Rekha Sharma v. the Rajasthan High Court, Jodhpur & Anr.
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 advertisement for the direct recruitment of 120 posts of Civil
Judge and Judicial Magistrate under the Civil Judge Cadre. The
appellant-Ms. 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.
492 [2024] 8 S.C.R.
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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 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 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…………..
Rekha Sharma v. The Rajasthan High Court, Jodhpur & Anr.
4. Number of Vacant Posts and Reservations: -
Total
no. of
vacancies
Year General Reserved Persons
with
benchmark
disabilities
SC ST OBC EWS MBC
89 2020
(upto
Dec.
2020)
35 out
of which
10 posts
for
women
out of
10 posts
02 posts
reserved
for
widow
14 out
of which
04 posts
for
women
out
of 04
posts 01
post for
widow
10 out
of which
03 posts
for
women
18 out
of which
05 posts
for
women
out
of 05
posts 01
post for
widow
08 out
of which
02 post
for
women
04 out
of which
01 post
for
woman
Out of 89
vacancies
04 posts
for persons
with
benchmark
disabilities
31 2021
(upto
Dec.
2021)
14 out
of which
04 posts
for
women
out of
4 posts
01 post
reserved
for
widow
04 out
of which
01 post
for
woman
03 06 out
of which
01 post
for
woman
03 01 Out of 31
vacancies,
01 post for
persons
with
benchmark
disabilities
*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
494 [2024] 8 S.C.R.
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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 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.
6-14 ----------
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.
Rekha Sharma v. The Rajasthan High Court, Jodhpur & Anr.
(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 :
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
496 [2024] 8 S.C.R.
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ST 53
OBC-NCL 67
OBC-NCL (Divorcee) 63
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 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
Rekha Sharma v. The Rajasthan High Court, Jodhpur & Anr.
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
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.
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
498 [2024] 8 S.C.R.
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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 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
1 [1992] Supp. 2 SCR 454 : 1992 Supp. (3) SCC 217
Rekha Sharma v. The Rajasthan High Court, Jodhpur & Anr.
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 Others .2 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 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.
2 [1995] Suppl. 2 SCR 396 : (1995) 5 SCC 173
500 [2024] 8 S.C.R.
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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.
Result of the case: Appeals dismissed.
†