JUDGMENT B.S. Chauhan, J.
1. This Special Appeal has been filed against the judgment and order of the learned Single Judge dated 24/1/2008 by which the writ petition filed by the appellant claiming appointment in reserve category being physically handicapped has been dismissed on the ground of suitability as the appellant-petitioner secured only 44 marks out of maximum 120 marks in the Preliminary Examination.
2. The facts giving rise to this appeal are that this Court vide advertisement dated 31/5/2006 invited applications for 150 posts for direct recruitment on the post of Assistant Review Officer in its establishment. The reservation provided by the State Government for physically handicapped persons was given effect and the advertisement itself provided that five posts were reserved for physically handicapped candidates. Petitioner-appellant appeared in the examination, but secured only 44 marks out of 120 marks and could not qualify as the Selection Committee had prescribed 55 percent as qualifying marks. Being aggrieved, the petitioner-appellant filed the writ petition which was dismissed vide judgment and order dated 24/1/2008. Hence this appeal.
3. Shri Arun Kumar, learned Counsel for the appellant-petitioner has submitted that in view of the provisions contained in the "The U.P. Public Servants (Reservation for Physically Handicapped, Dependants of Freedom Fighters and Ex-servicemen) Act 1993 and the Disabilities (Equal opportunities Protection of Rights and Full Participation) Act, 1995 (hereinafter called the Acts, 1993 and 1995 respectively), the respondents were bound to consider the candidature of the appellant-petitioner in spite of his lower merit. It is submitted that the Selection Committee was not competent to prescribe any minimum percentage as qualifying marks, hence the appeal deserves to be allowed.
4. On the, contrary it is submitted by Shri Amlt Sthalekar, learned Counsel for the respondents that the judgment and order of the learned Single Judge does not require any interference whatsoever in view of the fact that the Selection Committee was competent to prescribe minimum qualifying marks and as the appellant miserably failed to secure the said qualifying marks, her claim for reservation has become meaningless. Had she qualified by securing minimum qualifying marks then her right for reservation would have been considered. Therefore, the appeal is liable to be dismissed. We have considered the rival submissions made by learned Counsel for the parties and perused the record.
5. So far as the issue of competence of the Selection Committee to prescribe minimum qualifying marks is concerned, it is no more res-integra. In State of U.P. and Ors. v. Rafiquddin and Ors. , the Hon'ble Supreme Court considered the issue at length and held that, the competitive examination is quite different from the examination conducted by the Universities and educational institutions. The purpose and object of competitive examination is to select more suitable candidates for appointment to public office. A person may obtain sufficient high marks and yet he may not be selected on account of the limited number of posts and availability of persons of higher quality. The authority concerned is competent to prescribe the minimum marks/benchmarks and for that purpose there is no legal requirement to give notice to the candidates. The said Judgment was approved and followed by the Apex Court in Mehmood Alam Tariq v. State of Rajasthan and Ors. AIR 1988 SC 1452. However, once the Selection Board/Committee/Commission prescribes the minimum qualifying marks and initiates the selection process, it cannot alter the same at any subsequent stage of the selection. ( Vide Maharastra SRTC v. Rajendrra Bhimrao Mandve ).
6. So far as the second question is concerned, admittedly, the appellant-petitioner secured only 36 percent marks though the minimum qualifying marks as prescribed by the authority was 55 percent. Appellant-petitioner claims that he was entitled to be considered further in view of the reservation prescribed for physically handicapped persons under the aforesaid Acts.
7. In Mahesh Gupta and Ors. v. Yashwant Kumar Ahirwar and Ors. , the Hon'ble Supreme Court considered the scope of application of the aforesaid Acts and held that State Authorities are under a legal obligation to provide reservation for the handicapped persons. It is necessary to give effect to the provisions of the said Acts as the Acts have been framed to fulfil the commitments assured by Union of India being signatory to various International Treaties in this regard. In that case reservation had not been provided for the physically handicapped candidates and the decision taken by the State Government for implementing the reservation policy in respect of physically handicapped persons had not been given effect to. The Hon'ble Apex Court therefore directed for implementation of the said policy by creating supernumerary posts.
8. Undisputedly, the Act of 1883 and 1995 provide for reservation in favour of the category to which the appellant belongs. However, the benefit of the statutory provisions of those Acts had to be given effect keeping in mind the provisions of Article 335 of the Constitution of India which specifically provides for maintenance of efficiency of Administration. The benefit of vertical reservation cannot be denied to Scheduled Castes, Scheduled Tribes and Other Backward Classes if it adversely affects the maintenance of efficiency of Administration. Reservation in educational institution and in employment can be provided under Article 15(1) or 16(1), or 16(4) of the Constitution of India. Both the said provisions enable the Competent Authority to provide for reservation, they are merely enabling provisions, while Article 335 is in mandatory language. (Vide Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Ors.; Indra Sawhney v. Union of India and Ors. ; Dr. Preeti Srivastava and Anr. v. State of Madhya Pradesh and Ors. and Indra Sawhney v. Union of India ).
9. A Constitution Bench of the Hon'ble Supreme Court in E. Chinnaiah v. State of Andhra Pradesh and Ors. , held as under:
Furthermore, the emphasis on efficient administration placed by Article 335 of the Constitution must also be considered when claims of Scheduled Castes and Scheduled Tribes to employment in the services of the Union are to be considered.
A Constitution Bench of the Apex Court in M. Nagraj and Ors. v. Union of India and Ors. , examined the validity of the Constitution (Seventy Seventh Amendment) Act, 1995; the Constitution (Eighty First Amendment) Act 2000; the Constitution (Eighty Second Amendment) Act 2000; and the Constitution (Eighty Fifth Amendment) Act 2001, providing for reservation to Scheduled Castes in promotions, which also provided for relaxation of qualifying marks etc. and held that constitutional limitation of efficiency under Article 335 can be relaxed but not obliterated. The Court observed as under:
If the appropriate government enacting a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation.... It is for the State concerned to decide in a given case, whether the overall efficiency of the system is affected by such relaxation. If the relaxation is so excessive that it ceases to be qualifying marks then certainly in a given case, as in the past, the State is free not to relax such standards. In other cases, the State may evolve a mechanism under which efficiency, equity and justice, all three variables could be accommodated.
10. Thus, only in exceptional cases, for compelling interest of the reserved category candidates, the State may relax the qualifying marks after identification by weighing the comparable data, without affecting general efficiency of service as mandated under Article 335 of the Constitution.
11. The judgment in Mahesh Gupta (supra) is not an authority on the issue as to whether an employer can compromise with the efficiency of administration to provide employment to the candidates of any reserved category in contravention of the mandate of Article 335 of the Constitution.
12. In view thereof, as the reservation is provided for physically handicapped persons, though horizontal in nature, he/she must secure minimum qualifying marks as fixed by the authority concerned. The appellant-petitioner who has failed to achieve the said benchmark as she secured 36 percent marks while qualifying marks had been fixed as 55 percent, would be denied further consideration in view of the provisions of Article 335 of the Constitution of India. It is not the case of the appellant-petitioner that any other physically handicapped person securing lesser marks than her, is being permitted consideration any further.
The Special Appeal lacks merit and is accordingly dismissed.