Anand Kumar vs U.P. Public Service Commission, ...
2014 Latest Caselaw 7119 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(Judgement reserved on 16.5.2014)
 
(Judgement pronounced on 26.9.2014)
 

 
A.F.R.
 
Court No. - 59
 

 
Case :- WRIT - A No. - 7722 of 2003
 

 
Petitioner :- Anand Kumar
 
Respondent :- U.P. Public Service Commission, Alld. & Others
 
Counsel for Petitioner :- Surendra Kumar Mishra,Arvind Srivastava
 
Counsel for Respondent :- C.S.C.,B.N. Singh,C.S. Singh,M.A.Qadeer,Neeraj Tewari,Pushpendra Singh,S.N.Srivastava
 

 
Hon'ble Rajan Roy,J.

Heard Shri Arvind Srivastava, learned counsel for the petitioner, Shri M.A.Qadeer, learned senior advocate assisted by Shri Shamim Ahmad, learned counsel appearing for the Public Service Commission as well as learned Standing Counsel.

This writ petition has been filed by the petitioner, who is a physically handicapped person, seeking the following reliefs:

"i) any order or direction or writ in the nature of mandamus commanding the respondents more specifically U.P. Public Service Commission Allahabad to declare the result of three post of Economics & Statistical Inspector as reserved for physically handicapped candidates who had applied pursuant to the Advertisement No.2/2000-2001.

(i-a) to issue a writ, order or direction in the nature of certiorari quashing the Government Order dated 5.7.1999 so far as it does not include the post of Economic and Statistical Inspector/Assistant Development Officer in the list of post reserved for physically handicapped persons (Annexure no.11 to this writ petition).

i-b) to issue a writ, order or direction in the nature of certiorari quashing the Government Order dated 4.2.2002 (Annexure no.12 to this writ petition).

i-c) to issue a writ, order or direction in the nature of mandamus directing the respondents to issue appointment letter to the petitioner for the post of Economic and Statistical Inspector which is reserved under physically handicapped persons quota.

ii) any writ, order or direction as this Hon'ble Court may deem fit and just under the circumstances of the case.

iii) to award cost throughout."

An advertisement bearing no.2/2000-01 was issued by the U.P. Public Service Commission, Allahabad and published on 14.8.2000 in the newspaper Amar Ujala inviting applications from eligible candidates for selection/ appointment against 252 posts of Economic and Statistical Inspector in the U.P. Planning Department. The petitioner, claiming himself to be eligible, applied for consideration under the physically handicapped quota. The aforesaid advertisement mentioned that 3 posts out of 252 posts were reserved for physically handicapped persons. The petitioner was declared successful in the screening test, thereafter, he appeared in the main written examination and qualified the same. He was called for the interview which was held on 2.12.2002. The petitioner appeared therein. In the final result declared on 19.01.2003 his name did not figure in the list of selected candidates. Being aggrieved, the petitioner has filed this writ petition for the reliefs, referred to hereinabove.

The contention of the learned counsel for the petitioner is that the advertisement in question contained a categorical stipulation regarding reservation of three posts of Economic and Statistical Inspector for physically handicapped and also regarding production of requisite medical certificate as per relevant Government Order, therefore, the respondents were bound to provide the benefit of reservation to the physically disabled persons like the petitioner who had duly applied based on the aforesaid recitals in the advertisement. Learned counsel for the petitioner further submitted that such benefit of reservation for physically handicapped persons was mandatory in view of the provisions contained in the U.P. Public Services (Reservation of Physically Handicapped, Dependants of Freedom Fighter and Ex-servicemen) Act 1993 ( in short "Act of 1993") as amended in the year 1997 and the provisions of the Persons with Disability (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 (in short "Act of 1995"). He specifically relied upon Sections 32, 33 of the aforesaid Act of 1995. He relied upon the judgments of the Supreme Court reported in Government of India v. Ravi Prakash and another, 2010(7) SCC, judgment dated 8.7.2013 passed in Civil Appeal No.990 of 2013 and a division bench judgment of this Court dated 13.01.2012 rendered in Civil Misc. Writ Petition No.3930 of 2008.

The contention of the learned counsel for the petitioner was that reservation having been promised in the advertisement in question, it is not open for the respondents herein, to contend that as the posts in question had not been identified for the said purpose, no benefit of reservation was available to the petitioner nor that the aforesaid recital in the advertisement was a bona fide mistake. Learned counsel relied upon the principle of estoppel. He contended that the benefit of reservation under section 33 of Act 1995 is not dependent upon the identification of posts under section 32 thereof.

