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Nearly two years after the final result was declared in December 2017, the Delhi High Court yesterday directed the appointment of a candidate to the Delhi Higher Judicial Services with all consequential benefits, except back wages.
In spite of being at serial number 3 in the General category merit list, candidate Manish Sharma had failed to secure a place in the Delhi Higher Judicial Services after the third vacancy was allotted to a physically handicapped candidate.
While instating Sharma, the Court decided to leave the appointment of the physically handicapped candidate (respondent 3) undisturbed.
The judgment was passed by a Single Judge Bench of Justice Rekha Palli in a writ petition preferred by Sharma.
It was the petitioner’s grievance that despite placing third in the merit list of General candidates in the Delhi Higher Judicial Services Examination 2015, he was not appointed.
This was so because out of the three seats for General category students, one vacancy was allotted to respondent 3.
The advertisement dated December 23, 2015 invited applications from interested candidates to fill 9 vacancies in the Delhi Higher Judicial Services. 3 out of these 9 vacancies were reserved for candidates belonging to the General category, 2 vacancies were reserved for the Scheduled Caste category and the remaining 4 vacancies were reserved for the Scheduled Tribe category.
The advertisement also stated that out of the 9 vacancies, 01 vacancy was reserved for physically handicapped persons.
Before the High Court, the petitioner argued that the third General vacancy was erroneously allotted to respondent 3, even though the latter had scored only 49.20% marks in the main examination, which was below the minimum requirement of 50% marks for a General category candidate.
It was further contended that the Rights of Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 merely provided for reservation for physically handicapped candidates, but did not provide for granting any relaxation to them in terms of the minimum qualifying marks.
The petitioner also stated that that High Court could not have allotted any vacancy to Respondent 3 without first preparing a roster and calculating the total number of vacancies required to be reserved for persons with disabilities.
Since the selection process had taken almost two years for completion, the petitioner pleaded that one of the many unfilled vacancies from the Scheduled Tribe category be filled by successful candidates of the General category.
The Delhi High Court, on the other hand, argued that the reservation available to a physically handicapped candidate was in the nature of a horizontal reservation. Therefore, the third General category vacancy had to necessarily be given to Respondent 3, who was the most meritorious amongst the physically handicapped candidates and belonged to the General category.
It was further argued that having participated in the selection process without any objection to the provision for relaxation extended to the reserved category candidates, the petitioner was now estopped from challenging the said relaxation.
After hearing the parties at length, the Bench opined that it was unable to accept the petitioner’s argument that no vacancy could have been allotted to a physically handicapped candidate without first preparing a roster point.
Acknowledging that the reservation for physically handicapped candidates was in the nature of a horizontal reservation, it was but obvious that at the time of issuing the advertisement, the High Court could not have anticipated the category from which the vacancy for the physically handicapped candidates would have to be adjusted, the Court observed.
The Court, nonetheless, accepted the petitioner’s contention with respect to the erroneous relaxation of minimum marks.
Though reservation for physically handicapped candidates was statutorily introduced by the PWD Act on insertion of Section 33, the High Court had not extended the said reservation to physically handicapped candidates in the Delhi Higher Judicial Services till as late as in the year 2013, the Court added.
The Court thus concluded that there was no legal basis for drawing an inference that physically handicapped candidates were always treated as reserved category candidates and that Respondent 3 ought to be treated at par with those candidates belonging to the Scheduled Castes and Scheduled Tribes categories, who were granted relaxation in the minimum qualifying marks for the written examination.
Further drawing a distinction between grant of reservation viz. grant of relaxation, the Court stated,
“…both these aspects lie in separate domains. While reservation for physically handicapped candidates is statutorily mandated under the PWD Act, grant of any relaxation to such candidates would be for the employer to examine after taking into consideration the nature of duties required to be discharged on the post as also the number of candidates from the said category who may be found to be eligible for the said post.”
In view of the above, the Court held that since Respondent 3 failed to fulfil the mandatory requirement of securing 50% minimum qualifying marks in the written examination as prescribed by the High Court for candidates belonging to the General category, his appointment to the DHJS stood vitiated.
The Court, however, remarked that if the appointment of Respondent 3 was struck down “at this belated stage”, especially when the predicament is not of his making, it would fail in its “duty of dispensing substantial and complete justice to the parties”.
“Here is a case where pursuant to his selection in the DHJSE 2015, the respondent no.3, a physically handicapped candidate, has been sincerely and efficiently discharging his duties on the post of an Additional District Judge for the past almost two years. Respondent no.2, the employer, has no complaint against him and is satisfied with his work performance. In these circumstances, would it be appropriate to quash his appointment? We have given our thoughtful consideration to this knotty problem and are of the view that it will be a travesty of justice if the appointment of the respondent no.3 is quashed .”
Therefore, in the interest of doing complete and substantial justice, while granting relief to the petitioner, the Court ordered that the appointment of Respondent 3 shall remain undisturbed.
Since the vacancies reserved for Scheduled Tribe candidates had remained unfilled for many years, the Court directed that, as a purely temporary measure, instead of creating a supernumerary vacancy, Respondent 3 shall be adjusted against an unfilled vacancy reserved for Scheduled Tribe candidates.
With respect to the petitioner, the Court ordered for his appointment against the third General category vacancy as advertised in 2015, with all consequential benefits, except back wages.
The petitioner was represented by Senior Advocate Ravi Kant Chadha with advocates Sanjeev Sharma, Mansi Chadha, Sameer Rohtagi, Siddhant Chaudhary and Akshit Kumar.
The High Court was represented by Advocates Viraj Datar, Nitish Chaudhary, and Meenal Duggal.
Read the Judgment: