Uttarakhand HC: Persons With Disabilities Entitled To Horizontal Reservation Cutting Across "All Categories": HC Quashes UKPSC Recruitment Notification

High Court:   Uttarakhand High Court

Bench:              Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe

Case No. :         WP(S/B) No.49 of 2022, 

Case Title:        Manish Chauhan and another Vs. State of Uttarakhand and another

Date of Judgement:  27 July 2022

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Case Brief:

The Uttarakhand High Court has quashed an advertisement issued by the Uttarakhand Public Service Commission notifying vacancies for the post of Assistant Professors in Government Colleges, finding it to be in violation of Rule 11(4) of the Rights of Persons with Disability Rules, 2017 and the Supreme Court's decision in Indra Sawhney vs. Union of India and Anr.

The notification prescribed Horizontal reservation in a manner that in the Un-reserved category, no reservation was available to the physically handicapped candidates in the subject of Political Science. Similarly, in the History, no reserved seat was shown for a candidate of disability category who may also be a Scheduled Tribes candidate. 

"The manner in which the State has sought to apply Horizontal reservations is completely contrary to the decision of the Supreme Court in Indra Sawhney (Supra)...Persons with disabilities are entitled to horizontal reservation cutting across all categories." the bench of Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe observed.

The Court explained that an otherwise eligible and qualified candidate/person with disability would first be allocated a seat and depending on whichever category that person belongs to, i.e. whether the person is a Scheduled Caste, Scheduled Tribe, Other Backward Classes, or is a General Category candidate, the seat in that category would stand exhausted.

In Indra Sawhney the Supreme Court had elucidated that Horizontal reservations cut across the vertical reservations and persons selected against this quota will be placed in the appropriate category. "If he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments."

Similarly, Rule 11(4) of the 2017 Rules prescribes that reservation for persons with disabilities in accordance with the provisions of section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class.

In its counter affidavit, the UKPSC  submitted that their manner of working out horizontal reservation had been prescribed by the State of Uttarakhand. The Counter affidavit of State of Uttarakhand  stated that the impugned advertisement was issued in lieu of a government order dated 22.05.2020. The GO had stated that "if under horizontal reservation no eligible candidate is found fit for selection, the selection for the said post will be done as per norms of general selection except for the posts reserved for Divyang (Disabled Person)"

The Court opined that the manner in which the State had sought to apply horizontal reservations was legally unsustainable and the notification was accordingly quashed with liberty to come out with a fresh advertisement strictly in compliance with the law. 

Read the Court judgement embedded below:

J&K HC: Horizontal Reservation implementation requires a separate merit list of the such candidates.

Court:  Jammu and Kashmir High Court

Bench: Hon'ble Mr. Justice Sanjeev Kumar

Case No.: SWP No. 1746/2018

Case Title: Anil Sharma and others v. Chief General Manager, Human Resources Management, Reserve Bank of India and another

Date of Judgement: 19.03.2020

Brief of the Case:

Reserve Bank of India claimed that it had granted 8 Grace Marks to the petitioners seeking the benefit of horizontal reservation being from category of ex-servicemen and persons with disabilities. The court was of the view that the way the respondents have given effect to horizontal reservation provided to the category of ex-servicemen is not in consonance with law and amounts to denial of benefit of reservation provided for such category. The respondents by devising this novel way of operating horizontal reservation defeated the concept of horizontal reservation provided for certain categories like “person with disability” and “ex- servicemen”.  

The bench observed that granting grace marks without actual reservation to the candidates belonging to Handicapped or ex-servicemen category and then comparing there result with open category is not just and fair and not as per horizontal reservation provided by the law in consonance with the Constitutional Art 16(1). 

In   The court observed, "It goes without saying that in the instant selection, there were no minimum standards fixed by the respondents to qualify for selection and therefore, addition of 08 grace marks to the merit of the petitioners was totally inconsequential. It was totally absurd and illogical to compare the merit of the candidates belonging to ex-servicemen category with the merit of last selected in open merit. The whole procedure adopted by the respondents is de-hors the rules and settled position of law as enumerated in the case of Indira Sawhney and others Vs. Union of India, reported in 1992 Supp (3) SCC 210. The petitioners were entitled to the benefit of horizontal reservation and with a view to give effect to such reservation, it was incumbent upon the respondents to prepare a separate merit list of the candidates belong to the categories of EX-I and EX-2 and pick up one candidate with highest merit in the category of EX-I and four candidates in the order of merit from the category EX-2 and place them in the select list of their respective categories." 

