To understand the subject, we need to understand the Constitutional requirements of reservation i.e. how can a reservation be called as constitutionally valid one.
It is well advocated that “equality is among equals”, if we try to understand the meaning of the said phrase with an example, it means if there are two candidates for a particular general post and one of the candidates belongs to an untouchable community. In this case the candidate from untouchable community must have faced a lot of hardships to study and make himself eligible for the post then the other candidate. We can easily exam here that the two candidates are not equals, hence if we talk of equality in opportunity to both the candidates for the post, that will not be just and fair. To remove such callous from the society and to uplift the communities like untouchables, the Constitution of India contains provisions defining the conditions on which the Government can make laws for some extra opportunity to the supressed communities in the shape of reservation of particular number of seats for a post, in admissions to education institutions etc. If a reservation is made which is not as per the requirements explained in the Constitution of India, the reservation will not be valid reservation. To be a Constitutionally valid reservation, it needs to fulfil the constitutional requirements.
The topic says ‘Horizontal reservation’, let us understand how the horizontal reservation works with the help of another example: -Say you had 100 seats but a Horizontal Quota (HQ) group assigned 30% reservation. You first do one round of assignment. In Round 1 – instead of setting aside 70 seats you consider ALL 100 seats. Then you allocate from common merit list including HQ. Finish this process. Now take a long coffee break. Come back and look at the allocations. If there is a minimum of 30% HQ candidates in the final allocation. STOP THE PROCESS there is no need for Round 2. If there is a short fall, say only 20% HQ candidates against their quota of 30%, then start a new Round 2. In this Round 2: start by knocking out the last ranked non-HQ candidate and replacing by a HQ candidate until the 30% is met. The Round 2 process ends at exactly 30%.
Supreme Court in the case of Mahesh Gupta and Ors. Vs. Respondent: Yashwant Kumar Ahirwar and Ors pointed out that reservation afforded to persons with disabilities is different from that provided for persons from Schedule Caste and Scheduled Tribe. While one is horizontal, the other reservation is vertical. The State in terms of Article 16 of the Constitution of India may make two types of reservations vertical and horizontal. Article 16(4) provides for vertical reservation; whereas Clause (1) of Article 16 provides for horizontal reservation. A reasonable reservation within the meaning of Article 16 of the Constitution of India should not ordinarily exist, 50%, as has been held by this Court in Indra Sawhney v. Union of India1993, reservation for women or handicapped persons would not come within the purview thereof.
Article 16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
It is clear from the above judgement of the SC that reservation of the Handicapped and ex-servicemen comes under Horizontal reservation. Now the question arises when a person is not being categorized under Handicapped or Ex-servicemen category but he is a handicapped or Ex-servicemen, is he entitled to enjoy the benefits of reservation in any shape may it be Grace marks or seat quota.
In the case of N. Sudha Rajagopal vs Bharat Sanchar Nigam Limited on 8 December, 2009 The Central Administrative Tribunal directed to the respondents to arrange constitution of a Medical Board of any of the hospital recognized by them or any Government hospital and the applicant shall be present himself before the Board. The Medical Board shall examine the applicant and certify as to his locomotive condition. Decision of the respondents as to whether the applicant shall be treated as physically handicapped or not on the basis of such medical report, would be then taken by the respondents and further action as to affording the applicant the benefit of diluted standard/grace marks would be taken.
In this judgement the Tribunal made it clear that benefit of being handicapped is given if the medical report shows that the person is handicapped.
So, how a person in documentation is identified as a Handicapped, the person must possess the Disability Certificate.
Disability Certificate: It is the most basic document that a disabled person should possess in order to avail certain benefits and concessions. The State Medical Boards established under the State governments can issue a disability certificate to any person with more than 40% disability.
Who are Ex-servicemen?
In general Ex-ServiceMen means a person who has served in any rank(whether as a combatant or non -combatant) in the Armed forces of the Union, for a continuous period of not less than six months after attestation and has been released there from otherwise than by way of dismissal or discharge on account of misconduct or inefficiency.
