PATEL SUNILKUMAR MANUBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present petition is filed in the background that there were certain posts which were required to be filled in from the candidates belonging to the category of physically Handicapped. The respondents have joined the issue and have stated that as provided by the Statute they have enrolled the candidates belonging to Physically handicapped Category. They have filled in 12 posts from Physically Handicapped category candidates whereas total number of posts were 312. That would make more than quota also because the quota is only 3% i. e. Making it to nine seats.

(2.) THE learned counsel for the petitioner has joined the issue and stated that these candidates have been enrolled as they having been enrolled under the category of physically Handicapped but as they have on their own merit secured place in the selection. Once they get into the general quota on their own, they cannot be considered under the Physically handicapped Category. Thus, recruitment of these twelve posts would not defeat the case of those candidates who are below in merit and are available to be appointed against nine reserved category posts to the exclusion of those who have been appointed on merits totalling to 12. He placed reliance on a Supreme Court decision in the matter of Mahesh Gupta and Ors. v. Yashwant kumar Ahirwar and Ors. , 2007 6 Supreme 276. Emphasis of the learned counsel for the petitioner is that in this judgment the honourable Supreme Court has taken note of the special status of the handicapped persons and have observed that' handicapped persons form a class by themselves irrespective of the caste and creed and their quota cannot be treated to be bound by the limitation of 50% as has been observed by the Honourable Supreme court in the case of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

(3.) THE learned counsel has further relied on the observations mentioned in this judgment that the reservation in favour of handicapped is a class by itself and that being the position that should fall within the category of vertical reservations reserved for the handicapped because the Act providing for reservation has specifically mentioned that such candidates are required to be appointed in terms of the provisions of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995 (herein-after referred to as "act". Per contra, the learned counsel for the respondent submitted that the Hon'ble Supreme Court in Indra sawhney v. Union of India (supra) has categorised the reservations in two different forms, one vertical and another horizontal and held as under:-