2024 INSC 615 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5051 OF 2023

REKHA SHARMA APPELLANT(S)

VERSUS

THE RAJASTHAN HIGH COURT, JODHPUR

& ANR. RESPONDENT(S)

WITH

CIVIL APPEAL NO. 5052/2023

RATANLAL APPELLANT(S)

VERSUS

THE RAJASTHAN HIGH COURT, JODHPUR

& ANR. RESPONDENT(S)

J U D G M E N T

BELA M. TRIVEDI, J.

1.Both the appeals having common question of law and facts were

heard together and are being decided by this common judgment.

2.The facts in nutshell are that the respondent High Court had issued an

advertisement for the direct recruitment of 120 posts of Civil Judge and

Judicial Magistrate under the Civil Judge Cadre. The appellant-Ms.

Rekha Sharma, having 40% permanent disability in relation to her

eyes, had applied for the said post. The appellant-Ratan Lal having

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locomotor disability i.e. 55% permanent physical impairment in relation

to his right upper limb, had also applied for the said post. Both having

appeared in the Preliminary Examination were declared “not

successful.” As per the result declared on 11.01.2022, 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.

3.Being aggrieved by the said result, the appellant-Ratan Lal (in C.A.

No. 5052/2023) had preferred D.B. Civil Writ Petition No. 1436 of

2022, which came to be dismissed by the High Court vide the

judgment and order dated 02.03.2022. The appellant-Rekha Sharma

(in C.A. No. 5051/2023) had also filed D.B. Civil Writ Petition No. 1868

of 2022 which came to be dismissed by the High Court vide the order

dated 06.04.2022 relying upon the judgment dated 02.03.2022 passed

in Writ Petition No. 1436 of 2022.

4.The bone of contention raised by the learned counsels appearing for

both the appellants in the instant appeals is that the respondents while

declaring the result of Preliminary Examination showing the cut off

marks for each of the categories mentioned in the advertisement in

question, had not shown the cut off marks for the category of Persons

with benchmark disabilities. According to them, the said action of the

respondents was discriminatory and violative of their Fundamental

Rights enshrined in Article 14, 16 and 21 of the Constitution of India,

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and also violative of the Rajasthan Judicial Service Rules, 2010 read

with Rajasthan Rights of Persons with Disabilities Rules, 2018.

5.According to the learned Senior Counsel Ms. Pinky Anand appearing

for the respondents, the appellant-Rekha 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 further

submitted that the entire selection process was over on 30.08.2022

and the appointments of successful candidates have already been

made by the respondents on 09.03.2023. The fresh advertisement for

the vacancies of 2022-2024 was issued on 09.04.2024 and the result

of the Preliminary Examination in respect of the said advertisement

has also been declared on 15.07.2024.

6.Before dealing with the rival contentions raised by the learned

counsels for the parties, let us refer to the relevant paragraphs of the

advertisement dated 22.07.2021 in question.

“1. The Rajasthan High Court, Jodhpur under the Rajasthan Judicial Service

Rules, 2010 (As amended) is inviting online application in the prescribed

online format for direct recruitment on 120 vacant posts (89 posts of 2020

and 31 posts of 2021) of Civil Judge and Judicial Magistrate under the Civil

Judge Cadre on probation at the pay scale of 27700-770-33090-920-40450-

1080-44770.

2-3…………..

4.Number of Vacant Posts and Reservations: -

Total no.

of

vacancies

YearGeneral Reserved Persons

with

benchmar

k

3

disabilities

SC ST OBC EWS MBC

89 2020

(upto

Dec.

2020)

35 out of

which 10

posts for

women

out of 10

posts 02

posts

reserved

for widow

14 out of

which 04

posts for

women

out of 04

posts 01

post for

widow

10 out

of

which

03

posts

for

women

18 out

of

which

05

posts

for

women

out of

05

posts

01

post

for

widow

08 out

of

which

02

post

for

women

04 out

of

which

01

post

for

woman

Out of 89

vacancies

04 posts for

persons

with

benchmark

disabilities

31 2021

(upto

Dec.

2021)

14 out of

which 04

posts for

women

out of 4

posts 01

post

reserved

for widow

04 out of

which 01

post for

woman

03 06 out

of

which

01

post

for

woman

03 01 Out of 31

vacancies,

01 post for

persons

with

benchmark

disabilities

*Out of 05 posts reserved for persons with Benchmark Disabilities, 01

(one)post is reserved for blindness and low vision, 01 (one) for deaf and

hard of hearing, 01 (one) for locomotor disability including cerebral palsy,

leprosy cured, dwarfism, acid attack victim and muscular dystrophy and 02

(two) for autism, intellectual disability, specific learning disability and mental

illness and multiple disabilities from amongst persons under clause (a) to (d)

including deaf blindness in the posts identified for each disabilities.