To be identified in documentation as an Ex-Servicemen, one must get a certificate issues by Department of Ex–Servicemen Welfare, a department under the Ministry of Defence, which certifies the person as ex-servicemen.
Article 46 of the Constitution states that “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”
With the enactment of ‘The Rights of Persons with Disabilities Act, 2016’, reservation is also provided to Persons with Benchmark Disabilities against the posts and services of the Central Government at 4% of the total number of vacancies to be filled up by direct recruitment in the cadre strength in each group of posts.
As per Ex-servicemen (Re-employment in Central Services and Posts) Rules, 1979, as amended from time to time, 10% of the vacancies in the posts upto of the level of the Assistant Commandant in all para-military forces; (ii) 10% of the vacancies in Group C posts; and (iii) 20% of the vacancies in Group D posts, to be filled by direct recruitment shall be reserved for ex-servicemen.
These laws give horizontal reservation in consonance to the applicable candidates
In the case of Anil Sharma and others v. Chief General Manager, Human Resources Management and another the respondent has submitted that the petitioners and others claiming the benefit of horizontal reservation were granted 8 grace marks as per the Govt. of India instructions. The Learned High Court of Jammu and Kashmir considered the view that the way the respondents have given effect to horizontal reservation provided to the category of ex-servicemen is not in consonance with law and amounts to denial of benefit of reservation provided for such category. The respondents by devising this novel way of operating horizontal reservation defeated the concept of horizontal reservation provided for certain categories like “person with disability” and “ex- servicemen”. The court directed the responded to select the petitioner as per horizontal reservation. The Ld. Justice in the case has observed that ‘I have carefully gone through the selection record produced before me and could not find any statutory provision or even the executive order issued by the competent authority providing for addition of 08 grace marks to the merit of the candidates belonging to the categories of PWD and ex-servicemen and then comparing their merit with the merit of the candidate last selected in the open merit’. Hence the court is of the view that granting grace marks without actual reservation to the candidates belonging to Handicapped or ex-servicemen category and then comparing there result with open category is not just and fair and not as per horizontal reservation provided by the law in consonance with the Constitutional Art 16(1).
The reservation is given to make the under privileged get equitable opportunity to uplift from current status. The Constitution of India provides various kinds of reservations to the subject as Schedule Cast/Schedule Tribe/Women/Economically Backward Class/Other Backward Class and various other weak sections of the society and with the enactment of new laws to the Disabled and Ex-servicemen too as constitutional guarantees. Article 16(1) provides for horizontal reservation while Article 16(4) provides for vertical reservation. Now, as per the question is concerned that whether awarding of the grace marks without making actual reservation of posts for horizontal reservation for handicapped or ex-servicemen candidates fulfils the constitutional requirement or not. I am of the view that posts in various departments are subjected to qualification of the written exam as well as the oral interview sessions. In case of a Handicapped who cannot write to the speed of a normal candidate is not equal to the other candidates, and hence evaluating the marks for grace could be a very tricky and comparing the marks obtained then with the other candidates shall be unjust to the candidates who are handicapped and law provides equity to all, in such a case the basic principle of equity is violated. In case of an ex-servicemen who may not have any other source to earn his living, a younger candidate may seem more fit and suitable for the job, in such case also giving grace to the ex-servicemen and then comparing his marks with the other candidates violate the principle of equity. In both the cases the grace without actual reservation is not just and fair. Hence the answer stands clear that awarding grace without actual reservation as per the law do not fulfils the constitutional requirements. Again I will state the phrase “Equality among equals”, awarding some concession to an under privileged and comparing him to the privileged is comparing equals with unequal’s which is not just and fair and violative of the very basic principle of equity.
Constitution of India
Ex-servicemen (Re-employment in Central Services and Posts) Rules, 1979
The Rights of Persons with Disabilities Act, 2016
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