Rekha Sharma vs The Rajasthan High Court, Jodhpur

2024 INSC 615 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5051 OF 2023

REKHA SHARMA APPELLANT(S)

VERSUS

THE RAJASTHAN HIGH COURT, JODHPUR & ANR. RESPONDENT(S)

WITH

CIVIL APPEAL NO. 5052/2023

RATANLAL APPELLANT(S)

VERSUS

THE RAJASTHAN HIGH COURT, JODHPUR & ANR. RESPONDENT(S)

JUDGMENT

BELA M. TRIVEDI, J.

1. Both the appeals having common question of law and facts were heard

together and are being decided by this common judgment.

2. The facts in nutshell are that the respondent High Court had issued an Signature Not Verified advertisement for the direct recruitment of 120 posts of Civil Judge and Digitally signed by VISHAL ANAND Date: 2024.08.21 16:08:11 IST Reason: Judicial Magistrate under the Civil Judge Cadre. The appellant-Ms.

1 Rekha Sharma, having 40% permanent disability in relation to her eyes,

had applied for the said post. The appellant-Ratan Lal having locomotor

disability i.e. 55% permanent physical impairment in relation to his right

upper limb, had also applied for the said post. Both having appeared in

the Preliminary Examination were declared “not successful.” As per the

result declared on 11.01.2022, the cut off marks in respect of every

category mentioned in the advertisement were shown except the cut off

marks for the category of Persons with benchmark disabilities.

3. Being aggrieved by the said result, the appellant-Ratan Lal (in C.A. No.

5052/2023) had preferred D.B. Civil Writ Petition No. 1436 of 2022,

which came to be dismissed by the High Court vide the judgment and

order dated 02.03.2022. The appellant-Rekha Sharma (in C.A. No.

5051/2023) had also filed D.B. Civil Writ Petition No. 1868 of 2022 which

came to be dismissed by the High Court vide the order dated 06.04.2022

relying upon the judgment dated 02.03.2022 passed in Writ Petition No.

1436 of 2022.

4. The bone of contention raised by the learned counsels appearing for

both the appellants in the instant appeals is that the respondents while

declaring the result of Preliminary Examination showing the cut off

marks for each of the categories mentioned in the advertisement in

question, had not shown the cut off marks for the category of Persons

2 with benchmark disabilities. According to them, the said action of the

respondents was discriminatory and violative of their Fundamental

Rights enshrined in Article 14, 16 and 21 of the Constitution of India,

and also violative of the Rajasthan Judicial Service Rules, 2010 read

with Rajasthan Rights of Persons with Disabilities Rules, 2018.

5. According to the learned Senior Counsel Ms. Pinky Anand appearing

for the respondents, the appellant-Rekha Sharma having obtained 57

marks in the EWS category for which the cut off marks were 69 marks,

and the appellant-Ratan Lal having secured 59 marks in the OBC-NCL

category for which the cut off marks were 67 marks, were found to be

not qualified for appearing in the Main Examination. She further

submitted that the entire selection process was over on 30.08.2022 and

the appointments of successful candidates have already been made by

the respondents on 09.03.2023. The fresh advertisement for the

vacancies of 2022-2024 was issued on 09.04.2024 and the result of the

Preliminary Examination in respect of the said advertisement has also

been declared on 15.07.2024.

6. Before dealing with the rival contentions raised by the learned counsels

for the parties, let us refer to the relevant paragraphs of the

advertisement dated 22.07.2021 in question.

“1. The Rajasthan High Court, Jodhpur under the Rajasthan Judicial Service Rules, 2010 (As amended) is inviting online application in the prescribed online format for direct recruitment on 120 vacant posts (89 posts of 2020 and 31

3 posts of 2021) of Civil Judge and Judicial Magistrate under the Civil Judge Cadre on probation at the pay scale of 27700-770-33090-920-40450-1080- 44770.

2-3…………..

4. Number of Vacant Posts and Reservations: -

Total no. Year General Reserved Persons of with vacancies benchmark disabilities SC ST OBC EWS MBC 89 2020 35 out of 14 out of 10 out 18 out 08 out 04 out Out of 89 (upto which 10 which 04 of of of of vacancies Dec. posts for posts for which which which which 04 posts for 2020) women women 03 05 02 post 01 post persons out of 10 out of 04 posts posts for for with posts 02 posts 01 for for women woman benchmark posts post for women women disabilities reserved widow out of for widow 05 posts 01 post for widow 31 2021 14 out of 04 out of 03 06 out 03 01 Out of 31 (upto which 04 which 01 of vacancies, Dec. posts for post for which 01 post for 2021) women woman 01 post persons out of 4 for with posts 01 woman benchmark post disabilities reserved for widow

*Out of 05 posts reserved for persons with Benchmark Disabilities, 01 (one)post is reserved for blindness and low vision, 01 (one) for deaf and hard of hearing, 01 (one) for locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victim and muscular dystrophy and 02 (two) for autism, intellectual disability, specific learning disability and mental illness and multiple disabilities from amongst persons under clause (a) to (d) including deaf blindness in the posts identified for each disabilities.

