State Of U.P. Thru. Prin.Secy. ... vs Sukh Lal Sharma
2023 Latest Caselaw 6492 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 99 of 2023
 

 
Appellant :- State Of U.P. Thru. Prin.Secy. Deptt. Of Agriculture U.P. Civil Secrt. Lko. And Others
 
Respondent :- Sukh Lal Sharma
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Rishi Raj
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

(C.M.Application No. 1 of 2023)

Having heard the learned counsel for the parties and having gone through the averments made in the application seeking condonation of delay, we are satisfied that the delay has sufficiently been explained.

Accordingly, the application is allowed and the delay in filing the Special Appeal is condoned.

(Order on memo of appeal)

Heard Sri Anil Kumar Singh Visen, learned State Counsel representing the appellants-State authorities and Sri Rishi Raj, learned counsel representing the respondent-petitioner.

By instituting the proceedings of this Special Appeal under Chapter VIII Rule 5 of the Rules of the Court, the appellants-State authorities have questioned the legality and validity of the judgment and order dated 29.08.2022, passed by the learned Single Judge whereby Writ-A No.1253 of 2009 filed by the respondent-petitioner has been allowed and the appellants-State authorities have been directed to appoint him on the post of Accountant against 3% reservation quota meant for differently abled persons within a period of six weeks.

Learned Single Judge while allowing the writ petition has quashed the order which was under challenge therein, namely, the order dated 12.12.2008, passed by the Director, Agriculture, U.P. rejecting the claim of the respondent-petitioner for his appointment against the post of Accountant.

Before delving into the rival submissions made by the learned counsel for the parties, we may note certain facts which are relevant for the purpose of appropriate adjudication of the issue involved in this Special Appeal. On 07.09.2001, an advertisement was issued for recruitment against the post of Accountants. The respondent-petitioner fulfilling the requisite minimum eligibility criteria for seeking appointment to the post of Accountant submitted his application pursuant to the advertisement dated 07.09.2001 and he was also subjected to selection, however, in the final select/merit list, his name was not mentioned. In fact the respondent-petitioner has been claiming reservation under the policy of the State Government which specifically provide for horizontal reservation to differently abled persons in the matter of recruitment to the State services.

The respondent-petitioner approached the Commissioner, Handicapped Persons, U.P. who also wrote a letter to the Director, Agriculture at the relevant point of time to consider the prayer of respondent-petitioner to provide reservation to the differently abled persons in the selection in question.

Once the selection process was completed and respondent-petitioner was not selected, he instituted Writ Petition No. 2348(SS) of 2003 with the prayer that the appellants-State authorities may be directed to appoint him on the post of Accountant. The said Writ Petition was finally decided by the learned Single Judge by means of judgment and order dated 14.08.2008, wherein reference of the judgment of Hon'ble Supreme Court in the case of Bhudev Sharma Vs. District Judge, Bulandshahar and another, reported in (2008) 1SCC 233 was made and on that basis a direction was issued to the State authorities to consider the claim of the respondent-petitioner for appointment against existing vacancies. Learned Single Judge while passing the said judgment and order dated 14.08.2008 has also given a finding that the respondent-petitioner was the sole applicant in the physically handicapped category and as such in view of the judgment of Hon'ble Supreme Court in the case of Bhudev Sharma (supra), he was entitled to be considered for appointment against the said reservation quota.

The matter was, however, again considered by the Director, Agriculture and in compliance of the judgment dated 14.08.2008 passed by learned Single Judge, an order was passed on 12.12.2008 by the Director, Agriculture, wherein it was found that the claim of the respondent-petitioner was not in accordance with rules. By passing the said order dated 12.12.2008, claim of the respondent-petitioner was denied by the Director, Agriculture by giving two reasons and the reasons are (1) that at the time of issuance of the advertisement on 07.09.2001, nothing was indicated about the reservation to be provided for physically handicapped category candidates and (2) assertion by the respondent-petitioner to the effect that he was the sole candidate who applied in the category of physically handicapped person, was not correct; rather there were several candidates and amongst the General Category Candidates who were differently abled, the name of the respondent-petitioner was mentioned at Serial No. 46 of the select/merit list prepared on the basis of selection held pursuant to the advertisement dated 07.09.2001. On these two counts the claim of the respondent-petitioner was rejected.

The order dated 12.12.2008 was challenged by the respondent-petitioner by filing Writ-A No.1253 of 2009 which has been allowed by the learned Single Judge by means of the judgment and order dated 29.08.2022 which is under challenge before us in this Special Appeal.

Learned counsel for the appellants has submitted that the entire edifice of the claim of the respondent-petitioner was based on incorrect assertion that he was the sole candidate who had applied for appointment as General Category Candidate claiming reservation applicable to differently abled persons.

Drawing our attention to Paragraph 2(iii) of the counter affidavit filed by the State authorities before the learned Single Judge, it has been stated by learned counsel for the appellants that in the said paragraph of the counter affidavit, a categorical statement was made on behalf of the State-authorities that respondent-petitioner had pleaded wrong fact that he was the sole candidate in the General Category claiming reservation available to differently abled persons. Learned counsel for the appellants has further stated that in the counter affidavit filed before the learned Single Judge, it was specifically pleaded that in the final merit list prepared on the basis of selection held pursuant to the advertisement dated 07.09.2001, there were 48 general category candidates who were claiming reservation available to differently abled persons and in the said merit list name of the respondent-petitioner was found mentioned at Serial No.46 and accordingly even if it is presumed that one post out of 29 posts advertised was to be filled in from amongst reserved category candidates belonging to physically handicapped category persons, the respondent-petitioner could not have been offered appointment.

Our attention has also been drawn to the similar averments made in Paragraph-8 of the counter affidavit filed by the State authorities before the learned Single Judge wherein it was stated that benefit of judgment of Hon'ble Supreme Court in the case of Bhudev Sharma (supra) is not available to the respondent-petitioner for the reason that the facts of the said case were different from the facts of the present case.

On the basis of the aforesaid submission, it has, thus, been argued by the learned counsel for the appellants that learned Single Judge has completely ignored the aforesaid assertion and has passed the impugned judgment and order by assuming that the respondent-petitioner was the sole candidate who had applied for claiming reservation available to differently abled persons. It has also been argued by learned counsel for the appellants that even in the earlier Writ Petition, namely, Writ Petition No. 2348(SS) of 2003, a counter affidavit was filed by the State-authorities wherein it was pleaded that the name of the respondent-petitioner finds mentioned at Serial No. 46 in the merit list which was prepared by the Selection Agency and accordingly he was not entitled to claim appointment against the post in question.

The submission of Sri Anil Kumar Singh Vishen, learned counsel representing the appellants-State authorities, thus, is that the findings recorded by the learned Single Judge in his earlier judgment and order dated 14.08.2008 are in ignorance of the aforesaid pleadings and contrary to the record.

Sri Rishi Raj, learned counsel for the respondent-petitioner has, however, submitted that it is for the first time that the State authorities pleaded that the name of the respondent-petitioner was at Serial No.46 of the General Category Candidates claiming reservation available to the differently abled persons in the proceedings of the Writ-A No.1253 of 2009 before the learned Single Judge. He has also stated that such a volte-face or somersault being taken by the State-authorities is not permissible and accordingly it has to be presumed that the respondent-petitioner was the sole candidate claiming reservation available to the differently abled persons. In such a situation, the submission is that the judgment of Hon'ble Supreme Court in the case of Bhudev Sharma (supra) will have full application to the present case and thus the judgment passed by the learned Single Judge, which is under appeal herein, does not call for any interference by this Court in this Special Appeal, which is liable to be dismissed.

We have given our anxious consideration to the rival submissions made by learned counsel appearing for the respective parties.

For denying consideration of the claim of the respondent-petitioner for his appointment against the quota meant for differently abled persons, the State cannot take refuse in saying that at the time of issuance of advertisement dated 07.09.2001, no provision for providing reservation available to differently abled persons was made. If such stipulation was missing in the advertisement, the same, in our considered opinion, is not only against the reservation policy of the State Government itself, but is also in derogation of the provisions contained in Section 3 of the U.P. Public Services (Reservation for Physically Handicapped Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 as also against the mandate of Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

However, having observed as above, what we need to determine in this case is as to whether the respondent-petitioner was entitled to the benefit of reservation available to the differently abled persons in the light of the judgment of Hon'ble Supreme Court in the case of Bhudev Sharma (supra).

Admittedly, Hon'ble Supreme Court in the said case of Bhudev Sharma (supra) has observed that since there was no other physically handicapped persons who applied, the appellant therein was entitled to the post reserved for physically handicapped persons. Accordingly, for application of the dictum of Hon'ble Supreme Court in the case of Bhudev Sharma (supra) what is of primacy is that there has to be sole applicant which in this case is missing.

Learned Single Judge while delivering his judgment in the earlier writ petition filed by the respondent-petitioner on 14.08.2008 appears to have missed the pleadings available in the counter affidavit filed by the State-authorities during the proceedings of Writ Petition No.2348(SS) of 2003. We have already discussed that in the counter affidavit, the State-authorities had pleaded that there were 48 General Category Candidates who are claiming reservation available to differently abled persons and in the said list of 48 persons, in the order of merit the name of the respondent-petitioner finds mentioned at Serial No.46. It, thus, clearly appears that the judgment and order dated 14.08.2008 was passed by the learned Single Judge in ignorance of the aforesaid pleadings.

We also have noticed the pleadings available on record whereby while filing counter affidavit, the State-authorities in Writ-A No.1253 of 2009 have clearly pleaded that the respondent-petitioner's assertion that he was the sole candidate claiming reservation available to differently abled persons, is not correct. In support of the said submission, State-authorities while filing counter affidavit had also enclosed the list of 48 General Category candidates who were claiming reservation available to the differently abled persons.

We have no reason to discard the said list which is available before us on this Special Appeal at page 46.

The submission of learned counsel for the respondent-petitioner to the effect that the appellants cannot be permitted to take a stand different from the stand taken earlier on the basis of which judgment dated 14.08.2008 was rendered by the learned Single Judge, in our considered opinion, is misconceived for the reason that even during the proceedings of the earlier writ petition a plea was taken by the appellants-State-authorities that the name of the respondent-petitioner in the merit list of 48 candidates of the General Category claiming reservation available to the differently abled persons was at Serial No. 46.

It is not a case where the State-authorities took this plea for the first time before the learned Single Judge in Writ-A No.1253 of 2009. The Director, Agriculture even while passing the order dated 12.12.2008 which was under challenge before the learned Single Judge has observed that in the list of General Category Candidates claiming reservation available to the differently abled persons, the respondent-petitioner's name is at Serial No. 46, that is to say that at least in the order of merit there were 45 other such candidates over and above the respondent-petitioner who were claiming such reservation.

In view of the aforesaid discussions, we are of the considered opinion that even if we assume that reservation was to be made available to the differently abled persons irrespective of the fact that such stipulation in the advertisement dated 07.09.2001 was missing, on account of the merit position of the respondent-petitioner amongst the General Category Candidates claiming reservation available to the differently able persons, he could not be offered any appointment against the post in question.

From a perusal of the judgment and order dated 29.08.2022, passed by the learned Single Judge which is under challenge before us in this Special Appeal, what we find is that the aforesaid relevant aspects of the matter appears to have escaped the attention of the learned Single Judge.

Accordingly, the Special Appeal is allowed and the judgment and order dated 29.08.2022, passed by the learned Single Judge in Writ-A No.1253 of 2009 is hereby set aside.

There will be no order as to costs.

Order Date :- 1.3.2023

Sanjay