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Shyam Narain Tewari v. State Of U.P. & Others - WRIT - A No. 12656 of 1999  RD-AH 9546 (18 May 2007)
Civil Misc. Writ Petition No. 12656 of 1999
Shyam Narain Tewari .............................. petitioner
State of U.P. and others .......................... Respondents
Hon'ble V.M.Sahai, J
Hon'ble Sabhajeet Yadav, J
The Public Service Commission, U.P. Allahabad (in brief the Commission) issued an advertisement no. A-7-E-1/97-98 on 31.12.1997 inviting applications for 144 posts of Child Development Project Officer (Bal Vikas Pariyojna Adhikari). The petitioner being qualified and eligible applied in pursuance of the aforesaid advertisement and claimed reservation as physically handicapped candidate. He submitted a certificate showing that he was physically handicapped person. The written examination was held on 11.4.1998 to 13.4.1998. The petitioner was declared successful in the written examination with roll no.022666 and was called for the interview. After the interview was over, the Commission declared the result. The Commission sent its recommendation to the State Government for appointing 122 candidates for plain cadre and another 22 candidates were recommended for hill cadre on 10.12.1998. The petitioner was a candidate of plain cadre. He secured total 599 marks in written examination and interview and Ms Shriddha Katiyar was recommended at serial no.1 in the merit list of physically handicapped candidates for appointment. Sri Anil Kumar and the petitioner had secured 599 marks each. The name of Sri Anil Kumar was recommended at serial no.2 for appointment as physically handicapped candidate as only 2 vacancies were reserved under the physically handicapped category by the Commission. The petitioner's name was not recommended though he had secured equal marks along with Sri Anil Kumar. The said Sri Anil Kumar who had secured higher marks in written test had to be placed higher in the merit list.
This writ petition has been filed by the petitioners on the ground that the Commission had illegally applied only 2% reservation quota for physically handicapped candidates though as per The Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighters and Ex-Servicemen)(Amendment) Act, 1997, U.P. Act No.6 of 1997 which was published in U.P. Gazette Extraordinary on 31st July, 1997 provided for 3% reservation for physically handicapped candidates.
We have heard Sri Ashok Khare, learned senior counsel assisted by Sri Mahendra Bahadur Singh for the petitioner, learned standing counsel appearing for respondent no.1 and 2 and Sri M.A. Qadeer, learned counsel appearing for respondent no.3.
Shri Ashok Khare, learned senior counsel for the petitioner has urged that no doubt, requisition was sent by the State Government to the Commission on 8.4.1997 reserving only 2% posts for physically handicapped candidates but in view of the fact that U.P. Act No. 6 of 1997 came into force w.e.f. 9.7.1997 was applicable and the Commission had issued the advertisement on 31.12.1997, therefore, since the law had been amended w.e.f. 9.7.1997 any advertisement issued by the Commission or written test or interview held thereafter was to be held in conformity with the U.P. Act No.6 of 1997. On the other hand, Sri M.A. Qadeer, learned counsel for the respondents has urged that since the requisition was sent by the State Government to the Commission on 8.4.1997, providing only 2% reservation in favour of the physically handicapped candidates, therefore, only two vacancies were reserved by the commission under the aforesaid category. Sri Vikas Tripathi, learned standing counsel has supported the arguments of Sri M.A. Qadeer.
U.P. Act No.6 of 1997 has amended section 3 of the principal Act, U.P. Act no.4 of 1993 and now under the physically handicapped category 3% vacancy had been reserved. This question had been considered by this court in Dr. Ravindra Kumar Pandey v. State of U.P. and others, 2006(3) ESC 1880(DB) wherein this court had considered the effect of amendment made in section 3 of the principal Act and had laid down the law as to how the vacancy of physically handicapped candidates had to be worked out and how horizontal reservation for physically handicapped candidates had to be applied. The court has held as under :
".......From the amendment introduced by U.P. Act No.6 of 1997 it appears obvious that the State in keeping with the Central enactment provided reservation for physically handicapped incorporating the provision of one percent for each category of physically handicapped. Even though the State Act has not specifically provided that three percent of the vacancies shall be reserved for physically handicapped but the two enactments the Central and State dealing with the same subject and the Central Act having directed every appropriate government to provide not less than three percent for physically handicapped, the State enactment has to be read as providing three percent reservation for physically handicapped....."
The court has further held that :
".....It is only those persons who suffer from the disability mentioned in the section who are entitled to claim reservation. The extent of protection has been determined by Central Legislature by directing that it should not be less than three percent. Who would be entitled for such benefit is mentioned and one percent has been marked for each category of disability. Therefore, reservation for physically handicapped has to be worked out on three three percent at the stage of direct reservation in public services and posts in connection with the affairs of the State....."
The controversy involved in this petition is covered by the decision in Dr. Ravindra Kumar Pandey case (supra).
It is not disputed by the learned counsel for the respondents that there were 122 posts of Child Development Project Officers to be filled. If 3% reservation is applied under the U.P. Act No.6 of 1997, then 3 vacancies would be reserved and would be available to be filled by physically handicapped candidates. But the respondents have filled only two vacancies of physically handicapped candidates by applying reservation of 2% only. In our opinion, since the Amendment Act U.P. Act No.6 of 1997 had come into force on 9.7.1997 prior to the advertisement and initiation of the selection process, namely, the written test and the interview, therefore, the physically handicapped candidates were entitled for 3% reservations and 3 vacancies were required to be reserved for physically handicapped candidates. Section 5 of the principal Act had been amended and it had clearly been explained that the selection process shall be deemed to have been initiated where under the relevant service rules recruitment has to be made on the basis of written test and the interview, if the written test has started.
Section 5 of U.P. Act No.6 of 1997 by which section 5 of the principal Act U.P. Act No.4 of 1993 has been amended is extracted as under :-
"5. Savings- (1) The provisions of this Act as amended by the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) (Amendment) Act, 1997 shall not apply to cases in which selection process has been initiated before the commencement of the said Act and such cases shall be dealt with in accordance with the provisions of this Act as they stood before such commencement.
Explanation - For the purposes of this sub-section the selection process shall be deemed to have been initiated where, under the relevant service rules, recruitment is to be made on the basis of, -
(i)written test or interview only, the written test or the interview, as the case may be has started, or
(ii)both written test and interview, the written test has started.
(2) The provisions of this Act shall not apply to the appointment to be made under the Uttar Pradesh Recruitment of Dependent of Government Servant Dying in harness Rules, 1974."
In the instant case the advertisement itself was issued after U.P. Act No.6 of 1997 had come into force, therefore, the selection process was not initiated as provided by section 5 of the amending act. Commission is a statutory body. It is bound by the law of the State. Once the U.P. Act No.4 of 1993 was amended by U.P. Act no.6 of 1997 which came into force on 9.7.1997 the State Government was under a legal duty to modify its requisition dated 8.4.1997 sent to the Commission. Even the commission could have sought a clarification from the State Government in view of changes made in law providing horizontal reservation to physically handicapped candidates. Both have failed in their legal duty for which the petitioner cannot be made to suffer. The State Government as well as the Commission have committed an error apparent on the face of the record in not providing 3% reservation to physically handicapped candidates in the aforesaid selection. Therefore, one more vacancy was to be filled from physically handicapped candidates and since the petitioner had secured 599 marks equivalent to to the marks secured by Sri Anil Kumar who was selected at serial no.2 under the physically handicapped candidates category, therefore, the petitioner was also entitled for selection and appointment as physically handicapped candidate on the post of Child Development Project Officer. It is not the case of respondents that any other candidate of the first two categories of disabilities provided in the Act were available, therefore, the petitioner who belonged to the third category of disability is entitled for selection and appointment.
Both Sri M.A. Qadeer, learned counsel for the Commission and Sri Vikas Tripathi, learned standing counsel have vehemently urged that recommendations have been sent by the Commission in the year 1998 and after lapse of about nine years no vacancy is available on which the petitioner could be appointed. We have considered the submissions of learned counsel for the respondents. In our considered opinion, since the writ petition was filed by the petitioner raising his grievances in March 1999 itself and the petition remained pending for disposal before this court, therefore, the petitioner cannot be made to suffer due to the pendency of the writ petition and he is entitled to be appointed on the post of Child Development Project Officer and if no post is available a direction is liable to be issued to the State Government to create a supernumerary post and appoint the petitioner as Child Development Project Officer. However, we make it clear that on such appointment the petitioner shall not be given any seniority benefit w.e.f. the date of appointment of other candidates who had been selected and given appointment in pursuance of advertisement in question. The seniority of the petitioner shall be counted forthwith from the date of his appointment.
In the result, this writ petition succeeds and is allowed. A writ of mandamus is issued to the Public Service Commission, U.P. Allahabad to recommend the name of the petitioner under the physically handicapped category for appointment on the post of Child Development Project Officer within a period of one month from the date a certified copy of this order is produced before the Commission. State Government is also directed to issue appointment letter to the petitioner in the vacancy on the post of Child Development Project Officer if it is available within a further period of two months after getting the necessary formalities completed within the aforesaid period. However, if there is no post available then the State Government is directed to create a supernumerary post and appoint the petitioner as Child Development Project Officer within the aforesaid period.
Parties shall bear their own costs.
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