5. In relation to reservation in various categories: -

i. The reservation in the reserved post for women (widow or divorcee) shall

be category wise horizontal in the vacant posts, which means that the

category (Scheduled Caste/Scheduled Tribes/Other Backward

Class/Extremely Backward Class/ Economically Weaker Sections/General

Category) of woman applicant selected will be adjusted in the same category

for which she filed application.

ii. The reservation for the handicapped shall be horizontal against the total

vacant posts, which means that category (Scheduled Caste/Scheduled

Tribes/Other Backward Class/ Extremely Backward Class/ Economically

Weaker Sections/General Category) of handicapped applicant selected will

be adjusted in the same category for which he filed application.

iii. In case candidates for Scheduled Caste/Scheduled Tribes/Other

Backward Class/ Extremely Backward Class/ Economically Weaker

Sections/Women (Widow or divorcee)/handicapped of Rajasthan State is not

available then these posts shall be filed as per the procedure and customs of

the Rajasthan Judicial Service Rules, 2010.

iv. For selection to the post of general category, the candidates of reserved

category should be eligible like the candidates of general category.

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6-14 ----------

15. Scheme & Syllabus of Examination: -

(1) The competitive examination for the recruitment to the post of Civil Judge

shall be conducted in two stages, i.e., Preliminary Examination and Main

Examination. The marks obtained in the Preliminary Examination by the

candidate who are declared qualified for admission to the Main Examination

will not be counted for determining final merit.

(2) The number of candidate to be admitted to the Main Examination will be

fifteen times the total number of vacancies (category-wise) but in the said

range all those candidates who secure the same percentage of marks on the

last cut-off will be admitted to the main examination.

Note: - To qualify for Main Examination, the candidates of SC/ST category

shall have to secure minimum 40% marks and candidates of all other

categories shall have to secure 45% minimum marks in the Preliminary

Examination.

(3) The number of candidates to be admitted to the interview shall be, as far

as practicable three times the total number of vacancies category-wise.

Provided that to qualify for interview, a candidate shall have to secure a

minimum of 35% marks in each of the law papers and 40% marks in

aggregate in the Main Examination.

Provided further that a candidate belonging to Scheduled Caste or

Scheduled Tribe category, shall be deemed to be eligible for interview, if he

has obtained minimum of 30% marks in each of the law papers and 35%

marks in the aggregate in the Main Examination.

(4) It shall be compulsory to appear, in each and every paper of written test,

as also before the lnterview Board for viva voce. A candidate, who has failed

to appear in any of the written paper or before the board for viva voce shall

not be recommended for appointment.

(5) The examination scheme for recruitment to the cadre of Civil Judge shall

consist of :

l. Preliminary Examination (Objective Type)

ll. Main Examination (Subjective Type)

lll. Interview……”

7.As per the notice dated 11.01.2022 declaring the result of the

Preliminary Examination held on 28.11.2021, the respondents had

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mentioned the following cut off marks for the respective categories

mentioned in the advertisement.

Cut-off Marks

Category Cut Off

Marks

General 72

General (Divorcee) 58

General (Widow) 45

SC 55

SC (Divorcee) 39

ST 53

OBC-NCL 67

OBC-NCL

(Divorcee)

63

OBC-NCL (Widow) 46

MBC-NCL 46

EWS 69

8.Though the Learned Counsels for the appellants have strenuously

urged that it was incumbent on part of the respondents to show the cut

off marks for the category of Persons with benchmark disabilities,

particularly when the cut off marks for each of the categories

mentioned in the advertisement in question were shown, it is difficult to

accept the said submissions. Apart from the fact that the appellants

having participated in the Selection Process in respect of the

advertisement in question and having failed to succeed in the

Preliminary Examination, had filed the writ petitions in the High Court,

the appellants have also failed to substantiate their contention that it

was incumbent on part of the respondents to fix the cut off marks for

the category of Persons with benchmark disabilities. As could be seen

from the advertisement itself, the reservation in favour of the Persons

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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.

