Court No. - 2
Case :- WRIT - A No. - 11127 of 2011 Petitioner :- Sushil Rai Respondent :- State Of U.P. And Others Counsel for Petitioner :- Sanjay Kumar Rai,Ashok Kumar,Ashok Kumar Rai,K.M. Asthana,P.K. Tiwari,Shri Ashok Khare Counsel for Respondent :- C. S. C.,A.K. Yadav,B.N.Singh,Lalta Prasad,P.K. Singh,Ramesh Kumar
Hon'ble Suneet Kumar,J.
Heard Sri Sushil Rai (in person) and Sri Satyaveer Singh, learned counsel appearing for the respondent.
Petitioner by means of the instant writ petition seeks the following reliefs:
"i) a writ order or direction in the nature of certiorari quashing the select list notified by the respondents for the post of Assistant Teacher in LT Grade for Physical Education under the category of Physically Handicapped and to publish a revised select list after taking into account the identification of vacancies for individual category of disability as notified by the State Government;
ii) a writ order or direction of a suitable nature commanding the respondents to notify the name of three candidates under the physical disability category of ear/speech disability and to grant appointment on such post."
The third respondent-UP Secondary Education Services Selection Board, Allahabad (hereinafter referred to as "the Board") issued advertisement No. 1 of 2009 inviting candidates for teaching post in different subjects for intermediate college. Applicant applied for Physical Education, LT-Grade teacher, under the unreserved category (UR) and claimed reservation being physically handicapped. Upon conducting the written examination followed by interview, 233 posts were filled up by male candidates and 24 by female candidates. It is not in dispute that 3% reservation for physically handicapped is provided under UP Public Services (Reservation for Dependent of Freedom Fighter, Physically Handicapped and Ex-Servicemen) Act, 1993. Accordingly, 7 posts were to be filled up by the persons with physical disability:
(i) hearing impairment;
(ii) blindness or low vision impairment; and (ii) loco-motor disability or cerebral palsy.
The Board in view of 1% horizontal reservation provided for each category adjusted two candidates with hearing impairment. Out of 7 candidates adjusted under physically handicapped quota, 4 belong to unreserved category (UR) and 3 candidates belongs to OBC category. The private respondents no. 4, 5 & 6 are physically handicapped OBC candidates; respondent no. 4 is visually impairment, respondents no. 5 & 6 are with loco-motor disability. Petitioner is not aggrieved by their selection as his disability is of hearing impaired and he cannot be adjusted in OBC quota.
It is not in dispute that the last selected candidate under unreserved category (UR) obtained 415.60 marks and two candidates with hearing impairment were adjusted in the merit list (UR) of selected candidates. The adjusted candidates obtained 378.40 and 376.80 marks respectivelly. Petitioner, admittedly, scored 364.20 marks and being lower in marks to the adjusted candidates under the category of hearing impairment was not adjusted in the 1% quota of that category. The averments made in para-4 and para-5 of the supplementary counter affidavit filed on behalf of the Board reads thus:
“4. That as directed by the Hon'ble Court dated 12.01.2016, it is submitted that the contents raised in paragraph 10 of the rejoinder affidavits are incorrect as stated and in reply thereto it is submitted that 257 vacancies for the post of Assistant Teachers in Physical Education was advertised by means of advertisement no.01/2009. It is stated that out of total 257 vacancies, 233 vacancies were related to 01 category i.e. for male and 24 vacancies were related to 02 category i.e. female institution. Before commencement of selection proceeding, verification of existing vacancies took place, whereby, out of 233 vacancies, 225 vacancies for male and 21 vacancies out of 24 vacancies against female institution were were available, against which final selection were held.
The petitioner belongs to male category and has applied under horizontal reservation for relief as hearing impairment. It is evident to mention here that 3% relief is provided under horizontal reservation, out of which 1% is provided for the candidates of low vision, 1% for hearing impairment and 1% for loco motor disability. It is relevant to mention here that the benefit of horizontal reservation was provided to the candidates related to low vision hearing impairment & loco motor disability as per Government Order. In the instant case out of 07 posts, 3 candidates related to low vision were considered whose candidature stands at serial no. 1, 4 & 7 and 2 candidates related to hearing impairment stands at serial no. 2 & 5 and 2 candidates related to loco motor disability stands at serial no. 3 & 6 in the select list. The correct roll no. of all 7 candidates have been mentioned in paragraph 10 of the counter affidavit. The petitioner has contended that a candidate bearing roll no. 021402176 have been selected but his name has not been disclosed. In reply to the said averment, it is evident to mention that no candidate has been selected bearing such roll no.
5. That the selection of all 7 candidates out of 225 posts have been held, out of which 3 candidates were selected for low vision, 2 candidates for hearing impairment and 2 candidates under loco motor disability which is in consonance with the Reservation Act. The petitioner have attained 364.20 merit as a candidate under hearing impairment which is lesser than 376.80 i.e. cut off in the category of hearing impairment as such his candidature has not been considered in the said category.”
The factual matrix as brought on record has not been disputed by the petitioner. He, however, submits that candidates with lesser marks belonging to the physically handicapped category have been adjusted, thereby, ousting the petitioner. On specific query, petitioner admits that his candidature would be considered in the one percent quota reserved for persons with hearing disability and not in the quota reserved for visually impaired or loco-motor disability.
In view thereof, since the petitioner scored lower marks than the candidates adjusted, writ petition being devoid of merit, is accordingly, dismissed .
It is clarified that no other point or ground was pressed. No cost.
Order Date :- 19.12.2018 Mukesh Kr.