This present application is filed for seeking a direction to the respondent GPSC to allow the applicant-petitioner to participate in the main written examination scheduled on 24.11.2019 which was originally not allowed. GPSC was sued for discrimination based on reservation.
Facts of the Case
It is the case of the applicant that the entire allotment of cut-off marks to the category of the Physical Handicap Category (PHC), who belong to the vertical reservation, is illegal and the candidates having similar disabilities cannot be discriminated by providing different cut-off marks on the basis of horizontal reservation. Vertical Reservation and Horizontal Reservation is described here. Learned advocate Mr Vaibhav Vyas appearing for the applicant has submitted that the applicant belongs to SEBC (male) category and he is having 40% disabilities and other candidates, who might be suffering from the same disabilities are categorized on the basis of their reservation which is illegal. He has further submitted that the Respondent GPSC cannot further classify the category of the candidates of PHC by allocating different cut- off marks.
It was submitted that as per the provision of the Persons with the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the State authority is required to reserve 4% vacancies for PHC, and further it is not open for the Respondent GPSC to classify such candidates on the basis of the cut-off marks on their reserved category. The advocate further submitted that the recruitment carried out under the other Civil Services Examination by the Central Government, does not provide such criteria and PHC candidates are bifurcated by their disabilities of hearing, low vision and locomotor. He has placed reliance on the order dated 15.05.2019 passed in Special Civil Application No. 9292 of 2019 in support of his submissions and has submitted that in the similar issue, this Court has permitted the candidate to appear in the main examination.
On the other hand counsel for the respondent has submitted that the applicant has not raised any such contention in his writ petition and she is unable to meet with the same. She has submitted that the Commission has adopted a uniform policy of providing 10% relaxation to all the PHC, and since the petitioner has not secured the minimum cut-off marks, he cannot be permitted to appear in the main examination. The action of stipulating the cut-off marks to the candidates of PHC on the basis of their reserved category, but no satisfactory explanation was tendered. All the candidates belong to the vertical reservation and are further categorized on the basis of cut-off marks. Different cut-off marks are provided to the candidates belonging to various reserved category. A perusal of the order dated 30.08.2019 reveals that the candidates from Serial No.5 from SEBC to Serial No.10 ST male have been provided with the cut-off marks though they belong to the same category i.e. Physical Handicap.
Learned advocate for the respondent was unable to point out from the advertisement or any other provision of law, which permits them to allot different cut-off marks to the candidates of PHC belonging to various reserved categories. Under the circumstances, since the learned advocate for the Respondent GPSC is unable to justify their action of aforesaid fixation of cut-off marks, this Court is of the considered opinion that the present applicant cannot be debarred from participating in the main examination, which is scheduled to be held on 24.11.2019.
The Respondent then placed reliance on the judgment and order dated 24.02.2019 passed in Special Civil Application No. 91 of 2019 will not rescue the respondent since in the said writ petition, the petitioner belonged to general category, who was challenging 10% deduction from the cut-off marks, whereas in the present writ petition the applicant belongs to reserve category and is questioning the fixation of cut-off marks by the respondent-GPSC. It appears that in an analogous situation the Coordinate Bench of this Court passed in Special Civil Application No.9292 of 2019, has allowed the PHC candidate to participate in the main examination though he had obtained fewer marks than the cut-off marks and direct the GPSC to permit him to appear in the main examination. It was further clarified that by virtue of the interim order, the permission to appear in the main examination shall not create any equity in his favour.
The aforesaid reliance placed on the judgment and order dated 28.03.2013 will not apply in the case of the present applicant since in the case before the Division Bench, the issue was concerning of providing minimum cut-off marks to the candidates belonging horizontal reservation, whereas, in the present case, the Commission has applied different cut-off marks to the candidates belonging to vertical reservation vis-a-vis to the candidates belonging to horizontal.
Order of the Court
The present application is allowed and the respondent-GPSC is hereby directed, to permit the applicant to appear in the main examination, which is scheduled to be held on 24.11.2019. It is further clarified that such permission to appear in the main examination shall not create any equity in the favour of the applicant-petitioner. It is clarified that the result of the applicant-petitioner shall be kept in a sealed cover.[googlepdf url=”https://libertatem.in/wp-content/uploads/2019/11/CA12019_GJHC240596712019_4_22112019.pdf” download=”Download Judgement PDF” width=”100%” height=”900″]
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