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Synopsis

The Supreme Court has on August 21, 2024 said that persons with benchmark disabilities are considered in horizontal reservation and they are adjusted in the category for which they had applied, so they have to secure the minimum cut-off marks fixed for such a category. 

A bench of Justices Bela M Trivedi and Satish Chandra Sharma rejected a plea by one Rekha Sharma and another candidate questioning the validity of the Rajasthan High Court's decision on the administrative side of not disclosing cut-off marks for persons with disabilities in an examination held for posts of Civil Judge.

"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," the bench said.

The court also pointed out that 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, it said.

The court also said that it is well settled that 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 bench opined that the appellants, upon discovering that their names were absent from the list of successful candidates in the preliminary examination, could not challenge the results based on the argument that the respondents had failed to disclose the cut-off marks for individuals with benchmark disabilities.

"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," the bench said.

The court dismissed two appeals, finding no illegality or infirmity with the high court's judgment of 2022, rejecting the plea against non disclosure of cut-off marks for persons with disabilities.

Appellants Rekha Sharma and Ratan Lal, having permanent disability, applied for the post but were declared unsuccessful in the preliminary examination. They found that 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.

They contended that the said action of the respondents was discriminatory and violative of their fundamental rights enshrined in Article 14, 16 and 21 of the Constitution and also violative of the Rajasthan Judicial Service Rules, 2010 read with Rajasthan Rights of Persons with Disabilities Rules, 2018.

Senior advocate Pinky Anand for the high court submitted that appellant 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 also said that the entire selection process was over on August 30, 2022 and the appointments of successful candidates had already been made by the respondents on March 09, 2023. 

The counsel also said that the fresh advertisement for the vacancies of 2022-2024 was issued on April 09, 2024, and the result of the preliminary examination in respect of the said advertisement had also been declared on July 15, 2024.

Referring to the advertisement, the bench noted that 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.

As per the advertisement, the bench noted that the vacancies in the 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 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," the bench said.

The court also noted that 2016 Act 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," the bench said.

The court also pointed out that 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 view of the said clarification made in Indra Sawhney (1992) case, the bench noted, 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.

Referring to Anil Kumar Gupta and Others vs. State of U.P. and Others (1995), the bench said that 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. 

Case Title: Rekha Sharma Vs The Rajasthan High Court, Jodhpur & Anr