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Sashi Kala v. State Of U.P. Thru' Secretary (Basic Education) U.P. & Ors. - SPECIAL APPEAL No. 369 of 2007 [2007] RD-AH 5860 (2 April 2007)


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C.J.'s Court.

Special   Appeal   No. 369   of   2007.

Sashi Kala .......Appellant


State of U.P  & others .....Respondents.


Counsel for the appellant : Shri B.N.Chaturvedi

Counsel for the respondents : Shri C.K.Rai and  learned Standing            Counsel

Hon'ble H.L. Gokhale,  C.J.

Hon'ble Ashok Bhushan, J.

1. Heard learned counsel for the appellant who seeks to challenge the order dated 12.2.2007 whereby appellant's writ petition has been dismissed by a learned Single Judge.

2.        The appellant had challenged the appointment of respondent No.5 to this appeal to the post of Siksha Mitra.  There is no difficulty in saying that respondent No. 5 suffers from hearing disability and because of this disability he is entitled  to some weightage and on account of this factor the complaint made by the petitioner against respondent No.5 was rejected by the District Magistrate, which order was challenged in the writ petition.

3. The point is whether the respondent No. 5  was capable of discharging the duties  for which he was to be appointed.  There is a letter of the Secretary of the Personnel Department of the Government of U.P  dated 30.4.1983, which refers to earlier direction dated 20.5.1978 and particularly to Clause-4 thereof which lays down  that when a disabled person is given reservation on account of his disability, the said disability ought not to be of such type which may  hinder the performance of duties of particular post. It is this                  certification of the concerned person which is necessary and  which we do not find on record.

4. The learned Single Judge has dismissed the petition of the appellant on the first day.  The respondent No. 5 did not have an opportunity to file  a counter affidavit which he ought to have.  The respondent No. 5  must get an opportunity  to point out to the Court as to whether he is capable of discharging the functions of the post of Siksha Mitra  for which he was to be appointed.  It is for this purpose that in our view the petition will have to be revived.

5. For this reason alone, we interfere and set-aside the order passed by the learned Single Judge  and revive the writ petition   before the learned Single Judge.  The respondent No. 5 will at liberty to file his counter affidavit to place the necessary material on record as pointed out above.  It is after considering this aspect only that the learned Single Judge will decide this revived writ  petition.

6. The appeal is therefore allowed in the aforesaid terms.

Date 2.4.2007


(Chief Justice)

(Ashok Bhushan)


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