Allahabad High Court
Devendra Nath Tiwari vs State Of U.P. And Another on 13 January, 2012
Bench: Sunil Ambwani, Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 09.12.2011 Judgment delivered on 13.01.2012 Civil Misc. Writ Petition No.3930 of 2008 Devendra Nath Tiwari v. State of U.P. & Anr. Hon. Sunil Ambwani, J.
Hon. Manoj Misra, J.
1. We have heard Shri Arvind Srivastava, learned counsel for the petitioner. Shri Gautam Baghel appears for the U.P. Public Service Commission.
2. The petitioner is a physically disabled (differently abled) person with 'post parthoparesis of left upper limb, with disability of fifty (50%), of the affected part' verified vide certificate issued by the office of Chief Medical Officer, Allahabad dated 4.12.2003. By this writ petition he has prayed for quashing the advertisement dated 22.12.2007, issued by the U.P. Public Service Commission, Allahabad, and for writ of mandamus for providing reservation for physically handicapped persons in the advertised posts of Assistant Public Prosecutors.
3. On 30.1.2008 the court passed following order protecting the interest of the petitioner:-
"Learned Standing Counsel has accepted notice on behalf of respondent no.1. Respondent no.2 is represented by Shri Pushpendra Singh. Respondents pray for and are granted two weeks' time to file counter affidavit. Rejoinder affidavit may be filed within one week thereafter.
List the matter on 27.2.2008.
The issue up for consideration in the present writ petition is as to whether the benefit of horizontal reservation provided for physically handicapped persons under the Act No.01 of 1996 wold be applicable in respect of process of selection which has been initiated under the advertisement dated 22.12.2007 qua the post of Assistant Prosecution Officer (Pre.) Examination, 2007 or not. The post against which such reservation is being claimed has been identified on 31.7.2007 in terms of the full bench judgment of this Court in the case of Sarika Versus State of U.P. and others, reported in (2005) 3 UPLBEC 2217 decided on 24.2.2005, while the requisition in respect of the vacancies was made to the Public Service Commission by the State Government on 13.07.2007 i.e. prior to such determination. The advertisement inviting application against the requisitioned posts has been published on 22.12.2007 i.e. after the identification of the post. Therefore, it is to be examined as to whether the identification of the post for grant of horizontal reservation to physically handicapped person is to be made available with reference to the date, the requisition was made or with reference to the date of advertisement/ the last date of submission of application, in terms of the advertisement published.
The issue raised before us requires consideration. It is necessary that the interest of the petitioner may be protected till the matter is finally decided by the Court. Accordingly it is provided that the Public Service Commission would segregate the applications received from physically handicapped persons for the post in question. They may also be permitted to participate in the selections so that if the writ petition is finally allowed, this Court may provide for necessary reservation being provided (horizontally) in favour of such applicants,.
Copy of the order may be given today itself to the learned Standing Counsel."
4. The advertisement No.A-5/E-1/2007 dated 22.12.2007 published in Employment News dated 22nd-28th December, 2007 invited applications for Asstt. Prosecution Officer (Pre) Exam, 2007. The advertisement disclosed the details of vacancies and reservation as follows:-
"3. Details of vacancies Total vacancies General S.C. of U.P. S.T. of U.P. O.B.C. of U.P. General Rectt.36 18 8
-10
Special Rectt.119
-64
-55
Two separate Examination shall be held for General and Special Recruitment. The candidate of Scheduled Caste and O.B.C. categories who want to appear in both the examination must fill two separate applications.
No. of vacancies may increase or decrease in exceptional circumstances. 4. Horizontal Reservation is admissible to the candidate of dependent of Freedom Fighter category of U.P. and woman candidates of U.P. according to latest Govt. Orders."
5. The petitioner claims to be qualified and eligible for the post of Asstt. Prosecuting Officer, and within the maximum age. He applied and appeared in the selections for the posts. He is aggrieved by the failure of the State Government to provide reservation on the posts of Asstt. Prosecuting Officer (Pre) Exam, 2007, for physically disabled persons.
6. In the counter affidavit of Shri Rizvanur Rehman, Under Secretary, U.P. Public Service Commission, Allahabad filed on 2nd April, 2008, it is stated in para 3 as follows:-
"3. That before giving parawise reply to the averments made in the writ petition, it is necessary to place following facts on records for just and proper decision of the case by this Hon'ble Court.
3(A) That an advertisement No.A-7/E-1/2006 by the Commissioner for making selection to the 86 posts for General Recruitment and 17 Posts for special recruitment of Assistant Prosecution Officers. After that the Commissioner requested the Director General of Prosecution to make available to the Commission information regarding the number of vacancies, reservation and special recruitment, if any, in response to their letter dated 08.09.2006 at the earliest after examining, so that amendment may be issued.
3 (B) That vide their letter dated 13.11.2006 the Directorate informed that 103 posts of Assistant Prosecution Officer has been sent to the Commissioner, and which has been advertised, therefore, no amendment is needed in that requisitions. The State Government vide its letter dated 22.03.2007 confirmed that in response to 86 posts there are 01 post for D.F.F., 17 posts for Women. Against 17 posts for Special Recruitment there are 03 posts for Women.
3 (C) That in the same way the Directorate had sent for 36 posts for General Recruitment and 119 posts of Special Recruitment vide its letter dated 13.07.2007. At the time of issuing the advertisement for such posts alike advertisement of year 2006 no provision was made for the reservation of P.H. for the post in question because till the date of requisition i.e. 13.07.2007 no Government Order was issued for identifying the post for reservation of P.H."
7. From the pleadings and the arguments of learned counsels appearing for the petitioner, State of U.P. and the Public Service Commission, we find that though it is not denied that there is reservation for physically handicapped persons in public services, such reservation has not been provided in the subject advertisement dated 22.12.2007, on the ground that the State Government has not carried out the exercise nor identified the posts of the Asstt. Prosecuting Officer for the physically disabled persons.
8. The Directive Principle of the State Policy in Part IV of the Constitution of India provides for the State to secure and protect as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life (Art.38); and within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want (Art.41). The social justice to the disabled persons for equal opportunities, protection of rights of full participation, remained a distant dream for the disabled persons, also known as physically- challenged or differently abled persons, until the proclamation was signed by India in the meeting to launch Asian and Pacific Decade of the Disabled Persons, 1993-2002 convened by the Economic and Social Commission for India and Pacific held at Beijing on 1st to 5th December, 1992. The legislative measures adopted by the Central Government and the State Governments, for giving equal participation to disabled persons were scattered at various places, with reference to Entry 23 of List III (social security and social insurance, employment and unemployment) and Entry 41 in List-II (State Public Services, State Public Service Commission). The Parliament gave full meaning to the rights of the disabled persons, by enacting, after 46 years of the enactment of the Constitution, the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 (the Act of 1996), to give effect to the proclamation.
9. The U.P. Public Services (Reservation for Physically Disabled, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993 (U.P. Act No.4 of 1993) enacted before the Act of 1996, provided for reservation at 3% for physically disabled persons in public services in the State of U.P. The Act No.4 of 1993 did not define ''Public Services'. The word ''physically handicapped' was defined in Section 2 (e) of the Act to mean a person (i) who suffers from total absence of eye sight or for limitation of the field of vision subtending an angle of 20 degree or worse or whose visual acuity does not exceed 6/60 or 20/20 (snellen) in the better eye with correcting lenses; or (ii) whose sense of hearing is non-functional for ordinary purposes of life or who suffers from hearing loss of more than 90 decibels in the better ear (profound impairment) or total loss of hearing in both ears or (iii) who has a physical defect or deformity which causes an interference with the normal functioning of the bones, muscles and joints. The U.P. Act No.4 of 1993 did not fulfill the constitutional promise as it did not define the disabilities with sufficient clarity and the State Government failed to identify the posts for reservations qua the disabilities, in all the posts in public services.
10. With the new understanding and meaning given to the rights of the physically handicapped persons given in the Act No.1 of 1996, providing in Chapter VI for employment, and further in Section 32 and 33 for identification of posts, which may be reserved for persons with disabilities and the reservation of posts at 3%, the U.P. Act No.4 of 1993 was amended by U.P. Act No.6 of 1997.
11. Section 32 and 33 of the Act No.1 of 1996; and the amendments in Section 3 in U.P. Act No.4 of 1993 by U.P. Act No.6 of 1997 are quoted as below:-
"Act No.1 of 199632. Identification of posts which can be reserved for persons with disabilities.--Appropriate Governments shall--
(a) identify posts, in the establishments, which can be reserved for the persons with disability;
(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.
33. Reservation of Posts. --Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from--
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability :
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
U.P. Act No.4 of 1993 as amended by U.P. Act No.6 of 1997 "3. Amendment of Section 3.--In Section 3 of the principal Act,--
(a) for Sub-section (1), the following Sub-section shall be substituted, namely :--
"(1) There shall be reserved at the stage of direct recruitment,--
(i) in public services and posts two per cent of vacancies for dependent of freedom fighters and one per cent of vacancies for ex-servicemen;
(ii) in such public services and posts as the State Government may, by notification, identify one per cent of vacancies each for the persons suffering from--
(a) blindness or low vision;
(b) hearing impairment; and
(c) locomotor disability or cerebral palsy."
(b) Sub-section (2) shall be omitted;
(c) in Sub-section (3) for the words "Backward Classes", the words "Other Backward Classes of citizens" shall be substituted;
(d) Sub-section (4) shall be omitted;
(e) for Sub-section (5), the following Sub-section shall be substituted namely :--
"(5) Where, due to nonavailability of suitable candidates any of the vacancies reserved under Sub-section (1) remains unfilled it shall be carried over to the next recruitment."
12. It appears that despite the amendments in Section 3 by U.P. Act No.6 of 1997, the State Government was not sensitive to the discrimination caused to the physically disabled persons, and did not identify the posts reserved for physically disabled persons. Taking stock of the violation of the rights of such persons, a Full Bench of this court in Sarika v. State of U.P., 2005 (3) UPLBEC 2217 observed as follows:-
"39. The identification of posts in question is a sine qua non for extending the benefit of reservation for Physically Disabled Persons. It is so because the persons for which the reservation has been provided may be having such disabilities which may cause obstruction to discharge on such posts in the establishment or public service. For example a blind person will not be able to drive a motor vehicle. A person with both legs amputated may will not be in a position to perform the duties of a job which require extensive tour, and a person with hearing impairment: will not be able to handle the job of telephone operator. A blind or deaf and mute person will not be able to perform the duties of a judicial officer. We are informed that the State Government has identified the posts, only in Group 'C' and 'D' for the purposes of such reservations. The posts in Group 'A' and 'B' have not been identified so far. Sri Sudhir Agarwal, learned Additional Advocate General submits that: in view of the Daya Ram Tripathi's case the State Government has provided reservation for physically disabled persons in Provincial Civil Services (Executive Branch). We are not able to appreciate as to how the State Government is providing such reservation without identification of the public service and the posts, and the disabilities for which the posts may be reserved. He was hesitant in admitting that the reservation for physically disabled persons is not provided in any other Group 'A' and 'B' service.
40. We are extremely pained and distressed to learn that inspite of the constitutional obligation of the social welfare measures and providing for reservation for physically handicapped by Government Orders beginning from 18.7.1972 and enacting U.P. Act No. 4 of 1993, amended in 1997 and 1999, the State Government even after 57 years of independence, has not on its own given the full meaning and purpose to the provisions of reservation for physically disabled in all public service and posts in the State of Uttar Pradesh."
