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Kuldeep S/O Shri Vindeshwari Prasad Patel v. State Of U.P. Thru' Secretary (Excise) Abkari Anubhag-1 &Ors - SPECIAL APPEAL DEFECTIVE No. 407 of 2007 [2007] RD-AH 8548 (7 May 2007)


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Court No.32

Special Appeal No.407 of 2007 (D)

Kuldeep v. State of U.P. and others.

Hon'ble S. Rafat Alam, J.

Hon'ble Rakesh Sharma, J.

This intra court appeal, under the rules of Court, arises from the judgment dated 12.3.2007 of the Hon'ble Single Judge dismissing the appellant's Civil Misc. Writ Petition No.56827 of 2005 seeking quashing of the order dated 6.1.2005 of the State of Uttar Pradesh through Secretary (Excise) Abkari anubhag-1, U.P. Shasan, Lucknow, respondent no.1 and consequential order dated 26.5.2005 of the Additional Excise Commissioner (Administration) U.P. at Allahabad, respondent no.3 refusing to give appointment to the petitioner-appellant on the post of Excise Inspector on the ground that there is no reservation for physically handicapped person for appointment to the post of Excise Inspector.

Heard learned counsel for the appellant and also perused the judgment under appeal.

Learned counsel for the appellant has vehemently contended that the Hon'ble Single Judge has misread the notification dated 7.5.1999 wherein at serial no. 35 the post of Excise Inspector has been mentioned and, therefore, the Hon'ble Single Judge fell in error in rejecting the prayer merely on the ground that the post has not been identified under Rule 3 (1) (ii) of the U.P. Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighters & Ex-servicemen) Act, 1993 (hereinafter referred to as the Act) and as such the appellant cannot be appointed.

We have considered the submissions and are of the view that the submissions cannot be accepted for the reason that from a bare perusal of the aforesaid notification it is apparent that the posts of Inspector, supervisor and other clerical posts are placed in Group ''C' and  ''D'.  It is well settled legal position that if the Act and the Rules prescribe a certain standard of physical fitness for the particular post, the same cannot be bye passed by the G.O. or notification.  In the instant case, the appointment of the Excise Inspector is governed by the U.P. Subordinate Excise Service Rules, 1992.  Rule 13 deals with physical fitness of a candidate, which reads as under: -

"Physical fitness.--(1) No candidate shall be appointed to a post in the service unless he be in a good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties.  Before a candidate is finally approved for appointment he shall be required to produce a medical certificate of fitness in accordance with the rules framed under Fundamental Rule 10 as contained in Chapter III of the Financial Handbook Volume II, Part III:

Provided that a medical certificate of fitness shall not be required from a candidate recruited by promotion.

(2) No person shall be recruited directly or by promotion to the service:

(ii) Whose chest measurement is less than 81.2 centimetres unexpanded and 86.2 centimetres expanded.

(ii) Whose height is less than 167 centimetres or less than 162 centimetres in the case of the candidates recruited by promotion or belonging to Kumaon Division and Dehra Dun, Chamoli, Tehri Garhwal, Pauri Garhwal and Uttar Kashi districts:

Provided that physical requirements in the case of female candidate will be the same as prescribed for the female police Sub-Inspectors.  The physical requirements are given in Appendix ''B'."

Therefore, looking to the nature of duties and the functions discharged by a Excise Inspector, the rule provides that a candidate must be in a good mental and bodily health and free from any physical defect so that he may discharge his duties efficiently.  In the case in hand, admittedly, the appellant suffers physical disability of 45% and, therefore, it would not be possible for him to discharge his duties properly.  Besides that we are of the view that from a perusal of the scheme of the relevant rules, it is apparent that the post of Excise Inspector cannot be equaled with those Inspectors and Supervisors, who are discharging the ministerial duties and are part of the clerical establishment of the office. Therefore, we are in respectful agreement with the view taken by the Hon'ble Single Judge.

The special appeal, being without merit, is dismissed.




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