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ALLAHABAD HIGH COURT
S.R. Alam, A.C.J., B.S. Chauhan and Sunil Ambwani, JJ.
Sarika
Versus
State of U.P.
C.M.W.P. 55266 of 2003
Decided On : 24 February 2005
C. M. W. P. 55266 Of 2003
RESERVATION - PHYSICALLY DISABLED PERSONS - JUDICIAL SERVICE - IDENTIFICATION OF POSTS - CONSULTATION WITH HIGH COURT - U. P. PUBLIC SERVICES (RESERVATION FOR PHYSICALLY DISABLED, DEPENDENTS OF FREEDOM FIGHTERS AND EX-SERVICEMEN) ACT, 1993 (U. P. ACT NO. 4 OF 1993) - PERSONS WITH DISABILITIES (EQUAL OPPORTUNITY, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT, 1995 (ACT NO. 1 OF 1996) - U. P. JUDICIAL SERVICE RULES, 2001 - HELD, physically disabled persons are not entitled to claim reservation under Section 3 (1) (ii) of the Act of 1993 as amended in 1997 and 1999, for the posts of Civil Judge (Junior Division) until the requisite identification of posts in question extending the benefit of such reservations. It is not permissible for the State Government to identify the post of Civil Judge (Junior division) by issuing a notification as contemplated under Section 3 (1) (ii) of the Act of 1993, until and unless the High Court is consulted afresh in accordance with the law laid down in Bal mukund Shah (supra ). The Full Court vide its resolutions dated 17. 7. 1993 and 7. 3. 1998, did not have an occasion to deliberate over the reservations for physically disabled persons. These resolutions approving draft of the U. P. Judicial Service Rules, did not give concurrence to the State Government for providing reservation for physically disabled persons. The Division Bench judgment of this Court in Vinod Kumar Rai (supra) has not laid down the correct law.
Fact of the Case:
The petitioner, Sarika claims to be physically disabled person with locomotor disability to the extent of 70%, as she had suffered from polio. She claims herself to be eligible and qualified for the post of Civil Judge (Junior Division), She has relied upon the provisions of U. P. Public services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and ex-Servicemen) Act, 1993, as amended in 1997 (in short U. P. Act No. 4 of 1993), which is applicable to recruitment in, public services in U. P. by direct recruitment.
Finding of the Court:
The State Government is directed to identify Group a and Group b posts in all the services for reservation for physically disabled persons as expeditiously as possible as also the post of civil Judge (Junior Division) after consultation with the High Court.
Issues: Whether Section 3 (1) (ii) of Act, 1993 as amended by the U. P, Act No. XXIX of 1999 entitles the physically handicapped candidate to claim reservation for physically handicapped persons in the posts of Civil Judge (Junior Division) in the absence of the requisite identification of the post in question, extending to it the benefits of such reservation? Whether the State Government has or it. was permissible for it to have identified the post of civil Judge (Junior Division) by issuing a notification as contemplated in Section 3 (1) (ii) of 1993 Act as one of the post for which reservation was to be provided for persons suffering from disabilities (Physically handicapped persons) in view of the resolutions of the Administrative committee dated 8. 12. 1979 and 31. 1. 1981 and the decision of the Court dated 20. 1. 1982, which had been accepted by the State Government? Whether the Full Court vide its resolutions dated 17. 7. 1993 and 7. 3. 1998 can be deemed to have given its concurrence to the State Government for providing reservation for physically handicapped persons in the posts of Civil Judge (Junior Division)? Whether the Division Bench judgment of this Court in the case of Vinod Kumar Rai. v. Public Service Commission, U. P. Allahabad and Ors. , 2002 (2) ESC 143, does not lay down the correct law?
Ratio Decidendi: 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 the duties of a judicial officer.
Final Decision: The writ petition is disposed of accordingly.
( 1 ) IN Vinod Kumar Rai v. Public Service Commission, U. P. , Allahabad, 20o2 (2) ESC 143 (All), a Division Bench of this Court held that the Full Court of the Allahabad High Court in its resolutions dated 17. 3. 1993 and 7. 3. 1998 while approving the draft Rules for making U. P. Judicial Service Rules, 2001, had given consent for reservation in favour of physically disabled persons in recruitment to the judicial service, and thus there is 3% reservation in favour of physically disabled persons in accordance with U. P. Public Service (Reservation for Physically disabled, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (U. P. Act No. 4 of 1993 ). The Division Bench further held that this reservation for physically disabled persons must be read harmoniously with Rule 20 of the U. P. Judicial Service Rules, 2001, which provides that no person should be appointed as member of the service unless he be in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties as a member of the service. The benefit of the reservation could, however, be given to only those persons, who are free from any physical and mental defect which may interfere with efficient performance of their duties if appointed to the judicial service, and this must be certified by the Medical Board set up for this purpose. The Division Bench directed that the total vacancies for the 3% reservation should be advertised together and those who would have been eligible for the post on the relevant time, should be treated as eligible and they can now apply for the same and in. future also 3% reservation for physically handicapped persons should be provided.
( 2 ) IN Sarika v. State of U. P, and Ors. , (Civil Misc. Writ Petition No. 55266 of 2003), a Division bench hearing the matter of recruitment to judicial service of the year 2003, did not agree with the conclusion reached in Vinod Kumar Rais case, and referred the following questions for consideration by a Larger Bench : (1) Whether Section 3 (1) (ii) of Act, 1993 as amended by the U. P, Act No. XXIX of 1999 entitles the physically handicapped candidate to claim reservation for physically handicapped persons in the posts of Civil Judge (Junior Division) in the absence of the requisite identification of the post in question, extending to it the benefits of such reservation? (2) Whether the State Government has or it. was permissible for it to have identified the post of civil Judge (Junior Division) by issuing a notification as contemplated in Section 3 (1) (ii) of 1993 Act as one of the post for which reservation was to be provided for persons suffering from disabilities (Physically handicapped persons) in view of the resolutions of the Administrative committee dated 8. 12. 1979 and 31. 1. 1981 and the decision of the Court dated 20. 1. 1982, which had been accepted by the State Government? (3) Whether the Full Court vide its resolutions dated 17. 7. 1993 and 7. 3. 1998 can be deemed to have given its concurrence to the State Government for providing reservation for physically handicapped persons in the posts of Civil Judge (Junior Division)? (4) Whether the Division Bench judgment of this Court in the case of Vinod Kumar Rai. v. Public Service Commission, U. P. Allahabad and Ors. , 2002 (2) ESC 143, does not lay down the correct law?
( 3 ) WE have heard Sri Ash ok Khare, learned senior Advocate, assisted by Sri Pankaj Kumar tyagi and Ms. Archana Tyagi for petitioners and Sri Sudhir Agarwal, Additional Advocate general for the State. Sri Amit Sthelekar appears for the Registrar General, High Court, allahabad. All the parties have given their consent that the writ petition may also be heard alongwith the reference.
( 4 ) THE brief facts giving rise to the issues involved and to be resolved by this Full Bench are stated as below : "the U. P. Public Service Commission issued an advertisement No. A-2/e-1/2003 inviting applic
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