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IN THE HIGH COURT OF MADHYA PRADESH
Mohammad Rafiq, CJ, and Vijay Kumar Shukla, J.
Saroj Dehariya v. The State of M. P.&Others
Writ Petition No. 22358 of 2019 (Jabalpur);
Decided on 23.7.2021
(1) Reservation -- Rights of Persons with Disabilities Act, 2016 -- Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 -- object -- both enactments intended to give succour to those upon whom destiny has inflicted various kinds of disabilities -- to provide them opportunity to participate in social milieu like any other able-bodied person. (2017) 14 SCC 1, (2013) 10 SCC 772, (2016)13 SCC 153 and (2004) 11 SCC 1 referred to. [Para 8]
(2) Reservation -- Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 -- implementation of Act is far from satisfactory -- disabled are victims of discrimination in spite of beneficial provisions of Act -- have to fight at two fronts -- first is disablement -- second is mind set of society and their bias that this class would not be able to discharge duties as effectively as other able-bodied persons. [Para 12]
(3) Rights of Persons with Disabilities Act, 2016 -- S. 34 -- Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 -- Ss. 32 and 33 -- Constitution of India - Art. 16 -- reservation -- manner -- vertical reservation can be granted in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes with reference toArt. 16(4) of Constitution -- reservation in favour of physically handicapped with reference to Art. 16(1) of Constitution shall be considered as horizontal reservation -- reservation providedto physically handicapped persons would be, for purpose of computation of vertica lreservation, adjusted/counted against their respective categories - purpose is to ensure that horizontal reservation provided within vertical reservation may not result in exceeding percentage of prescribed quota -- respondents should have first applied vertical reservation -- they were obliged to prepare merit list of 30 candidates of Scheduled Caste category available after preparation of merit list of open category candidates -- no candidate belonging to physically handicapped category within said list - respondents were obliged to delete last candidate in said list to accommodate petitioner regardless of his merit, subject to minimum bench mark prescribed -- for applying and giving horizontal reservation to physically handicapped person, cut-off marks of category to which they other wise belong, would hardly be material -- petitioner secured more than benchmark prescribed by examining body -- entitled to be called for interview -- petitioner secured 35 marks out of 50 in interview -- petitioner has been victim of wrong application of law of reservation -- should have been immediately selected for appointment -- petition allowed. 1992 Supp. (3) SCC 217, (1995) 5 SCC 173 and (2007) 8 SCC 785 followed. (2019) SCC Online Del. 9852 distinguished. 2017 (2) MPLJ 134 and W.P. No. 19833 of 2017 decided on 3.5.2018 referred to. [Paras 13, 15 & 16]