9.It is quite well settled that the Horizontal Reservation is of two types: -

(i) Compartmentalised Horizontal Reservation, and (ii) Overall

Horizontal Reservation. The Compartmentalised Horizontal

Reservation is such wherein the proportionate vacancies are reserved

in each vertical reserved category. However, in case of Overall

Horizontal Reservation, the Reservation is provided on the total post

advertised i.e. such reservation is not specific to each vertical

category. As per the advertisement dated 22.07.2021, the vacancies in

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

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had to qualify for the Mains Examination by securing minimum cut off

marks fixed for the concerned category in which he/she had applied.

10.Apart from the fact that there was nothing provided in the

advertisement for the fixation of cut off marks for the Persons with

benchmark disabilities, who fall under the Overall Horizontal

Reservation, the learned counsels for the appellant have also failed to

point out from the Rajasthan Judicial Services Rules, 2010 under

which the recruitment process was undertaken, that such fixation of

cut off marks for the Persons with benchmark disabilities was

mandatory. The reliance placed by the learned counsels for the

appellants on the notification dated 14.10.2021 issued by the

Rajasthan Government is also not helpful to them in as much as the

said notification was given effect to, in the notification dated

16.04.2024 amending the RJS Rules, 2010, providing relaxation in age

and concession of 5% in marks in favour of Persons with benchmark

disabilities. None of the said notifications or amendment in the RJS

Rules, 2010 make it mandatory on part of the respondents to declare

separate cut off marks for the Persons with benchmark disabilities.

11.It cannot be gainsaid that the Right of Persons with Disabilities Act of

2016 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

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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.

12.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 the case of Indra

Sawhney & Others vs. Union of India and Others

1

the concept of

“Vertical Reservations” and “Horizontal Reservations” has been aptly

explained. The relevant paragraph 812 thereof reads as under: -

“812. We are also of the opinion that this rule of 50% applies

only to reservations in favour of backward classes made under

Article 16(4). A little clarification is in order at this juncture: all

reservations are not of the same nature. There are two types of

reservations, which may, for the sake of convenience, be

referred to as ‘vertical reservations’ and ‘horizontal

reservations’. The reservations in favour of Scheduled Castes,

Scheduled Tribes and other backward classes under Article

16(4) may be called vertical reservations whereas reservations

in favour of physically handicapped under clause (1) of Article

16 can be referred to as horizontal reservations. Horizontal

reservations cut across the vertical reservations — what is

called interlocking reservations. To be more precise, suppose

3% of the vacancies are reserved in favour of physically

handicapped persons; this would be a reservation relatable to

clause (1) of Article 16. The persons selected against this quota

will be placed in the appropriate category; if he belongs to SC

category he will be placed in that quota by making necessary

adjustments; similarly, if he belongs to open competition (OC)

category, he will be placed in that category by making

necessary adjustments. Even after providing for these

horizontal reservations, the percentage of reservations in favour

of backward class of citizens remains — and should remain —

1 1992 Supp. (3) SCC 217

9

the same. This is how these reservations are worked out in

several States and there is no reason not to continue that

procedure.”

13. Thus, in view of the said clarification made in Indra Sawhney, 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.

14.The concept of Overall Reservations and Compartmentalised

Reservations is also aptly explained by this Court in Anil Kumar

Gupta and Others vs. State of U.P. and Others

2

. It has been

observed therein that where the seats reserved for the Horizontal

Reservations are proportionately divided amongst the Vertical (Social)

Reservations and are not intertransferable, it would be a case of

Compartmentalised Reservations, whereas in the Overall Reservation,

while allocating the special reservation candidates to their respective

social reservation category, the Overall Reservation in favour of

special reservation categories has to be honoured. Meaning thereby

the special reservations cannot be proportionately divided among the

Vertical (Social) reservation categories, and the candidates eligible for

2 (1995) 5 SCC 173

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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.

15. 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. The Persons with benchmark disabilities for

being adjusted in the category for which he or she had applied, had to

secure the minimum cut off marks fixed for such category under which

he or she had applied. 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.

16. As well settled, 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 appellants after they having found that their names

do not appear in the list of successful candidates of Preliminary

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Examination, could not have questioned the result on the ground that

the respondents had not declared the cut off marks for the Persons

with benchmark disabilities. As stated earlier, 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.

17.In that view of the matter, we do not find any illegality or infirmity in the

impugned judgements and orders passed by the High Court. Both the

appeals are dismissed accordingly.

..……..…..................................J.

[BELA M. TRIVEDI]

..………..

…..................................J.

[SATISH CHANDRA SHARMA]

NEW DELHI;

AUGUST 21, 2024

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