Manoj Kumar Sahu vs State Of Uttar Pradesh And 5 Others
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Allahabad High Court

Manoj Kumar Sahu vs State Of Uttar Pradesh And 5 Others on 21 April, 2025

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:58707
 
Court No. - 6
 

 
Case :- WRIT - A No. - 21003 of 2024
 

 
Petitioner :- Manoj Kumar Sahu
 
Respondent :- State Of Uttar Pradesh And 5 Others
 
Counsel for Petitioner :- Siddharth Khare,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Manvendra Singh
 

 
Hon'ble Saurabh Shyam Shamshery,J.
 

1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Kauntey Singh, learned counsel for petitioner, Mrs. Shruti Malviya, learned Standing Counsel for State-Respondents and Sri Manvendra Singh, Advocate for Respondents-4 and 6.

2. Petitioner before this Court is undisputedly suffering from Visual disability (30%) and Orthopedic disability (10%) and on basis of a certificate dated 07.06.1995 issued by Chief Medical Officer, Banda, petitioner has taken advantage of reservation and got admitted in Special B.T.C. Course in the year 2009 and successfully passed and thereafter he was appointed as Assistant Teacher on 12.08.2009.

3. It is the case of petitioner that a dispute arose with regard to percentage of disability as there were various complaints that candidates who do not belong to the category of ?disabled persons? have participated in Special B.T.C. Course by getting advantage of reservation.

4. In aforesaid circumstances, a notice dated 27.01.2017 was issued by District Basic Education Officer, Mahoba whereby petitioner?s visual disability was not found satisfied and his salary was stopped with direction to submit reply to the notice.

5. Petitioner thereafter submitted various replies and also approached this Court by way of filing Writ-A No. 37153 of 2017, however during pendency of this writ petition, appointment of petitioner was cancelled vide order dated 04.01.2018 which was followed by order dated 16.01.2018 passed by Principal, District Institute of Education and Training, Mahoba to set aside petitioner?s Special B.T.C. Certificate.

6. Both above orders dated 04.01.2018 and 16.01.2018 were challenged by petitioner by way of amendment in pending writ petition, which was finally disposed of vide order dated 27.11.2018 whereby an opportunity was granted to petitioner to file appeal before Secretary, Basic Education Board, U.P. at Prayagraj.

7. In aforesaid circumstances, petitioner filed an appeal. During proceedings, petitioner?s medical examination was conducted and his disability was found to the extent of 30% (Visual) and 10% (Orthopedic). However, by means of impugned order dated 10.10.2014 Secretary, Board of Basic Education, U.P., Prayagraj has rejected it on ground that extent of petitioner?s disability is lower than the bench mark, i.e., 40% and both disabilities cannot be added for that purpose. Relevant part of impugned order is mentioned hereinafter:

"???? ???? ????? ????? ???? ??? ?????? ???? ???? ?????? ??????? ???? ????? ?? ????????? ?????? ?? ??????? ??? ????? ?? ???? ?????? ????????/12445-46 ?????? 04.10.2019 ??? ????? ?????? ???? ????? ?????? ??????-5 ?? ???? ?????? 387/68-5-2021 ?????? 16 ????? 2021 ?????? ????? ?????????????? ???? ?? ??????? ?? ???? ????? ?????????????? ???? ?????? ????? ???????? ?? ??????? ???? ?????? ????????/??????? ?????/2023/6370-2 ?????? 07.06.2023 ?? ??? ?????? ???????? ??????? ?????? ???? ???? ?????? ????????? ???? ??????? ?? ??? ??? ???????? ????? ?? ??????? ?????? 10.05.2023 ??? ???? ???? ????? ???? ?? ????? ?? ????????? 30 ??????? ??? ?????????? ????????? 10 ??????? ???????? ???? ??? ???

?? ??????? ??? ????????? ?? ?? ??????? ??????? (???? ????, ?????? ??????? ?? ????? ????????) ??????? 1995 ?? ???? 33 ??? ???? ?? ?????? ????????? ???? ??? ??? ????? ???????? " ???????? ?????? ?????, ???????? ??????? ??? ??????? ?????????? ?? ?????????? ?? ???? ?? ??? ???? ??????? ????????? ???? ?????? ?? ??? ??????? ?? ?? ? ??, ?????? ?? ???????? ????????? ?? ??? ??? ????? ?? ???? ??? ?? ?? ??????? ?????????? ?? ?????? ?????????? ?? ??? ??????? ???? ???????-

1- ????? ?? ?? ??????,

2- ????? ????? ?? ?????, ??

3- ??? ????????? ?? ??????????? ???,

???? ?????? ?? ??????? ?? ? ??? ???????? ?????? ???-

(?) ? ??????? ???????? ?? ??? ??? ??????? ???????? ?? ?? ???? ???????? ?????????? ?????? ???????? ???? ????????? ?? ?? ?? ?? ????? ??????? ?? ?????? ??,

????????????? ?????? ?? ?? ??????? ??????? (???? ????, ?????? ??????? ?? ????? ????????) ??????? 1995 ?? ???? 33 ??? ???????? ????????? ?? ????????? ??? ??????? ???? ???????? ?????????? ?????? ???????? ???? ????????? ?? ?? ?? ?? ????? ??????? ?????? ????? ???? ??? ?? ??? ?? ???? ?????? ?? ??? ??????? ?????

???????? ????? ?? ??????? ?????? 10.05.2023 ??? ???? ???? ????? ???? ?? ????? ?? ????????? 30 ??????? ??? ?????????? ????????? 10 ??????? ???????? ???? ??? ??, ????? ?????? ???? ?? ?? ???? ???? ????? ???? ?? ????????? ???? 33 ??? ???????? ????????? ??? ?? ???? ??? ?? ????? ???????? ????????? ???? ??? ?? ?? ???????? ?? ?? ???? ???? ????? ???? ?????? ??? ????????? ??? ?????? ?? ??? ??????? ???? ??? ?? ?? ?? ?????? ???? ?? ??????? ???????? ????? ?? ??????? ?????? 10.05.2023 ??? ???? ???? ????? ???? ?? ????? ?? ????????? 30 ??????? ??? ?????????? ????????? 10 ??????? ???????? ???? ??? ??? ???? ????? ?????????, ??????? 1995 ?? ??????? ?? "?? ??? ???????? ??? ??? ??????? ???????? ?? ?? ???? ???????? ?????????? ?????? ???????? ???? ????????? ?? ?? ?? ?? ????? ??????? ?? ?????? ??" ?? ?????? ????? ??????? ????????? ?? ????? ???? ???? ???

??? ???? ????????, ???????? ??? ????? ?????? ?????? 37153/2017 ???? ????? ????, ???? ??????, ????? ? ???? ??? ????? ???? ?????? 27.11.2018 ???? ???? ????? ????? ???? ??? ?????? ????, ????? ? ????? ?????????, ????-????? ?????? ???????? ??????????? ??? ?????? ?????? ???? ??? ????????????? ????????? ???? ???? ???"

8. Learned Senior Advocate appearing for petitioner submits that there is no dispute about certificate issued way back in the year 1995 and petitioner has participated in Special B.T.C. Course after taking benefit of reservation for persons suffering from disability on basis of said certificate and successfully passed, which was the basis for his appointment as Assistant Teacher way back in the year 2008.

9. Learned Senior Advocate further submits that there is no bar that multiple disabilities can not be added and since petitioner has touched bench mark of 40% disability, therefore, at this belated stage, i.e., after more than 17 years, his Special B.T.C. Certificate cannot be cancelled and consequently his appointment on the post of Assistant Teacher also cannot be cancelled.

10. Learned Senior Advocate also referred the ?Rights of Persons With Disabilities Act, 2016? whereby ?Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995? was repealed and he refers Section 34 that now multiple disabilities are included specifically. For reference said Section 34 is reproduced hereinafter:

?34. Reservation.?(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. Each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:?

(a) blindness and low vision;

(b) deaf and hard of hearing;

(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

(d) autism, intellectual disability, specific learning disability and mental illness;

(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.

(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:

Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.

(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.?

11. Learned Senior Advocate also refers a judgment passed by a Division Bench of this Court in Basic Shiksha Adhikari District Firozabad vs. Smt. Anusuiya Sharma and others, 2024:AHC:184530-DB and relevant paras thereof are reproduced hereinafter:

?22. By relying on such plea, the State impliedly but necessarily admitted that the said certificate was in fact issued by Chief Medical Officer, Firozabad. The fact that that certificate may have been issued on the strength of medical examination by two and not three doctors, pales into insignificance at this late stage, inasmuch as even on the last medical examination conducted by the State authorities it was opined that the original petitioner did suffer a locomotor disability.

23. Therefore, as a matter of fact, it cannot be denied that the original petitioner continued to suffer from physical disability. Only, the extent of said disability is being disputed. Since the last assessment has been made nine years after grant of appointment and no material whatsoever has been brought on record to establish that it is a case where such disability may never have reduced, it may not survive for us to speculate the extent of disability suffered by the original petitioner when she first secured public employment.

24. The only dispute that the State may claim to exist is, the degree of that locomotor disability is not 50% but only 20%. We are equally not inclined to act on that plea as that discrepancy has arisen after many years and not at the relevant time. It is admitted to the State that the first Disability Certificate was issued in the year 2006. On its strength the original petitioner was granted training and later appointment in the year 2009. Though the learned Chief Standing Counsel may be right in his contention that the State had initiated action in the year 2010, at the same time it cannot be overlooked that the last Medical Examination of the original petitioner took place at the same time on 02.08.2018. In any case, in absence of allegation of fraud committed, it is too late to act on such discrepancy, the original petitioner having worked for long years, not by committing any fraud.