¼1½ vkj{k.k & fnO;kaxtu vfèkdkj vfèkfu;e] 2016 & fu%'kDr O;fDr ¼leku volj] vfèkdkj laj{k.k v©j iw.kZ Òkxhnkjh½ vfèkfu;e] 1995 & mn~ns'; & n¨u¨a vfèkfu;fefr;¨a }kjk mUgsa jkgr nh tkuk vk'kf;r ftu ij fu;fr us vusd çdkj dh fu%'kärk,a yknh gSa & mUgsa vU; fdlh Òh g"V&iq"V O;fDr dh Òkafr gh lkekftd ifjos'k esa Òkx ysus dk volj çnku djukA ¼2017½ 14 ,l lh lh 1] ¼2013½ 10 ,l lh lh 772] ¼2016½ 13 ,l lh lh 153 rFkk ¼2004½ 11 ,l lh lh 1 fufnZ"VA ¼iSjk 8½
¼2½ vkj{k.k & fu%'kDr O;fDr ¼leku volj] vfèkdkj laj{k.k v©j iw.kZ Òkxhnkjh½ vfèkfu;e] 1995 & vfèkfu;e dk fØ;kUo;u vlar¨"kçn & vfèkfu;e d¢ fgrdkjh micaèk¨a d¢ ckotwn fnO;kaxtu foÒsn d¢ f'kdkj & n¨ e¨p¨Z ij yM+uk iM+rk gS & igyk fu%'kDrrk & nwljk lekt dh ekufldrk v©j ;g iwoZxzg fd ;g oxZ vU; g"V&iq"V O;fDr;¨a d¢ leku çÒkoh :i ls drZO;¨a dk fuoZgu ugha dj ld¢xkA ¼iSjk 12½
¼3½ fnO;kaxtu vfèkdkj vfèkfu;e] 2016 & èkkjk 34 & fu%'kDr O;fDr ¼leku volj] vfèkdkj laj{k.k v©j iw.kZ Òkxhnkjh½ vfèkfu;e] 1995 & èkkjk 32 rFkk 33 & Òkjr dk lafoèkku & vuqPNsn 16 & vkj{k.k & jhfr & lafoèkku d¢ vuqPNsn 16¼4½ d¢ lanÒZ esa ÅèoZ vkj{k.k vuqlwfpr tutkfr;¨a] vuqlwfpr tkfr;¨a rFkk vU; fiNM+s ox¨Z d¢ i{k esa fn;k tk ldrk gS & lafoèkku d¢ vuqPNsn 16¼1½ d¢ lanÒZ esa 'kkjhfjd :i ls fu%'kDr O;fDr;¨a d¢ i{k esa vkj{k.k {kSfrt vkj{k.k ekuk tk,xk & ÅèoZ vkj{k.k dh lax.kuk d¢ ç;¨tu d¢ fy,] 'kkjhfjd :i ls fu%'kDr O;fDr;¨a d¨ fn;k tkus okyk vkj{k.k mud¢ vius&vius çox¨Z esa lek;¨ftr@laxf.kr fd;k tk,xk & ç;¨tu ;g lqfuf'pr djus dk gS fd ÅèoZ vkj{k.k d¢ varxZr fn;k tkus okyk {kSfrd vkj{k.k fofgr d¨Vs d¢ çfr'kr ls vfèkd ugha g¨a & çR;FkÊx.k d¨ igys ÅèoZ vkj{k.k ykxw djuk pkfg, Fkk & og [kqys çoxZ d¢ vH;fFkZ;¨a dh çkoh.; lwph rS;kj djus d¢ i'pkr~ miyCèk vuqlwfpr tkfr çoxZ d¢ 30 vH;fFkZ;¨a dh çkoh.; lwph rS;kj djus d¨ ckè; Fks & mDr lwph esa 'kkjhfjd :i ls fu%'kDr çoxZ dk d¨Ã vH;FkÊ ugha & ;kph dh çoh.krk ls fujis{k] fofgr U;wure ekunaM d¢ vè;èkhu] ;kph d¨ LFkku nsus d¢ fy, çR;FkÊx.k mDr lwph esa ls vafre vH;FkÊ d¨ foy¨fir djus d¨ ckè; Fks & 'kkjhfjd :i ls fu%'kDr O;fDr d¨ {kSfrt vkj{k.k ykxw djus v©j nsus d¢ fy, ml çoxZ d¢ dV&vkWQ vad rkfRod ugha g¨axs ftl çoxZ d¢ og vU;Fkk gSa & ;kph us ijh{kk fudk; }kjk fofgr ekunaM ls vfèkd vad çkIr fd, & lk{kkRdkj d¢ fy, cqyk, tkus dk gdnkj & ;kph us lk{kkRdkj esa 50 esa ls 35 vad çkIr fd, & ;kph vkj{k.k dh fofèk xyr ykxw fd, tkus dk f'kdkj gqvk gS & fu;qfDr d¢ fy, rqjar p;fur fd;k tkuk pkfg, Fkk & ;kfpdk eatwjA 1992 lIyhŒ ¼3½ ,l lh lh 217] ¼1995½ 5 ,l lh lh 173 rFkk ¼2007½ 8 ,l lh lh 785 vuqlfjrA ¼2019½ ,l lh lh vkWuykbu fnYyh 9852 çÒsfnrA 2017 ¼2½ ,e ih ,y ts 134 rFkk fjV ;kfpdk Øekad 19833 lu~ 2017 fu.kÊr fnukad 3-5-2018 fufnZ"VA ¼iSjk 13] 15 ,oa 16½
ORDER
Rafiq, C.J. -- 1. This writ petition filed by Saroj Dehariya seeks to challenge the final result of Civil Judge Class-II (Entry Level) Examination, 2018 declared bythe Registrar (Exam), High Court of Madhya Pradesh, Jabalpur (respondent No.4) vide notification dated 21.8.2019 (Annexure-P/6) to the extent of non-selection and consequential denial of appointment to the petitioner on the post of Civil Judge Class-II (Entry Level) in the Physically Handicapped quota (Scheduled Caste category).
