Full Text
HIGH COURT OF DELHI
JUDGMENT
RAHUL KUMAR UPADHYAY..... Petitioner
Through: Mr. Rajan Mani, Mr. Vivek Kumar Gaurav and Mr. Shubham Prajapati, Advs.
Through: Ms. Ruchira Gupta and Ms. Akanksha Sisodia, Advs. for respondent /NBE
1. The present petition has been filed by the petitioner with the following prayers: - “In view of the above facts and circumstances, it is therefore most humbly prayed that this Hon‟ble Court may kindly be pleased to:i) Issue a writ in the nature of mandamus or any other appropriate writ/s, order/s, direction/s, directing the Respondent to set aside/quash the new advertisement 2021:DHC:3881 published by the NBE dated 01.06.2021as mentioned in para 16 of this petition. ii) Issue a writ in the nature of mandamus or any other appropriate writ/s, order/s, direction/s, directing the Respondent to declare cutoff marks for PWD categories and allow the present petitioner to sit for 2nd stage of Exam as per the mandate of the law. iii) Pass any other order/s or direction/s as this Hon‟ble Court deems fit and proper be also awarded to the Petitioner and against the Respondents in the interest of justice.”
2. The respondent in the present writ petition is the National Board of Examination (‘NBE’, for short). The counter affidavit filed by Ms. Ruchira Gupta learned counsel appearing on behalf of the respondent, reads that vide resolution dated July 07, 2021, the name of the respondent has been changed from NBE to National Board of Examinations in Medical Sciences (‘NBEMS’, for short) which is an autonomous body under the Ministry of Health and Family Welfare. Wherever a reference has been made to NBE it shall be read to mean NBEMS.
3. Now coming to the issue at hand, it is the case of the petitioner that he belongs to the category of Persons with Disabilities (‘PwD’, for short) having 42% post-polio residual paralysis in his lower limb. He appeared for the exam for recruitment in NBE.
4. That the petitioner has applied for the post of Senior Assistant vide advertisement No. 21005/RECT/2020 published by NBE dated July 11, 2020. Thereafter, he appeared for the preliminary examination on the date of August 31, 2020. That through the above-mentioned advertisement the following seats were reserved as per the Central Government Reservation Policy namely: -
┌────────────────────────────────────────────────────────────────────────────────┐ │
┌───────────────────────────────────────────────────────────────────────────────────────┐ │ Category-wise bifurcation of Posts: - │ │
┌─────────────────────────────────────────────────────────────────────────────────┐ │ Sl. No. Name of Post Pay No. of Eligibility │ │ Matrix Post conditions │ │ Level (s) │ ├─────────────────────────────────────────────────────────────────────────────────┤ │ 1. SENIOR Level 7 8 Age: Below 27 │ │ ASSISTANT Years. │ │ Educational │ │ Qualifications │ │ ESSENTIAL │ │ 1. Degree from │ │ recognised │ │ University/ Board. │ │ 2. To qualify │ │ Examination as │ │ may be │ │ prescribed by │ │ NBE. │ │ 2. JUNIOR Level 2 30 Age: Below 27 │ │ ASSISTANT Years. │ │ Educational │ │ Qualifications │ │ ESSENTIAL │ │ 1. passed Senior │ │ Secondary │ │ Examination │ │ from a recognised │ │ Board/ University │ │ recognised by │ │ Central/State │ │ Govt /UT │ │ Administration / │ │ Education │ │ Authority' │ │ 2. Proficiency in │ │ use of Computers │ │ and │ │ Basic Software │ │ Packages such as │ │ Windows/Network │ │ W.P.(C) 6764/2021 Page 22 of 31 │ │ 2021:DHC:3881 │ │ Operating │ │ System/LAN │ │ Architecture. │ │ 3. To qualify │ │ Examination as │ │ may be │ │ prescribed NBE. │ │ 3. JUNIOR Level 4 4 Age: Below 27 │ │ ACCOUNTANT Years. │ │ Educational │ │ Qualifications │ │ ESSENTIAL │ │ 1. Bachelor │ │ Degree with │ │ Maths or Statics │ │ or a Degree in │ │ Commerce from a │ │ recognise │ │ University. │ │ 2.To qualify │ │ Examination as │ │ may be prescribed │ │ by NBE. │ │ DESIRABLE │ │ QUALIFICATION │ │ 1. Three Years' │ │ experience in │ │ dealing with │ │ Accounts in some │ │ Govt. institutions │ │ with knowledge of │ │ computer based │ │ accountin. │ │ Note: - │ └─────────────────────────────────────────────────────────────────────────────────┘
10. Thus, only in exceptional cases, for compelling interest of the reserved category candidates, the State may relax the qualifying marks after identification by weighing the comparable data, without affecting general efficiency of service as mandated under Article 335 of the Constitution.
