 276.
3. 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 bouned by the limitation of 50 % as has been observed by the Honourable Supreme Court in the case of Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217.
4. 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 vs. Union of India (Supra), has categorised the reservations in two different froms, one 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 Pages. 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; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary a