25. Also, we are mindful that the present proceeding is not an appeal before a higher forum but an intra- Court appeal- i.e. an appeal on principle. Once discretionary relief has been granted by a learned single judge in exercise of extra-ordinary jurisdiction of the Court under Article 226 of the Constitution of India and the original petitioner has remained in employment from 2009, we find absolutely no good ground to offer interference with the order of the learned single judge to reverse the discretion exercised by the Court. Another view that may be taken on the same facts may not prompt us to act, at present. Writ jurisdiction having been exercised on fair appraisal of facts and law and discretionary relief having been granted, we find no merit to interfere with the order of the learned single judge.?

12. Learned counsel appearing for respondents refers paragraphs 10, 12, 16 and 20 of counter affidavit, which are produced hereinafter:

?10- That in reply to the contents of para-9 of the writ petition are not admitted hence denied. It is further submitted that the Hon?ble Apex Court vide its order dated 03.02.2016 and Govt. order dated 13.05.2016 , it was directed to verify the Handicap Certificates of the Special B.T.C. trained candidates by the State Medical Board, Lucknow and the handicap certificate of the petitioner has not been verified by the Committee of Medical Board, therefore, the handicap certificate issued in favour of petitioner on 07.06.1995 is not valid.?

?12- That the contents of para-12 of the writ petition need no comments. It is further submitted that the appointment of the Special B.T.C. trained candidate was made with the condition that if the educational training, handicap certificate will be found forged in the enquiry their candidature will be cancelled from the date of their initial appointment.?

?16- That the contents of para 26 of the writ petition need no comments. It is further submitted that the Chief Medical Officer, Lucknow sent a report vide letter dated 21.09.2016 to the effect that the handicap certificate was not verified and in pursuance thereof the order dated 04.01.2018 has been passed against the petitioner.?

?20- That the contents of para-45 of the writ petition are not admitted as stated. It is further submitted that in the meeting of District Level Committee held on 03.11.2017 it was decided that under the provisions of Govt. Order dated 13 May, 2016 after cancellation of the training certificate the petitioner may be removed from service.?

13. However, they are not able to deny that even till date on basis of recent medical examination petitioner?s disability was found to the extent of 40%, i.e., 30% (Visual) and 10% (Orthopedic).

14. I have heard learned counsel for parties and perused the material available on record.

15. The facts, as referred above, not under dispute are, that petitioner on basis of Special B.T.C. Certificate, wherein he had taken admission under the quota meant for disabled persons on basis of a disability certificate issued in the year 1995, was appointed as Assistant Teacher in 2008 and his appointment as well as Special B.T.C. Certificate was cancelled in the year 2018 and appeal thereof is now rejected in the year 2024.

16. As referred above, even on basis of recent medical examination petitioner?s disability is still remained, i.e., he is suffering disability by 30% (Visual) and 10% (Orthopedic). Therefore, it cannot be a case of forged medical certificate.

17. Now the only issue left for consideration is, whether under the earlier Act, i.e., ?Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995?, benefit of multiple disabilities can be granted to petitioner or not, i.e., disabilities of two forms, Visual and Orthopedic.

18. For more than a decade no dispute was raised and petitioner after successfully completing Special B.T.C. Course was appointed as Assistant Teacher and worked as such. Therefore, the Court has to consider, whether on basis of such allegation, petitioner?s appointment can be protected or not. In this regard Court takes note of judgment passed by this Court in Smt. Anusuiya Sharma (supra) that since there is no allegation of forgery, such appointment can be protected.

19. In above background, Court also takes note of above referred Section 34 of Act of 2016 which takes note of multiple disabilities also. Therefore, though the said Act of 2016 is not strictly applicable in the case of petitioner, still benefit of such definition and inclusion of multiple disabilities can be taken note of for the purpose of adjudication of present case, especially on basis of two factors, i.e., petitioner was appointed way back in the year 2008 and he is still suffering from nature of disabilities.

20. Therefore, on both above grounds, i.e., petitioner has already served for about 10 years as well as he is suffering from multiple disabilities which is now included specifically in the Act of 2016, this Court is of the considered opinion that advantage can be given to petitioner.

21. In the result, writ petition is allowed. Impugned orders dated 04.01.2018; 16.01.2018 and 10.10.2024 are hereby set aside. Respondents are directed to allow petitioner to join his services. However, the period from cancellation of appointment of petitioner till joining of petitioner, on basis of principle of ?no work no pay?, petitioner is not entitled for salary but for the purpose of continuity of service, the above period will be counted.

Order Date :- 21.4.2025

AK