It was also the contention of Shri Srivastava, learned counsel for the petitioner that there was no justifiable reason for not identifying the post of Economic and Statistical Inspector under section 32 for the purpose of reservation under section 33 of the Act of 1995. The post in question involved only table work and the impugned Government Orders 7.5.1999 and 4.2.2002 are not at all sustainable. The said Government Orders are in contravention of the legislative mandate contained in the Act of 1993 and the Central Act of 1995 as also the pronouncements of the Supreme Court and this Court.

On the other hand, Shri M.A. Qadeer, learned senior counsel appearing for the Commission as well as learned Standing Counsel submitted that in fact, the State Government undertook the exercise for identification of the posts under section 32 of Act of 1995 and the Act of 1993, as amended in the year 1997, for the purpose of extending the benefit of reservation to the physically disabled persons but the post of Economic and Statistical Inspector was not identified for the said purpose as is evident from the Government Order dated 7.5.1995, wherein the posts identified departmentally were mentioned along with the functional reservation but the said post does not find mention therein, therefore, there was no question of reservation in this case for the petitioner. Regarding the contents of the advertisement in question, it is submitted that the same was a bona fide mistake. A Requisition was sent on 5.2.2000 by the State Government to the Commission wherein it was specifically mentioned that reservation to handicapped persons would be in accordance with the provisions of the Amending Act No.6 of 1997. The said requisition was thereafter amended vide another requisition dated 21.8.2000. The Commission sent a letter dated 18.12.2001 to the State Government stating therein that no reservation has been identified/earmarked on the post of Economic and Statistics Inspector/Assistant Development Officer (Statistics) for handicapped persons. As soon as the letter of the Commission dated 18.12.2001 was received by the State Government, the State Government sent a letter dated 4.2.2002 to the Commission clarifying that the said post had not been identified for the said category by the Government of India, therefore, the same has not been included in the Government Order dated 7.5.1999 for reservation for handicapped persons. Accordingly, the Commission was asked to proceed with the selection without providing reservation being claimed by the petitioner. He further submitted that the post in question does not involve table work. The officers are required to be posted at block level and have to travel extensively in rural areas for collection of data and they have to interact with people and workers at the village level and have to verify the development work on the spot. In this regard, he referred to the function of the post in question mentioned in the letter dated 7.12.2006, a copy of which has been annexed as Annexure CA-3 to the counter affidavit, filed on August 18, 2010. He submitted that for those reasons the posts in question have not been identified for reservation to physically disabled persons.

In Rejoinder affidavit, Shri Srivastava submitted that having provided reservation to the physically handicapped person in the advertisement, the respondents cannot resile from the same.

A perusal of the judgment of the Supreme Court in the case of Government of India vs. Ravi Prakash Gupta (supra) leaves no doubt that the reservation for physically disabled, as contemplated under section 33 of Act of 1995, is not dependent upon identification of posts for the said purpose under section 32 thereof, but at the same time, in paragraph 29 of the said judgment, their Lordships have also held that it cannot be denied that unless posts are identified for the purpose of Section 33 of the aforesaid Act, no appointment from the reserved categories contained therein can be made and to such extent the provisions of section 33 are dependent on section 32 of the Act and the extent of dependence would be for the purpose of making appointments and not for making reservation. Thus, though reservation is not dependent on such identification under section 32, appointment is certainly dependent thereon. Section 32 enjoins upon the appropriate government to identify posts in the establishments which can be reserved for persons with disability and to review the list of posts identified at periodical intervals not exceeding 3 years and update the same taking into consideration the development in technology. Based on the aforesaid, provisions of Act of 1993, as applicable in the State of U.P. was amended in the year 1997. The amended section 3 of Act 1993 also refers to reservation on posts in such public services, as the State Government may, by notification, identify.

The legal position is well settled that the appropriate government is entitled to identify the posts on which the reservation may be provided to the physically disabled persons in terms of the aforesaid enactment, as the nature and duties of a particular post may not lend themselves for being reserved for such persons and it may also not be in the interest of the institution. In this regard reference may be made to the judgment of the Supreme Court in the case of Union of India and another v. National Federation of the Blind &Ors. Reference may also be made in this regard of the Full Bench decision in Sarika v. State of U.P.,2005(3) UPLBEC 2217, wherein, their Lordships have held as under:

"39. The identification of posts in question is a sine qua non for extending the benefit of reservation for Physically Disabled Persons. It is so because the persons for which the reservation has been provided may be having such disabilities which may cause obstruction to discharge on such posts in the establishment or public service. For example a blind person will not be able to drive a motor vehicle. A person with both legs amputated may will not be in a position to perform the duties of a job which require extensive tour, and a person with hearing impairment: will not be able to handle the job of telephone operator. A blind or deaf and mute person will not be able to perform duties of a judicial officer. We are informed that the State Government has identified the posts, only in Group 'C' and 'D' for the purposes of such reservations. The posts in Group 'A' and 'B' have not been identified so far. Sri Sudhir Agarwal, learned Additional Advocate General submits that: in view of the Daya Ram Tripathi's case the State Government has provided reservation for physically disabled persons in provincial Civil Services (Executive Branch). We are not able to appreciate as to how the State Government is providing such reservation without identification of the public service and the posts, and the disabilities for which the posts may be reserved. He was hesitant in admitting that the reservation for physically disabled persons is not provided in any other Group 'A' and 'B' service.

40. We are extremely pained and distressed to learn that inspite of the constitutional obligation of the social welfare measures and providing for reservation for physically handicapped by Government Orders beginning from 18.7.1972 and enacting U.P. Act No.4 of 1993, amended in 1997 and 1999, the State Government even after 57 years of independence, has not on its own given the full meaning and purpose to the provisions of reservation for physically disabled in all public service and posts in the State of Uttar Pradesh."

In this context it is not out of place to mention that the Central Government has issued office memorandum dated 29.12.2005 and 24.6.2000 providing for procedures such as identification of posts etc. for implementation of provisions of Act, 1995. The Central Government, while identifying the posts, has not identified the post of Economic and Statistical Inspector. The State Government issued a Government Order dated 7.5.1999 identifying Group 'C' and 'D' posts for the purposes of reservation to physically handicapped persons under the Act of 1993 wherein the post of Economic and Statistical Inspector in the planning department has not been included/identified for providing reservation to physically handicapped persons. This Government Order was issued prior to the advertisement no.2/2000-01, therefore, in the facts and circumstances of the case, clearly there was a bona fide error on the part of the respondents, while issuing the advertisement in question mentioning therein that 3 posts were reserved for physically disabled persons. The post in question having not been identified for reservation, the provisions of Act of 1993 as amended in 1997 and the Central Act of 1995 would not confer any benefit of appointment upon the petitioner, based on the provisions of reservation contained therein. The State Government clarified the matter to the Commission vide its letter dated 4.2.2002 in terms of the earlier Government Order dated 7.5.1999. Accordingly, while finalising the selection, the Commission refrained from providing appointment to the physically disabled on the posts in question.

It is not out of place to mention that the State Government again issued a Government Order dated 13.1.2011, identifying the posts, on which the benefit of appointment for the physically disabled was admissible under the relevant Act and the post of Economic and Statistical Inspector has not been mentioned therein, rather it has been excluded. The averment of the petitioner in the rejoinder affidavit regarding the inclusion of the post in question is based on a misconception, as the post included therein, is of Economic and Statistical Officer and not Economic and Statistical Inspector. The post in question having not been identified for appointment for the physically disabled, there is no question of estoppel in the matter, as the recitals contained in the advertisement, was a bona fide error.

As far as the contention of the learned counsel for the petitioner that non identification of the post in question for reservation for the physically disabled and the alleged violation of the legislative mandate is concerned, the same cannot be accepted for the reason that the post in question does not involve mere table work but also involves strenuous duties requiring a certain degree of physical fitness. The duties of the post have been narrated in the letter dated 7.12.2006 as also in various paragraphs of the counter affidavit filed by the respondents. The identification of the post under section 32 of the Act of 1995 and Section 3 of Act of 1993 as amended in 1997 is purely within the domain of Executive and the Experts. This Court neither possesses the expertise nor the relevant material to adjudicate upon such questions of fact, except in exceptional circumstances where there is no material to justify the exclusion of the post and the nature of duties and responsibilities attached thereto apparently do not justify such exclusion, which is not so in this case.

The judgment relied upon by the learned counsel for the petitioner does not help his cause as in all the said judgments the post in question had been identified for reservation at some stage or the other whereas in this case till date, said post has not been identified. Moreover, as already observed earlier, identification of the post is necessary for appointment though it may not be for reservation as held by the Supreme Court in the case Ravi Prakash Gupta (supra). In those cases the process of identification of the post had not been undertaken at the relevant time whereas in this case the said process had been undertaken and the Government Order dated 7.5.1999 had already been issued prior to the issuance of the advertisement in question.

In view of the above discussions, I do not find any merit in the writ petition. The same is accordingly dismissed.

Order Date :- 26.09.2014

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