5. In relation to reservation in various categories: -

i. The reservation in the reserved post for women (widow or divorcee) shall be category wise horizontal in the vacant posts, which means that the category (Scheduled Caste/Scheduled Tribes/Other Backward Class/Extremely Backward Class/ Economically Weaker Sections/General Category) of woman applicant selected will be adjusted in the same category for which she filed application.

ii. The reservation for the handicapped shall be horizontal against the total vacant posts, which means that category (Scheduled Caste/Scheduled Tribes/Other Backward Class/ Extremely Backward Class/ Economically

4 Weaker Sections/General Category) of handicapped applicant selected will be adjusted in the same category for which he filed application. iii. In case candidates for Scheduled Caste/Scheduled Tribes/Other Backward Class/ Extremely Backward Class/ Economically Weaker Sections/Women (Widow or divorcee)/handicapped of Rajasthan State is not available then these posts shall be filed as per the procedure and customs of the Rajasthan Judicial Service Rules, 2010.

iv. For selection to the post of general category, the candidates of reserved category should be eligible like the candidates of general category.

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15. Scheme & Syllabus of Examination: -

(1) The competitive examination for the recruitment to the post of Civil Judge shall be conducted in two stages, i.e., Preliminary Examination and Main Examination. The marks obtained in the Preliminary Examination by the candidate who are declared qualified for admission to the Main Examination will not be counted for determining final merit.

(2) The number of candidate to be admitted to the Main Examination will be fifteen times the total number of vacancies (category-wise) but in the said range all those candidates who secure the same percentage of marks on the last cut-off will be admitted to the main examination.

Note: - To qualify for Main Examination, the candidates of SC/ST category shall have to secure minimum 40% marks and candidates of all other categories shall have to secure 45% minimum marks in the Preliminary Examination.

(3) The number of candidates to be admitted to the interview shall be, as far as practicable three times the total number of vacancies category-wise. Provided that to qualify for interview, a candidate shall have to secure a minimum of 35% marks in each of the law papers and 40% marks in aggregate in the Main Examination.

Provided further that a candidate belonging to Scheduled Caste or Scheduled Tribe category, shall be deemed to be eligible for interview, if he has obtained minimum of 30% marks in each of the law papers and 35% marks in the aggregate in the Main Examination.

(4) It shall be compulsory to appear, in each and every paper of written test, as also before the lnterview Board for viva voce. A candidate, who has failed to appear in any of the written paper or before the board for viva voce shall not be recommended for appointment.

(5) The examination scheme for recruitment to the cadre of Civil Judge shall consist of :

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l. Preliminary Examination (Objective Type) ll. Main Examination (Subjective Type) lll. Interview……”

7. As per the notice dated 11.01.2022 declaring the result of the

Preliminary Examination held on 28.11.2021, the respondents had

mentioned the following cut off marks for the respective categories

mentioned in the advertisement.

Cut-off Marks

Category Cut Off Marks General 72 General (Divorcee) 58 General (Widow) 45 SC 55 SC (Divorcee) 39 ST 53 OBC-NCL 67 OBC-NCL 63 (Divorcee) OBC-NCL (Widow) 46 MBC-NCL 46 EWS 69

8. Though the Learned Counsels for the appellants have strenuously

urged that it was incumbent on part of the respondents to show the cut

off marks for the category of Persons with benchmark disabilities,

particularly when the cut off marks for each of the categories mentioned

in the advertisement in question were shown, it is difficult to accept the

said submissions. Apart from the fact that the appellants having

participated in the Selection Process in respect of the advertisement in

question and having failed to succeed in the Preliminary Examination,

had filed the writ petitions in the High Court, the appellants have also 6 failed to substantiate their contention that it was incumbent on part of

the respondents to fix the cut off marks for the category of Persons with

benchmark disabilities. As could be seen from the advertisement itself,

the reservation in favour of the Persons with disabilities was an Overall

Horizontal Reservation and was not compartmentalised reservation,

because out of the total vacancies mentioned in the advertisement, five

posts were reserved for the Persons with benchmark disabilities.

9. It is quite well settled that the Horizontal Reservation is of two types: -

(i) Compartmentalised Horizontal Reservation, and (ii) Overall

Horizontal Reservation. The Compartmentalised Horizontal Reservation

is such wherein the proportionate vacancies are reserved in each

vertical reserved category. However, in case of Overall Horizontal

Reservation, the Reservation is provided on the total post advertised i.e.

such reservation is not specific to each vertical category. As per the

advertisement dated 22.07.2021, the vacancies in case of women

candidates were classified/identified for each category i.e. General,

OBC, SC, ST, MBC whereas for the Persons with benchmark

disabilities, no such vacancies were mentioned in the said categories.

Further, in the three-tier process of the Examination Scheme, the

number of candidates to be admitted to the Main Examination were

fifteen times the total number of vacancies (category wise) and the

candidates had to qualify themselves by securing the minimum 7 percentage of marks fixed for each of the categories in the Preliminary

Examination. Therefore, the Persons with benchmark disabilities falling

under the Overall Horizontal Reservation had to qualify for the Mains

Examination by securing minimum cut off marks fixed for the concerned

category in which he/she had applied.

10. Apart from the fact that there was nothing provided in the advertisement

for the fixation of cut off marks for the Persons with benchmark

disabilities, who fall under the Overall Horizontal Reservation, the

learned counsels for the appellant have also failed to point out from the

Rajasthan Judicial Services Rules, 2010 under which the recruitment

process was undertaken, that such fixation of cut off marks for the

Persons with benchmark disabilities was mandatory. The reliance

placed by the learned counsels for the appellants on the notification

dated 14.10.2021 issued by the Rajasthan Government is also not

helpful to them in as much as the said notification was given effect to, in

the notification dated 16.04.2024 amending the RJS Rules, 2010,

providing relaxation in age and concession of 5% in marks in favour of

Persons with benchmark disabilities. None of the said notifications or

amendment in the RJS Rules, 2010 make it mandatory on part of the

respondents to declare separate cut off marks for the Persons with

benchmark disabilities.

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11. It cannot be gainsaid that the said Act of 2016 is a social legislation

enacted for the benefit of the Persons with disabilities and its provisions

must be interpreted in order to enhance its objectives, so that the

Persons with disabilities enjoy the right to equality, life with dignity and

respect for his or her integrity equally with others as contemplated under

the Act. However, there is no such provision either in the said Act of

2016 or in the Rules of 2018 framed by the State of Rajasthan, which

could be said to have been violated by the respondents by not fixing the

cut off marks for the Persons with benchmark disabilities.

12. Undisputedly, the reservation for the Persons with disabilities has been

treated as Horizontal Reservation i.e. the reservation under Clause (1)

of Article 16, and not the Vertical reservation i.e. the reservation under

Clause (4) of Article 16 of the Constitution of India. In the case of Indra

Sawhney & Others vs. Union of India and Others1 the concept of

“Vertical Reservations” and “Horizontal Reservations” has been aptly

explained. The relevant paragraph 812 thereof reads as under: -

“812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: 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

1 1992 Supp. (3) SCC 217 9 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 this quota will be placed in the appropriate category; if he belongs to SC category he 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 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. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.”

13. Thus, in view of the said clarification made in Indra Sawhney, there

remains no doubt that the reservation for persons with disabilities would

be relatable to Clause (1) of Article 16 and the persons selected against

this quota will be placed in appropriate category i.e. if he/she belongs to

Scheduled Category, he/she will be placed in that category by making

necessary adjustments, and if he/she belongs to open category,

necessary adjustments will be made in the open category.

14. The concept of Overall Reservations and Compartmentalised

Reservations is also aptly explained by this Court in Anil Kumar Gupta

and Others vs. State of U.P. and Others2. It has been observed

therein that where the seats reserved for the Horizontal Reservations

are proportionately divided amongst the Vertical (Social) Reservations

and are not intertransferable, it would be a case of Compartmentalised

2 (1995) 5 SCC 173 10 Reservations, whereas in the Overall Reservation, while allocating the

special reservation candidates to their respective social reservation

category, the Overall Reservation in favour of special reservation

categories has to be honoured. Meaning thereby the special

reservations cannot be proportionately divided among the Vertical

(Social) reservation categories, and the candidates eligible for special

reservation categories have to be provided overall seats reserved for

them, either by adjusting them against any of the Social/Vertical

reservations or otherwise, and thus they are intertransferable.

15. As could be seen from the advertisement itself, the reservation for

women (widow or divorcee) was compartmentalised reservation,

whereas the reservation for the persons with benchmark disabilities was

overall reservation. The respondents therefore in the notice declaring

result of Preliminary Examination had rightly shown the cut off marks for

all the categories except for the category of persons with benchmark

disabilities. The Persons with benchmark disabilities for being adjusted

in the category for which he or she had applied, had to secure the

minimum cut off marks fixed for such category under which he or she

had applied. Such fixation of cut off marks for other categories and non

fixation of cut off marks for the category of persons with benchmark

disability could neither be said to be arbitrary nor violative of any of the

Fundamental Rights of the appellants.

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16. As well settled, the candidates who consciously took part in the process

of selection cannot be permitted to question the advertisement or the

methodology adopted by the respondents for making selection, on their

having been declared as unsuccessful in the Preliminary Examinations.

The appellants after they having found that their names do not appear

in the list of successful candidates of Preliminary Examination, could not

have questioned the result on the ground that the respondents had not

declared the cut off marks for the Persons with benchmark disabilities.

As stated earlier, the respondents have declared the cut off marks for

the persons falling under Compartmentalised Horizontal Reservation

and not for the Overall Horizontal Reservation under which the

appellants fall. Such action could neither be said to be arbitrary nor

violative of Article 14, 16 and 21 of the Constitution of India.

17. In that view of the matter, we do not find any illegality or infirmity in the

impugned judgements and orders passed by the High Court. Both the

appeals are dismissed accordingly.

..……..…..................................J. [BELA M. TRIVEDI]

..………..…..................................J. [SATISH CHANDRA SHARMA]

NEW DELHI;

AUGUST 21, 2024

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