12. In view thereof, as the reservation is provided for physically handicapped persons, though horizontal in nature, he/she must secure minimum qualifying marks as fixed by the authority concerned. The appellant-petitioner who has failed to achieve the said benchmark as she secured 36 percent marks while qualifying marks had been fixed as 55 percent, would be denied further consideration in view of the provisions of Article 335 of the Constitution of India. It is not the case of the appellant-petitioner that any other physically handicapped person securing lesser marks than her, is being permitted consideration any further. (emphasis supplied) The Special Appeal lacks merit and is accordingly dismissed.
39. In the light of the aforesaid authoritative judicial pronouncements, we have no hesitation in accepting the submission made by Mr.Chadha, Senior Advocate appearing for the petitioner that in the present case, relaxation in the minimum qualifying marks for the written examination was granted to the respondent no.3 without any application of mind and without the respondent no.2 conducting any deliberations prior to the issuance of the advertisement. Therefore, there was no occasion for the respondent no.2 to extend relaxation to physically handicapped candidates belonging to the General category, that too when the scope of the unamended Rule 22, did not encompass physically handicapped candidates under reserved category.” (emphasis supplied)
39. In the case in hand, there are no qualifying marks fixed by the respondent in the first stage of the selection process, under the advertisement of July 11, 2020, but the cut-off marks were fixed on the basis of principle, against one vacancy five candidates on the basis of marks shall be called for the Second Stage, e.g., as against 11 vacancies, 55 candidates were called for General category vacancies and the last candidate called had secured 165.50 marks which became the cut-off for General category. The submission of Mr. Mani is that the petitioner has got a good score of 116.50/200 and the respondent had intentionally ignored the petitioner against the mandate of law. I am afraid the said submission of Mr. Mani is unmerited, as the plea, if accepted, would mean, there has to be further relaxation of the cut-off marks, including the zone of consideration contrary to the principle followed and moreover, the horizontal reservation does not encompass persons with disability are entitled to the benefit of vertical reservation, which in effect is the submission of Mr. Mani.
40. Mr. Mani in support of his submission has relied upon the judgment in the case of Saurav Yadav (supra). The facts, which arise for consideration before the Supreme Court was that pursuant to the Supreme Court’s order dated July 24, 2019, selection to the 3295 posts in accordance with merit and consistent with the reservation policy of the Government was undertaken by the Uttar Pradesh Government. According to the results declared on November 11, 2019, 188 posts in the „General Female Category‟ were filled up. While doing so, the claim of „OBC Female Candidates‟ was not considered or taken into account. The last candidate appointed in the category of „General Female‟ had secured 274.8298 marks. 21 OBC applicants who secured marks greater than the candidate with 274.8298 challenged the action on part of the State Government in refusing to consider the claim of „OBC Female Category‟ candidates in respect of „General Female Category‟ seats. The Apex Court in the said judgment held that „Open category is open to all‟ and „any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates will certainly be opposed to principles of equality‟. The aforesaid judgment has no application for the issue, which arises for consideration in this petition. I must also state, during his submission, Mr. Mani has also relied upon the judgment of the High Court of Gujarat in Tamannaben Ashokbhai Desai (supra) wherein the Supreme Court in Saurav Yadav (supra) has in paragraph 43 held as under:- “43. Finally, we must say that the steps indicated by the High Court of Gujarat in para 69 of its judgment in Tamannaben Ashokbhai Desai [Tamannaben Ashokbhai Desai v. Shital Amrutlal Nishar, 2020 SCC OnLine Guj 2592] contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The illustration given by us deals with only one possible dimension. There could be multiple such possibilities. Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No. 64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open/General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the waiting list for Scheduled Tribes-Female. The steps indicated by the Gujarat High Court will take care of every such possibility. It is true that the exercise of laying down a procedure must necessarily be left to the authorities concerned but we may observe that one set out in said judgment will certainly satisfy all claims and will not lead to any incongruity as highlighted by us in the preceding paragraphs.”
41. From the above, it is clear that in Tamannaben Ashokbhai Desai (supra), the Gujarat High Court in paragraph 69 had contemplated the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservation. The Supreme Court has said that the candidate allocated in the vertical column for ST may have secured a higher position than the candidate at Sl. No. 64, in that event, said candidates must be shifted from the category of ST to Open / General category causing resultant vacancy in the vertical column of ST. Such vacancy then enures to the benefit of the candidate in the waiting list of ST females. The aforesaid also demonstrate that the said judgment does not deal with the issue, which falls for consideration in this case. As stated above, the issue urged by Mr. Mani has been settled by the Division Bench of the Allahabad High Court in Neetu Devi Singh (supra) and also followed by the Division Bench in the case of Manish Sharma (supra). The petitioner is not entitled to relaxation in cut-off marks till 116.50 marks.
42. I do not see any merit in the petition. The same is dismissed. No costs. CM. No. 21302/2021 (for Stay) Dismissed as infructuous.
V. KAMESWAR RAO, J