13. The provisions for reservation for physically handicapped persons were not of any benefit to them, until the operating provisions were made applicable by the State Government to provide for the identification of the posts; method of providing reservation, procedure for issuance of disability certificate with defined percentage of disability, and the relaxation to be provided to physically disabled persons of age, and for indicating and indexing the roster points in the 100 point roster, for reservation to be provided on horizontal basis.
14. The Central Government issued Office Memorandums dated 18.2.1999, 20.11.1999, by the Ministry of Personnel, Public Grievances and Pension Department of Personnel and Training, New Delhi, for reservations to physically handicapped persons, to the establishments, which are under the control of the Central Government. After about six years, the Central Government issued Office Memorandums dated 29.12.2005 and 26.4.2006 providing for operating procedures for providing reservations. The State Government woke up to the call given to it by the High Court in Sarika v. State of U.P., and in Shivanand Verma v. State of U.P., Writ Petition No.53801 of 2006 decided on 28.11.2006; and issued a Office Memorandum dated 3.2.2008, following the directions issued by the Central Government in Office Memorandum dated 29.12.2005 and 26.4.2006, providing for operating procedures such as the quantum of reservation (para 1); exemption to any department of the State Government from reservation for physically disabled persons (para 2), for identification of posts (para 3); the identification of posts without reducing the percentage of reservation (para 4); the appointment of disabled persons on unreserved vacancies (para 5); non-displacement of the persons on the unreserved vacancies (para 6); the definition of disabilities (para 7); the percentage of disability to be not less than 40% and the prescribed proforma to be issued by the competent authority (para 8); competent authorities namely the Medical Boards constituted by the State Government with experts for assessing locomotive disability, cerebral palsy, blindness or low vision, hearing loss (para 9); the enquiry to be made by the Medical Board (para 10); the duties of the assessing authority to verify and identify the posts for disabilities (para 11); the calculation of reservation in direct recruitment and in promotion for Group ''C' and ''D' posts (para 12), the provision for reservation for disabled persons in the identified Group ''A' and Group ''B' posts (para 13); the provision of applicability of reservation for physically handicapped persons in 100 point roster in a manner for providing Point No.33 in the first round, point no.66 in the second round and point no.100 in the third round. The interchange and carry forward of the vacancies in direct recruitment, for which separate orders were provided to be issued (para 15), the interchange and carry forward of vacancies for physically disabled for promotion (para 16); horizontal reservation for physically disabled in their own quota of social reservation (para 17); the requirement of disclosing the social category with which such disabled persons is associated (para 18); the age relaxation for maximum of 15 years for Group ''A', ''B', ''C' and ''D' posts (para 19); relaxation of suitability for physically disabled persons (para 20); and other provisions relating to medical examination, exemption in examination and application fees, notice of vacancies etc.
15. In Union of India v. Devendra Kumar Pant, (2009) 14 SCC 546, the Supreme Court considered the question relating to the identification of posts under Section 32 of the Act no.1 of 1996. The respondent lacked 'colour perception', which was not categorized either as blindness or low vision and was not a disability within the meaning of the Act. The Supreme Court considered the mandate of Section 47 (2), of the Act of 2006, providing that promotion shall be denied to a person merely on the ground of his disability, and held that if promotion is denied on the ground that it will affect safety, security and performance, then it is not denial of promotion merely on the ground of his disability, but if it is denial of promotion for reasons of the disability, it is something more than the adverse affect of the disability upon the employee's performance of the higher duties or functions attached to the promotional post. The Supreme Court observed in para 33 and 34 as follows:-
"33. When invoking or applying the provisions of the Act, it is necessary to keep in view that the intention of the Act is to give a helping hand to persons with disability so that they can lead a self-reliant life with dignity and freedom. But the intention of the Act is not to jeopardize the safety and security of the public, co-employees, or the employee himself or the safety and security of the equipments or assets of the employer nor to accept reduced standards of safety and efficiency merely because the employee suffers from a disability. In this case, office order No.4/1990 makes it clear that the minimum medical standards have been fixed taking into account the requirements in the medical manual with reference to interest of public safety, interest of the employee himself and fellow employees and in the interest of the administration.
