Veerendra Singh Siradhana, J. - (1.) THE matter has been taken up for final disposal with the consent of the learned counsel for the parties, at this stage.
(2.) THE petitioner, though is visually handicapped person (blind), has acquired the qualification of Master of Arts (Psychology), with first position in the University of Rajasthan, in the examination held in the year 2001. He has also qualified the National Educational Test - Eligibility for Lectureship (NET), conducted by the University Grants Commission and was pursuing his study for Doctorate Course (Ph.D.) in Psychology while he participated in the selection process under challenge. An advertisement was issued by the Rajasthan Public Service Commission (hereinafter referred to as 'RPSC', for short) dated 6th April, 2003, inviting applications from the eligible candidates for participation in the Rajasthan State & Subordinate Services Combined Competitive Examination under the Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1999 (hereinafter referred to as the 'Rules of 1999', for short). The petitioner being eligible in all respects, submitted his candidature for consideration in the recruitment process aforesaid. Out of total 493 vacancies notified, 188 vacancies were for State Services and 305 for Subordinate Services. Reservation for of various categories under the rules including one for handicapped persons, was also spelt out in the advertisement notifying the vacancies. The petitioner participated in the selection process and appeared in the preliminary examination held on 12th October, 2003. The result of the preliminary examination was declared on 7th December, 2003, with cut off marks for various eight categories. In the result declared, no separate category for 'handicapped persons', was detailed out separately with cut off marks as in the case of other eight categories. No minimum qualifying marks were fixed by the RPSC, but the candidates were declared successful in the ratio 1:15. Thus, against five vacancies reserved for visually handicapped persons (one for State Services and four for Subordinate Services), 75 candidates ought to have been declared successful in a separate category indicating the cut off marks. Since the respondent Commission did not adopt the criteria of declaring successful candidates in the physically handicapped category in the ratio 1:15 and also did not indicate them in a separate category with cut off marks, therefore, the action has been assailed to be illegal, arbitrary and violative of mandate of Article 14, 16, 38(2), 41 and 48 of the Constitution of India. In the response to the notice of the writ application, the respondent - RPSC has filed it's counter -affidavit, raising preliminary objections as to the very maintainability of the writ application, as the petitioner after having participated in the selection process and having been declared unsuccessful, is precluded from challenging the selection process and the criteria prescribed. It is further pointed out that the issue raised in the writ application, is no more res -integra in view of opinion of a Coordinate Bench of this Court in S.B. Civil Writ Petition Number 384 of 2004 (Prakash Chand v. State of Rajasthan & Anr.) and S.B. Civil Writ Petition Number 830 of 2004 (Himanshu Kachhwaha v. R.P.S.C., Ajmer), raising the same issue with reference to preparation of separate merit list for physically handicapped persons, in the Rajasthan Administrative Services Preliminary Examination, 2003; which were preferred before the Principal Bench of this High Court and have been dismissed vide judgment and order dated 16th March, 2004. It is also stated that the reservation provided to the Physically Handicapped Category is horizontal in nature and the horizontal reservations cut across the vertical reservations. Thus, the candidates of the Physically Handicapped Category would be adjusted in their respective categories and no separate merit list is required to be drawn. In the selection process involved, the RPSC received about 2,67,500 application forms including the application form of the petitioner. Nearly, 2.65 lacs of the applicants were provisionally allowed to participate in the preliminary examination held on 12th October, 2003. The result of the examination was declared on 7th December, 2003. In accordance with the mandate of Rule 15 and 17 of the Rules of 1999; 47 physically candidates were declared successful along with others. Since the petitioner could not secure the minimum cut off 280 or more marks in the general category (male), therefore, he was not declared qualified to participate in the main examination. Referring to the opinion of the Hon'ble Supreme Court in the case of Indira Sawhney v. Union of India:, (1992) Suppl. (3) SCC 215, it has been pleaded that reservation in favour of Scheduled Caste, Scheduled Tribe and Other Backward Classes under Article 16(4) of the Constitution may be called as vertical reservations. The reservations in favour of physically handicapped persons under Article 16(1) of the Constitution may be referred to as "horizontal reservations", which cuts across the vertical reservations. 3% of the vacancies reserved for physically handicapped persons are relatable to Article 16(1) of the Constitution and the successful candidates belonging to physically handicapped category are to be placed in the relevant category to which they belong i.e. Scheduled Caste, Scheduled Tribe, Other Backward Classes and General, as the case may be, by making necessary adjustments. Therefore, it was prayed that the action of the respondent - RPSC cannot be faulted and the writ application merits rejection.
(3.) THE learned counsel for the petitioner reiterating the pleaded facts insistingly argued that the action of the respondent RPSC in not declaring the result of handicapped persons, who participated in the selection process, in a separate category indicating cut off marks, as was done in the case of other eight categories; is illegal, arbitrary and violative of the fundamental rights of the petitioner as well as contrary to the mandate of the Rules of 1999 as well as Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 'Act of 1995', for short) and Rules made thereunder i.e. Rajasthan Employment of Persons with Disabilities Rules, 2000 (hereinafter referred to as the 'Rules of 2000', for short).;