Allahabad High Court
Sri Nath Pandey And Another vs State Of U.P.Throu. Secy.Basic ... on 7 October, 2013
Bench: Shabihul Hasnain
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 6
Case :- MISC. SINGLE No. - 523 of 2013
Petitioner :- Sri Nath Pandey And Another
Respondent :- State Of U.P.Throu. Secy.Basic Edu.Civil Sectt.Lko.& Ors.
Counsel for Petitioner :- Dev.Kr.Tripathi
Counsel for Respondent :- C.S.C.,P.K.Singh Bisen
Hon'ble Shabihul Hasnain,J.
Heard Sri Dev Kumar Tripathi, learned counsel for the petitioners as well as learned Standing counsel.
Petitioners are physically handicapped due to impairment of hearing. They had applied for Special B.T.C. Training course in response to the advertisement issued in the year 2004. Under 'The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995', reservation for disabled has been provided under Section 33 of the Act which is quoted hereinbelow:-
"33. Reservation of posts.-Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons of class of persons with disability of which one per cent, each shall be reserved for persons suffering from-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy,
in the posts identified for each disability;
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
It is clear from the perusal of the aforesaid Section that under the disability quota a further sub division has been made which in three equal proportions. For example, if there are three posts reserved for disabled persons under the Act, one post will go to a blind person, the other post will go to a person with hearing impairment and the third one will go to a person with locomotor
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disorder. It is clear that the ratio is 1: 1: 1. The opposite parties in the present case failed to mention this reservation in the advertisement and consequently, when the selection was held they provided reservation to disabled persons collectively and not separately as ordained in the aforesaid section 33 of the Act.
Petitioner No.1 obtained 245 and petitioner No.2 obtained 256.07 quality marks respectively. In paragraph 10 of the writ petition, it has been specifically averred by the petitioners that no single candidate has been selected who is disable in the form of hearing impairment. While replying to this in paragraph 3 of the counter affidavit a vague answer has been given that in all three per cent reservation has been given under the 'disabled quota'.
The Court is not satisfied by this answer. The Act provides that the reservation quota has to be distributed equally amongst the three categories mentioned aforesaid. It is an admitted case of the opposite parties that they have not distributed the reservation quota according to the Act, as such, the action of the opposite parties is in violation of the aforesaid Act of 1995.
The petitioner counsel has demonstrated successfully that after filing of the writ petition the opposite parties have corrected this mistake in the subsequent years. This further goes to show that claim of the petitioner is bonafide and correct. It was a mistake on the part of the opposite parties not to implement the 1995 Act in its letter and spirit. They have tried to correct the mistake in subsequent selections.
Petitioner counsel has also informed that this Court in writ petition No.4508 (M/S) of 2004 has passed an order on 14.2.2013 in which a mistake committed by the opposite parties in the year 2004 has been corrected as late as in the month of February, 2013. For convenience the order is being quoted below:
"Affidavit filed on behalf of opposite party nos. 1, 2 & 3 is taken on record.
Through the affidavit the respondents have brought on record a Government Order dated 31.01.2013, whereby they have permitted to include the candidates for Special B.T.C. Course-2004 in Science group who have completed the graduation from Agriculture/Home Science. The
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petitioners before me claimed that they have completed their graduation in Agriculture being the degree as B.Sc. Agriculture. Since the State Government has acknowledged their qualification for Special B.T.C. Course-2004, the controversy has set at rest and the writ petition is disposed of finally with the direction to the respondents to consider the petitioner's candidature for sending them on training accordingly."
After considering the rival arguments, the Court feels that the arguments of the petitioner are valid and correct. The opposite parties are directed to consider the case of the petitioners and send them for special B.T.C. training programme in the further training programmes.
The writ petition is allowed.
Order Date :- 7.10.2013
RKM.