2. The facts of the case, in brief, are that the respondents No. 3 & 4 floated advertisement dated 17.12.2018 (Annexure-P/1) notifying total 190 posts for appointment of Civil Judge Class-II (Entry Level). The categorywise break-up of such posts is as follow:
| (a) | Un-reserved (UR) | 95 |
| (b) | Other Backward Classes (OBC) | 27 |
| (c) | Scheduled Caste (SC) | 30 |
| (d) | Scheduled Tribe (ST) | 38 |
|
| Total | 190 |
The advertisement stipulated that reservation of 6% shall be given to the Specially Abled candidates as per the provisions of section 34 of the Rights of Persons with Disabilities Act, 2016 (for short the “Act of 2016”) and selection of that category shall be made on the basis of their inter-se merit, however their seats shall be counted against any of the aforementioned quota to which they belonged. According to the petitioner, he secured 224 marks out of total 450 marks. He has submitted his application form for appointment against the vacant post under the Scheduled Caste (Physically Handicapped) Category. The petitioner has placed on record copy of his disability certificate (Annexure-P/4), according to which he has 68% permanent locomotor disablement. It is contended that out of 474 candidates declared successful in the main written examination, the petitioner was the only physically handicapped candidate who was called for interview. Four seats were reserved for physically handicapped persons under Un-reserved/Open Category, one seat was reserved for physically handicapped person in Scheduled Caste Category and two seats were reserved for physically handicapped persons in Scheduled Tribe Category. When however the result declared by the respondents No.3 & 4 vide notification dated 21.8.2019 (Annexure-P/6) the petitioner was shocked and surprised to know that he has not been selected despite being the only eligible candidate in his category.
3. Mr. Sankalp Kochar, learned counsel for the petitioner submitted that the respondents No. 3 & 4 in the previous examination for appointment on the post of Civil Judge Class-II (Entry Level) had selected one Chetna Dashora under the Physically Handicapped quota in Open/General Category even though she had secured only 261 marks as against cut off marks of 288 in that category. It is thus clear that she had scored much lesser marks than the last general category candidate, yet she was appointed by extending her the benefit of horizontal reservation. In the preset case, the petitioner acquired 189 out of 400 marks in the main written examination and his final score after interview was 224 marks out of 450 marks, which was more than 45% of total marks, prescribed as the minimum qualifying marks for Scheduled Caste Category as per the advertisement. Learned counsel for the petitioner further contended that the explanation given by the respondents for not applying the same principle to the case of the petitioner is wholly untenable. What the respondents have contended that at the time when Chetna Dashora was selected, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the “Act of 1995”) was in force and therein there was no method of inter-exchange of unfilled seats of one category of physically handicapped candidates with another category and for carrying forward of the unfilled vacancy to the next year. It
The central legal point established in the judgment is the interpretation and application of Section 33 of the Persons with Disabilities Act, 1995, regarding the reservation of posts for physically c....
Appointment on posts of Civil Judge and Judicial Magistrate under Civil Judge Cadre – Candidates who consciously took part in process of selection cannot be permitted to question advertisement or met....
The classification of PwBD candidates in the Civil Services Examination Rules is valid, allowing different treatment for SC/ST and OBC candidates regarding the number of attempts.
The classification of PwBD candidates in Civil Services Examination Rules is valid, allowing different number of attempts for SC/ST and OBC categories, reflecting a legitimate policy decision.
The classification of candidates with disabilities for civil service attempts is lawful, distinguishing between SC/ST and OBC categories, affirming that policy decisions do not violate equality right....
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