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Smt. Vandana Devi v. State Of U.P. And Others - WRIT - A No. 31132 of 2006 [2007] RD-AH 6575 (10 April 2007)


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Court No. 39

Civil Misc. Writ Petition No. 31132 of 2006

Smt Vandana Devi


State of U.P and others

Hon'ble V.K.Shukla,J.

Selection proceedings for the post of Shiksha Mitra was to take place for which on 07.02.2004 vacancy in question was advertised. Petitioner as well as Smt. Nisha Devi applied for consideration of their claim. In the said selection Smt Vandana Devi W/o Sandeep Kumar claimed that she was entitled for being accorded preference by virtue of being physically handicapped. As preference was not being accorded to Smt. Vandana Devi, she filed Civil Misc. Writ Petition No. 43411 of 2004 before this Court and this Court on 14.10.2004 asked the authority concerned to decide the matter. Thereafter District Magistrate called for comments  and report was submitted that at the point of time of inviting applications there is no provision for according preference in favour of physically handicapped, as such in this background benefit of physically handicapped is not liable to be extended and recommendation was made in favour of Smt. Nisha Devi, respondent no. 5. At this juncture present writ petition has been filed.

Counter affidavit has been filed in the present case contending therein that rightful view has been taken by the District Magistrate, as there has been no provision to accord preference to physically handicapped category candidate at the point of time when selection proceedings had been undertaken.

After pleadings mentioned above have been exchanged present writ petition has been taken up with the consent of parties.

Sri Anil Bhushan, alongwith Ms. Rashim Tripathi canvassed with vehemence for the petitioner that in the present case under Government Order dated 10.10.2005 weightage of 10% marks has been provided to physically handicapped category candidates and in case said weightage marks is included then petitioner would she secure higher merit for the post reserved for female category candidates. In this background petitioner submits that her candidature has been metted with arbitrary treatment.

Sri Rajendra Prasad, Advocate, and Sri P.D. Tripathi, Advocate on the other hand contended that on the date when selection proceeding has been taken place there was no provision of reservation in favour of physically handicapped candidates and as such no benefit can be extended to the physically handicapped category candidates, as such rightful view has been taken in this matter.

After respective arguments have been advanced factual position which is emerging is to the effect that selection proceedings took place pursuant to advertisement dated 07.02.2004 and recommendation was made by Gram Shiksha Samiti on 19.05.2004 and on the said date selection and appointment on the post of Shiksha Mitra was covered under the Government Order dated 01.07.2000 and in the said Government Order there was no provision whatsoever in respect of extending  any benefit of weightage of 10% marks to physically handicapped category candidates. Government order dated 10.10.2005 for the first time introduced beneficiary provision in favour of disabled persons, widows and divorcee lady by providing that 10% weightage marks were to be added to the marks which they have secured. Subsequent to the same another Government Order dated 24.04.2006 has been issued wherein method provided for calculating the marks has been sought to be clarified, providing for the average of 10th and 12th marks are to be first calculated and then 10% marks are to be added.

Division Bench of this Court in the case of Km. Rita Yadav Vs. State of U.P. and others decided on 15.03.2007, in Special Appeal No. 292 of 2007 [(2007) 2 E.S.C 788 viz-a-viz Government Order dated 24.04.2006 has taken the view that the said Government Order is not applicable with retrospective effect, and same would apply prospectively. On the same principles.  Government Order dated 10.10.2005 shall also apply prospectively and selection which has been made earlier to the same under the provision of Government Order dated 01.07.2000, which was holding the field shall govern the selection proceedings.

Consequently in the present case  Government Order dated 10.10.2005 which introduced provision for extending the benefit to disabled persons, widow and divorcee lady for 10% weightage of marks is not applicable or attracted in the present case as such view which has been taken is correct view and same does not suffer from any infirmity.

In terms of above observation, present writ petition is dismissed.

No orders as to cost.




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