34. If any employee or group of employees are of the view that a particular minimum medical standard prescribed does not serve the interest of public safety, interest of the employee and fellow employees or the interest of administration, but has been introduced only with the intention of keeping a person with disability from securing the promotional post, it is always open to him or them to give a representation to the employer to review/revise the minimum medical standards. On such representation the employer will refer the issue to a committee of experts to take appropriate decision, if that was not already done. But once a decision regarding medical standards has been taken by the management bonafide and in the usual course of business on the report/recommendation of an expert committee, the same cannot be found fault with on the ground that it affects the right of a person with disability for promotion."
16. In Government of India through Secretary & Anr. v. Ravi Prakash Gupta & Anr., (2010) 7 SCC 626, an objection was taken in the Supreme Court by the respondent, who was a visually handicapped person, and suffers from 100% blindness, that though he was declared successful in the civil services examination conducted by the Union Public Service Commission in the year 2006, and was called for interview on 1.5.2007, in which 474 candidates were selected, no one in the category of visually impaired candidate figured in the list. It was alleged that there were five vacancies available in the visually handicapped category but only one post was offered under the said category. The Addl. Solicitor General appearing for the Government of India submitted that in order to consider the growing demand from the visually handicapped persons, a meeting for identification of jobs in various ministries, departments was scheduled in 1985, in which 416 such posts were identified in Group ''A' and ''B'. In 1986 an Office Memorandum was issued providing preference to be given to handicapped persons for these posts. In 1988 another Office Memorandum was issued causing identification done in the year 1986 to remain valid till it was modified. After coming into force of the Act of 1996, another Office Memorandum was issued, whereby reservation for physically handicapped persons in identified Group 'A' and 'B' posts were extended to posts, which were to be filled up through direct recruitment. In 1999 an expert committee formed by the Ministry of Social Justice and Empowerment submitted its report and made recommendations for identification of posts for the visually handicapped persons. The posts were duly identified, however, the 416 posts, which had not identified in 1985 did not include All India Services and that for the first time in 2005 the posts of Indian Administrative Service was identified in compliance with the provisions of Section 33 of the Act.
17. The Supreme Court, thereafter, held in para, 25, 26, 27, 28, 29, 30 and 31 as follows:-
"25. Although, the Delhi High Court has dealt with the aforesaid questions, we wish to add a few observations of our own in regard to the objects which the legislature intended to achieve by enacting the aforesaid Act. The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Grade `A' and `B' posts in the I.A.S. was undertaken after the year 2005 is not of much substance.
26. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Grade `A', `B', `C' and `D' posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said Section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.
27. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment (emphasis added).
28. For the sake of reference, Sections 32 and 33 of the Disabilities Act, 1995, are reproduced hereinbelow :
"32.Identification of posts which can be reserved for persons with disabilities.- Appropriate Governments shall -
(a) Identify posts, in the establishments, which can be reserved for the persons with disability;
(b) At periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.
33. Reservation of posts.- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:
Provided, that the appropriate Government may, having regard to the type of work carried on in any department or establishment by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
29. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.
30. The various decisions cited by A. Sumathi, learned Advocate for the first intervenor, Shri A.V. Prema Nath, are not of assistance in the facts of this case, which depends on its own facts and interpretation of Sections 32 and 33 of the Disabilities Act, 1995.
31. We, therefore, see no reason to interfere with the judgment of the High Court impugned in the Special Leave Petition which is, accordingly, dismissed with costs. All interim orders are vacated. The petitioners are given eight weeks' time from today to give effect to the directions of the High Court. The petitioners shall pay the cost of these proceedings to the respondent No.1 assessed at Rs.20,000/-, within four weeks from date."
18. The Supreme Court finally clarified that the implementation of the provisions of the Act for reservation to the persons with disabilities should not wait for the identification of the posts for such appointment. The argument that reservations have to wait until the post suitable for such appointment are identified, runs counter to the legislative intent with which the Act was enacted. If the department or establishment has not been exempted under the Act and that reservation is admitted, such reservation does not have to wait for the identification of the posts, suitable for appointment. The legislature never intended, nor permitted the executive to deny the benefits of reservation to physically handicapped persons on the pretext of identification of the posts. While it cannot be denied that unless posts are identified, the appointment cannot be made and to such extent the provisions of Section 33 are depending upon Section 32 of the Central Act, but the extent of such identification is for the purpose of making appointment, and not for the purpose of making reservation.
19. In the present case it is not denied that there is 3% reservation for physically handicapped persons in U.P. Act No.4 of 1993, out of which 1% is for locomotive disability, in the category in which the petitioner falls, the State Government, and the Commission, failed to provide for reservation on the ground that the posts were not identified to be reserved by way of horizontal reservation to the physically handicapped persons for the Asstt. Public Prosecutors.
20. We are informed that by the Government Order No.494/65-0302007078/99 issued by the Principal Secretary, Government of U.P. on 31st July, 2007, and addressed to all the Principal Secretaries, Heads of Departments, Commissioners and District Magistrates of Uttar Pradesh, in order to ensure reservation for physically handicapped persons at 1% each for persons with blind or low vision, 1% for persons with hearing loss and 1% for the persons with locomotive disability or cerebral palsy, under Section 32 of the Act No.1 of 1996 and the amendments made by the U.P. Public Services (Physically Disabled) (Amendment) Act, 1997, the identification has been made for Category 'A' and 'B' posts. In para 3 of the Government Order directions were issued to make appointments in accordance with the identification made for the physically disabled persons, para 3 of the Government Order dated 31st July, 2007 reads as follows:-
^^3- vr% d`i;k fodykaxtu dks iznRr vkj{k.k dk vuqikyu djus ds fy, fpUgkafdr inksa ij fu;ekuqlkj fu;qfDr dh dk;Zokgh dh tk;A ;fn fpUgkafdr in dh vkjf{kr fjfDr;ksa esa ls dksbZ fjfDr mi;qDr vH;fFkZ;ksa dh vuqiyC/krk ds dkj.k fcuk Hkjh jgh tkrh gSa] rks mls vkxkeh HkrhZ ds fy, vxzuhr fd;k t;sxkA bl lEcU/k esa dkfeZd foHkkx }kjk le;≤ ij tkjh vkns'kksa ds vuqlkj dk;Zokgh dh tk;A**
21. The schedule appended to the Government Order dated 31st July, 2007 identifying the post for physically disabled include the post of Asstt. Prosecuting Officer at Item No.29 as follows:-
29- x`g ¼1½ fof/k foKku iz;ksx'kkyk ¼2½ vfHk;kstu funs'kky;
lgk;d funs'kd ¼VkfDldkyksth½ lgk;d vfHk;kstu vf/kdkjh [k [k vks0,0 vks0,0] vks0,y0
22. The subject advertisement was published on 22.12.2007 for Asstt. Prosecution Officer (Pre) Exam, 2007, with the last date for the receipt of application form, on 18th January, 2008. The interim order in this case was passed on 30.1.2008 directing the Public Service Commission to segregate the applications received from physically handicapped persons. A further direction was issued that they may also be permitted to participate in the selections. On 30.1.2008 the Court recorded in the interim order that the posts have been identified on 31.7.2007 in terms of the Full Bench judgment of this Court in Sarika's case (Supra).
23. In Prashant Kumar v. State of U.P. & Anr., 2005 (3) AWC 2738 the Full Bench of this Court held as under:-
"We consequently answer the question as follows :
"The benefit of reservation to 'Other Backward Class' candidates in selection in Public Services by direct recruitment as provided by U. P. Public Service (Reservation for Scheduled Caste/Scheduled Tribes and Other Backward Class) Act, 1994, is applicable, to only those categories or castes which are notified as Other Backward Classes entered in Schedule-1 of the Act, upto the last date of filling up of the application form for such selections, provided there is no contrary provision in the Service Rules, the terms and conditions of recruitment, or in the advertisement."
It is admitted to the parties that the merit position of Km. Smrita Singh with 1,096 marks was higher than the merit position of Prashant Kumar with 1,092 marks for the only vacancy on the post of Sub-Divisional Magistrate reserved for 'O.B.C.' in the selections and as such Km. Smrita Singh is entitled for appointment.
We consequently, dismiss all the petitions, with no order as to costs. The interim orders are discharged."
24. The petitioner had intimated the order of this Court dated 30.1.2008 to the Commission along with the letter dated 4.2.2008. It is alleged that inspite of communication of the order the petitioner was not permitted to participate in the main examination held on 26th/27th October, 2010, the result of which has not been declared so far upto the hearing of the writ petition on 9.12.2011 along with Writ Petition No.51895 of 2011 filed by the petitioner in respect of the advertisement issued for the 102 vacancies of Asstt. Prosecuting Officer (Pre) Examination, 2011, on 13th August, 2011.
25. In this case the State Government as well as the U.P. Public Service Commission grossly erred in law and acted arbitrarily in violation of Art.14 and 16 of the Constitution of India and in contravention of the provisions of U.P. Act No.4 of 1993, in failing to provide reservation for physically handicapped persons purportedly on the false pretext that the identification of the categories of physically disabled persons was not made for the posts of Asstt. Prosecutor at the time of requisition of the vacancies as well as by the date of publication of the advertisement on 22.12.2007 with the last date of receipt of application forms fixed on 18.1.2008. The State Government had before that date issued the Office Memorandum dated 3rd February, 2008, identifying the vacancies for Group 'A' and 'B' posts. The identification of posts is made for appointment, and not for providing reservations. The Office Memorandum dated 3rd February, 2008, accepted in principle provision for reservation in Group 'A' and 'B' posts and has identified the categories of the physical disability for Group 'A' and 'B' posts including the post of Asstt. Public Prosecutor.
26. In view of the judgment of the Supreme Court in Government of India through Secretary v. Ravi Prakash (Supra) the reservation for physically handicapped persons in the Asstt. Public Prosecutor Examination advertised on 22.12.2007 was not dependent on identification of posts, though infact the process of such identification in pursuance to the Office Memorandum dated 3rd February, 2008 issued by the State Government was carried out before the last date of submitting application forms. The U.P. Act No.4 of 1993 mandates the executive of the State to make appointments in the numbers of posts providing reservation for the three categories defined in U.P. Act No.4 of 1993 as amended in 1997. We also find that the U.P. Public Service Commission acted illegally in failing to comply with interim order dated 30.1.2008 to segregate the applications received from physically handicapped persons and in allowing them to appear in the examinations and interviews.
27. The writ petition is allowed. The U.P. Public Service Commission will allow all those physically handicapped persons for the post of Asstt. Public Prosecutor to participate in the selections, who had applied, but were not allowed to take the examinations. The U.P. Public Service Commission will hold examination, for selections of such physically handicapped persons of the identified sub-categories for the posts, and will recommend for their appointments, in accordance with the interse merit by adjusting such persons of the categories specified by the State Government in the Government Order dated 31st July, 2007. The State Government will, thereafter, make appointments from such selected persons in accordance with law.
Dt.13.01.2012 SP/