Allahabad High Court
Ram Sevak Tripathi vs U.P. Public Service Commission And Ors. on 20 May, 2002
Equivalent citations: 2002(3)AWC2238A, [2002(95)FLR68], (2002)2UPLBEC1948
Author: Rakesh Tiwari
Bench: M. Katju, Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard Sri. Bashist Tiwari, learned counsel for the petitioner and Sri B. N. Singh learned counsel for the respondents.
2. The petitioner is a visually handicapped person. He is working as Senior Assistant in the scale of Rs. 4,000-6.000 in the Regional Transport Office. Allahabad. By means of this petition, the petitioner has approached this Court for the following main reliefs :
(i) to issue a writ, order or direction in the nature of mandamus commanding the respondents to give 1 % reservation in favour of visually handicapped persons separately as provided in the Central Act as well as in the State Act as amended from time to time ;
(ii) to issue a writ, order or direction in the nature of mandamus commanding the respondents to evaluate candidature of the petitioner on the basis of 35% marks and consequently to permit the petitioner to appear in the main examination conducted by the Commission approximately next month of the year for State/Subordinate Services in the year 2001.
3. The grievance of the petitioner is that as per the provisions of "The Persons with Disabilities (Equal Opportunities. Protection of Right and Full Participation) Act, 1995" (Act No. 1 of 1996) and the "U.P. Public Service Commission (Reservation for Physically Handicapped. Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, as amended by Act No. 6 of 1997, one post should be reserved for visually handicapped person by the State Government in autonomous bodies financed and controlled by the State Government. It is stated that inspite of the reservation having been provided under the aforesaid Act, the U.P. Government is not giving benefit of the reservation to the visually handicapped persons and loss is being caused to them.
4. In so far as prayer No. 1 of the writ petition is concerned, the petitioner has placed reliance on paragraph 7 of the rejoinder-affidavit in which it has been stated that the Central Government has classified and identified suitable posts in group-B and C services, but the State Government has not identified such posts. It has been submitted that in view of the fact that group-B and C posts having been already identified by the Central Government, the State Government also has to identify the posts in accordance with the provisions of Section 3 (II) of the U.P. Public Service Commission (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993. The scope of the persons falling under Disabilities (Equal Opportunities Protection of Right and full Participation) Act. 1995, is different from the U.P. Public Service Commission (Reservation for Physically Handicapped, Dependents of Freedom Fighter and Ex-Servicemen) Act.
5. It is settled law that if law provides that a thing is to be done in a certain manner, it has to be done in that manner or not at all. The benefit conferred in the 1995 Act could not be given to the persons under the 1996 Act, as they have to be identified according to that Act. It is for the Government to notify the vacancies and send requisition for any post which has been identified for selection on the said post, though the examination is conducted by the U.P. Public Service Commission. No direction can be given for appointment of any individuals on any post which has neither been identified or requisitioned by the State Government for the said posts. However, persons must have equal opportunity for employment, which follows that the petitioner cannot be discriminated with other persons of his category in examination, which may be held by the U.P. Public Service Commission for the posts which have been identified.
6. The second contention of the petitioner is in respect of minimum qualifying marks. It has been submitted by the respondents that it cannot be granted as marks are fixed by the Commission. The Commission has fixed minimum qualifying marks at 35% for S.C. and S.T. and 40% for other categories. The S.C. and S.T. candidates belong to a different class, from physically handicapped persons. The Commission has right to fix different qualifying marks for above categories and it will not amount to discrimination. The learned standing counsel has placed reliance on paragraph 15 of the counter-affidavit in which it has been specifically stated that the petitioner was awarded only 195 marks out of 430 marks, i.e., 43.33% while the marks obtained by the last candidate of physically handicapped category was 263 out of 450 marks, i.e., 58.44%. Therefore, he was rightly not placed in the merit list. He submitted that the prayer for considering the candidature of the petitioner on the basis of 35% marks and consequently permitting him for appearing in the main examination in the next month is wholly misconceived. A perusal of the record also shows that the writ petition was signed on 22.8.2001 and came up before the Court for the first time on 3.10.2001, hence the prayer for permitting him to appear in the examination has become infructuous. There is yet another reason for not acceding to the prayer of the petitioner. The other candidates, who have qualified or have obtained higher percentage of marks than the petitioner, have not been made parties to the writ petition. He alone cannot be permitted to be evaluated on the basis of 35% marks,
7. In so far as the second prayer is concerned, the petitioner had appeared in the examination held by the U.P. Public Service Commission for State Subordinate Services, 1999 and 2000 and failed to qualify. The result of the said examination was declared on 28.6.2001. The petitioner could not secure enough marks in the preliminary examination to qualify for being permitted to appear in the main examination. It has been stated that he did not find place amongst number of candidates upto 15 times of the number of vacancies as per criteria fixed by the Commission, according to his position in the merit list.
8. It is not open to the Court to interfere with the qualification/ eligibility prescribed as the same falls within the realm of academic matters. In University of Mysore v. C. D. Govinda Rao, AIR 1964 SC 49 and Tariq Islam v. Aligarh Muslim University, 2001 (4) AWC 3172 (SC) : 2001 (8) SCC 546, the Apex Court has taken the view that such question, pertaining to qualification which pertains to academic matters, should be left to the wisdom of the authorities.
9. A Court could consider and examine the legality or otherwise of a matter only at an instance of a person who is qualified and eligible and has locus standi and not the one who has no eligibility in the examination and desires that his candidature be considered by ignoring criteria of minimum qualifying marks at 35%.
10. For the reasons stated above, the writ petition fails and is dismissed. No order as to costs.