Sandeep Mehta, J. - (1.) HEARD learned counsel for the parties.
(2.) THE instant writ petitions have been preferred by the petitioners, assailing the action of the respondents in denying the petitioners, opportunity to be appointed on the post of Teacher Grade -III in the physically handicapped category and with a prayer for directing the respondents to provide appointment to the petitioners on the post of Teacher Grade -III (General), Post Code 22 with all consequential benefits against the seats reserved for physically handicapped persons in the selection process initiated under the advertisement Annex.1 dated 2.9.2008. The controversy raised in these writ petitions revolves around the claim of the petitioners for applying reservation in the category of persons with disabilities (loosely termed as handicapped quota) on vertical basis rather than the horizontal reservation, which was applied by the respondents during the selection process under challenge. The petitioners herein are differently abled persons. The respondents invited applications for filling up the vacancies of Teachers Grade -III vide advertisement dated 2.9.2008 (Annex.1). 11 posts were bifurcated and reserved for the category of physically disabled persons out of total available 369 posts. Further bifurcation was made from these 11 posts and 6 posts were reserved for the persons having low vision and remaining 5 posts were reserved for persons having other disabilities. The petitioners claim that they were armed with the requisite eligibility criterion and accordingly, they applied against the five posts reserved for persons with disabilities other than low vision quota. The result of examination was published by the respondents and the newspaper cutting of the result has been placed on record of the writ petition as Annex.3. It is asserted in the writ petition that, in addition to the publication of the result in the newspaper, a press note (Annex.4) was also released by the Commission on its official website mentioning that the cut off percentage of marks for physically handicapped persons was 95.88. The petitioner Kailashi Devi claims to have secured 114.92 marks whereas the petitioner Tosif Ahmed claims to have secured 127.84 marks in the examination. The petitioners have raised a grievance in the writ petitions that though the cut off marks for seats reserved for physically handicapped quota was only 95.88 and despite the fact that the petitioners secured much more than the cut off marks, yet they were denied appointment against the seats reserved for their category. The petitioners have further stated that 4 candidates in the physically handicapped other than low vision category, whose roll numbers and marks are reproduced herein below: - - secured more marks than the cut off for the general category candidates which was fixed at 140.08 and this would take them in the category of general candidates and hence, they ought to have been moved up and adjusted in general category and thereby 4 seats of physically challenged persons would have become available for recruitment to differently abled candidates having lesser marks and as a direct consequence thereof, the petitioners would stand a chance of gaining employment in the reserved category on the basis of the marks secured by them in the examination.
(3.) THE respondents have filed a reply to the writ petitions, wherein it is averred that the cut off marks, as reflected in the result, are only for the low vision category. The petitioners did not apply in this category. So far as physically disabled categories of locomotor disability and cerebral palsy are concerned, 5 posts were reserved for these categories and 4 of these posts were filled in by the candidates, roll numbers whereof have been mentioned by the petitioners in the writ petitions. The fifth candidate was also placed higher in merit as compared to the petitioners. It is asserted in the reply that only social reservation provided under Article 16(4) of the Constitution of India can be applied vertically. Reservation for all remaining categories has to be applied in a horizontal manner. Meaning thereby, even if a candidate belonging to a horizontal reservation category secures higher marks than the cut off for the general category, such candidate cannot be moved up to the general category and has to be provided appointment in his/her own category. On the basis of these submissions, the respondents have defended their stand in denying appointment to the petitioners as they secured fewer than the cut off marks for the category under which they applied for selection.;