Allowing the petition, the court directed the respondents to select and appoint the petitioners as Office Attendants in the Jammu Office of Reserve Bank of India by giving them the benefit of horizontal reservation meant for ex-servicemen. 

Read the order below:

Bombay HC: Can’t fix cut-off for filling up identified and reserved posts for persons with disabilities

Court: Bombay High Court

Bench: Justice NARESH H. PATIL AND Justice Z.A. HAQ, 

Case No: WRIT PETITION NO.1356 OF 2014

Case Title: Karanti Goyal Vs. Union of India & Ors.

Date of Judgement: 27 Sep 2017

Brief: 

A division bench of Bombay High Court consisting of Justice Naresh Patil and Justice ZA Haq has ruled that it was necessary to prepare a merit list of visually impaired people, and consider candidates from this list, without fixing benchmark or cut-off marks for filling up reserve seats for persons with disabilities. 

There cannot be any benchmark or cut-off for filing vacant posts earmarked for people with disabilities, said the  Bench. The court struck down the decision of the Union Ministry of Fnance to not appoint a visually impaired candidate to its economic and policy research department, as no one could cross the bench-mark fixed by it.

The bench said it was necessary for the department to prepare a separate merit list of visually impaired people, and consider candidates from this list according to merit, without fixing benchmark or cut-off marks. “In our view, once the post was identified and reserved for visually impaired person, then fixing cut-off marks for selection of the person for that post was impermissible,” observed the court. 

The bench was hearing a petition filed by Kranti Goyal, a visually impaired person, who had applied for the post of research officer in the Economic and Policy Research Department. He approached the high court after the department decided not to select any visually impaired candidates on the grounds that none of them could cross the cut-off of 210 of 350 marks in the written examination. The petitioner said the department had set the same benchmark for candidates from the general category and the visually impaired category – and merely granted 7% extra marks to visually impaired people.

The court held that by fixing cut-off marks for the visually impaired people on par with the general category candidates, the ministry and the department had acted arbitrarily and contrary to the object of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It said granting 7% grace marks was not a sustainable criteria.

The court has now directed the central department to prepare a separate merit list for visually impaired people and select a candidate from among them.

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Supreme Court examines the difference betwen the Vertical (social) and Horizontal (Special) Reservation under the constitution of India and the manner of its implementation.

Court: Supreme Court of India

Bench: K. G. Balakrishnan;  R. V. Raveendran and  Dalveer Bhandari, Justices

Case No. : CIVIL APPEAL No. 3132 of 2007

Case title: Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors

Date of Judgement:  18/07/2007

Cases refered: 

• Anil Kumar Gupta vs. State of U.P. [1995 (5) SCC 173]
• Indra Sawhney v. Union of India [1992 Supp.(3) SCC 217]

Reported as: Rajesh Kumar Daria Vs. Rajasthan Public Service, AIR 2007 SC 2137

Brief of the Case

A three Judges Bench examined the difference between vertical (social) reservation in favour of SC, ST and OBC and horizontal (special) reservation in favour of  women etc. and the manner in which this is to be applied.

The Rajasthan Public Service Commisison (RPSC) conducted an examination for posts of Munsiff - Magistrate, in the Rajasthan Judicial Service. The final section was challenged on the grounds that women candidates were selected in excess of their reservation quota, contrary to the Rules. It was contended that though the Rules provided for horizontal reservation of 20% for women categorywise, RPSC while preparing the selection list, had wrongly applied the principles of vertical reservation and had selected women in excess of the quota, thereby denying selection of the appellants and other male candidates. It was contended that they had secured higher marks than the selected women candidates and but for the excess selection of women candidates, they would have been selected. The appellants sought a declaration that the selection list dated 30.12.2001, was bad in law to the extent of excess selection of women candidates and for a consequential direction to fill those vacancies with male candidates. Th writ petitioners also sought a direction that they should be appointed if it was found that they had secured the necessary marks.

The Bench said that “where a vertical reservation is made in favour of a backward class under Article 16(4)[of the Constitution], the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category.”

However, the Bench clarified that the “aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. It said that “ where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of ‘Scheduled Castes-Women’. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes.”

The “women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women”, the Bench said.

Read the judgement below: