# Jitendra Bahadur Singh v. State Of U.P. & Ors - **Citation:** (2016) 7 ILRA 737 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-19 - **Bench:** Pradeep Kumar Singh Baghel - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-bahadur-singh-v-state-of-u-p-ors-44206 - **Pages:** 6 ## Headnote Service Law-Selection-Reservation for Persons with Disabilities-Sub-categories-Eligibility- Candidate suffering from dual disability (one leg and one arm affected-OL & OA) cannot be denied selection merely on ground that no combined sub-category prescribed-Where candidate applied under one recognized sub-category (OL) and possesses valid medical certificate disclosing disability-Non-consideration despite securing marks higher than last selected candidate held arbitrary and unjustified. Selection-Merit-Arbitrariness- Petitioner securing higher marks than last selected candidate in physically handicapped category entitled to consideration-Rejection on hyper-technical ground of classification unsustainable-Selection process must adhere to fairness and non-arbitrariness. Precedent-Per incuriam-Concept-Applicability- Judgment cannot be treated as per incuriam merely for non-consideration of an irrelevant statutory provision-Doctrine applies only where decision rendered in ignorance of binding precedent or relevant statutory provision-Earlier Division Bench decision binding and followed. Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995-S. 32-Scope- Provision enabling identification of posts for reservation does not justify exclusion of otherwise eligible candidate-Once categories demarcated, candidate cannot be denied appointment on artificial classification not contemplated in advertisement. In Result- Writ petition allowed; respondents directed to treat petitioner as successful candidate under OL category and proceed for appointment. Cases cited Suryamani v. State of U.P. and others Dhruv Kumar Singh v. State of U.P. and others State of U.P. and another v. Synthetics and Chemicals Ltd. and another V. Sudeer v. Bar Council of India and another K.P. Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate ## Text 7 All. Jitendra Bahadur Singh Vs State Of U.P. & Ors. 737 ----------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 19.07.2016 BEFORE THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J. Writ A No.- 6730 Of 2016 Jitendra Bahadur Singh ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioner: Santosh Kumar Shukla Counsel for the Respondents: C.S.C., Nisheeth Yadav Service Law-Selection-Reservation for Persons with Disabilities-Sub-categories-Eligibility- Candidate suffering from dual disability (one leg and one arm affected-OL & OA) cannot be denied selection merely on ground that no combined sub-category prescribed-Where candidate applied under one recognized sub-category (OL) and possesses valid medical certificate disclosing disability-Non-consideration despite securing marks higher than last selected candidate held arbitrary and unjustified. Selection-Merit-Arbitrariness- Petitioner securing higher marks than last selected candidate in physically handicapped category entitled to consideration-Rejection on hyper-technical ground of classification unsustainable-Selection process must adhere to fairness and non-arbitrariness. Precedent-Per incuriam-Concept-Applicability- Judgment cannot be treated as per incuriam merely for non-consideration of an irrelevant statutory provision-Doctrine applies only where decision rendered in ignorance of binding precedent or relevant statutory provision-Earlier Division Bench decision binding and followed. Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995-S. 32-Scope- Provision enabling identification of posts for reservation does not justify exclusion of otherwise eligible candidate-Once categories demarcated, candidate cannot be denied appointment on artificial classification not contemplated in advertisement. In Result- Writ petition allowed; respondents directed to treat petitioner as successful candidate under OL category and proceed for appointment. Cases cited Suryamani v. State of U.P. and others Dhruv Kumar Singh v. State of U.P. and others State of U.P. and another v. Synthetics and Chemicals Ltd. and another V. Sudeer v. Bar Council of India and another K.P. Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate (Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.) 738 INDIAN LAW REPORTS ALLAHABAD SERIES 1. The petitioner has instituted this writ proceeding for issuance of a direction upon the respondent authorities to appoint him on the post of Uttar Pradesh Subordinate Agriculture Services, Grade-III (Technical Assistant Group 'C') under the general/ physically handicapped category within a stipulated period. 2. A brief reference to the factual aspects would suffice. 3. The Public Service Commission Uttar Pradesh, Allahabad (for short, the "Commission") has issued an advertisement on 22nd October, 2013 calling applications from the candidates for appointment to the posts of Uttar Pradesh Subordinate Agriculture Services, Grade-III (Technical Assistant Group 'C'), which is a Group 'C' post. The advertisement in question indicates that a total number of 6628 posts were advertised, out of which 253 posts have been identified for the physically handicapped persons. The petitioner, who is a differently-abled person, made his application in pursuance of the said advertisement. The petitioner appeared in the preliminary test and qualified it. Later on, he appeared in the written test, which was held on 01st May, 2015. The petitioner qualified the written test also and he was issued a call letter for interview, which he faced. It is stated that the petitioner has secured 245 marks, but he has not been selected. 4. The grievance of the petitioner is that he has not been selected on totally non-existent ground that his one leg and one arm are affected. 5. It is stated that in the physically handicapped category the cut off marks was 160 and the petitioner has secured 245 marks, thus he was entitled for selection. When the petitioner came to know that his marks is much higher than that of the last selected candidate under the physically handicapped category i.e. 160 marks, he moved an application on 04th September, 2015 before the respondents but no decision was taken thereon. It is further stated that the Medical Board headed by the Chief Medical Officer, Varanasi has examined the petitioner and on 27th May, 2008 it had issued him a certificate, which is on the record as annexure-15 to the writ petition. The certificate indicates that the petitioner is suffering from the post traumatic stiffness and there is stiffness in right hip, knee joint and right elbow. There is no dispute about the medical certificate submitted by the petitioner. 6. A counter affidavit has been filed on behalf of the respondents-Commission. The stand taken by the respondents is that a requisition was sent to the Commission on 20th August, 2014 for the said posts and the State Government has demarcated the disability for the physically disabled persons in sub-categories of OL, OA, PD & PB and the number of posts, which have been demarcated for each category of disability, has been mentioned in the advertisement. It is stated that in the said demarcation the total number of 253 posts, reserved for physically handicapped, has been distributed amongst physically handicapped persons in the following manner: 1. PB (Partially Blind) ---- 85 2. PD (Partially Deaf)---- 85 7 All. Jitendra Bahadur Singh Vs State Of U.P. & Ors. 739 3. OL (One Leg Affected)--- 42 4. OA (One Arm Affected)--- 41 7. It is stated that the petitioner in his form has mentioned that he belongs to OL category. A copy of the application form of the petitioner is on record along with the counter affidavit as Annexure-CA-3. It is stated that at the time of preparation of result when the certificates were duly examined by the Doctors then it was found that the petitioner falls under the category 'OL + OA' jointly and there was no such sub-category for 'OL + OA' demarcated in the requisition dated 20th August, 2014 and for the said reason, the petitioner, who falls in the general category, has not been selected. 8. In the rejoinder affidavit the petitioner has denied the said fact. The petitioner has reiterated the stand taken in the writ petition. With regard to the statement made in the counter affidavit that 'OL & OA' was not demarcated, in paragraph-6 of the rejoinder affidavit the petitioner has stated that the categories OL & OA have been clearly demarcated in the advertisement. It is stated that the candidates, who have secured lesser marks i.e. 164, have been appointed, whereas the petitioner having secured 245 marks has been declared unsuccessful. 9. Learned counsel for the petitioner has relied on a judgement of a Division Bench of this Court in the case of Suryamani v. State of U.P. and others, Writ-A No. 60634 of 2015, decided on 07th December, 2015. 10. I have heard Sri S.K. Shukla, learned counsel for the petitioner, learned Standing Counsel and Sri Nisheeth Yadav, learned counsel for the Commission. 11. Learned counsel for the petitioner Sri S.K. Shukla submits that there is no dispute with regard to medical certificate submitted by the petitioner which indicates that the petitioner falls under the OL & OA category. The advertisement clearly prescribes OL, OA, PB & PD subcategories and the posts have been demarcated among the said sub-categories. It is submitted that the facts of the present case and that of Suryamani (supra) are identical and similar. In the said case also, the sub-category of the petitioner therein was OL & OA. In the application form he had only submitted that he belongs to OL sub-category, however, along with the application form he had submitted a certificate, wherein both the disabilities i.e. OL & OA were mentioned. The Division Bench of this Court has considered the said issue and has recorded its finding in the following terms: "Issue that has been raised is that, in the present case, certificate that has been so appended by petitioner and produced by him shows that his one leg and one arm (O.L. & O.A.) was not functioning. However in the declaration form that has been given by him, one leg was mentioned as physically affected. Petitioner during the course of hearing, in the prescribed format, Performa V has produced certificate dated 26.11.2015 issued by Medical Board, Basti wherein certificate has been issued, certifying that only one leg effected." 740 INDIAN LAW REPORTS ALLAHABAD SERIES 12. Learned counsel for the Commission Sri Nisheeth Yadav submits that the judgement of Suryamani (supra) is per incuriam as the Court has not considered the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, the "Act, 1995"). It is further submitted that under the said Act it is the State Government which has the power to demarcate and identify the physical disabilities. In the present case, no dual disability has been demarcated by the State Government. Hence, the petitioner's selection is invalid. No other submission has been made. Sri Yadav has relied on a judgement of a Division Bench of this Court in the case of Dhruv Kumar Singh v. State of U.P. and others, Writ-A No. 67780 of 2015, decided on 21st December, 2015, a copy of which has been filed along with the counter affidavit as annexure-4 to the counter affidavit. 13. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record. 14. It is a common ground that the petitioner is a differently-abled person. In response to the advertisement, he had submitted his application form as well as a medical certificate. The medical certificate is on the record which clearly indicates that his one leg and one arm are affected. This fact clearly shows that there was no misrepresentation on the part of the petitioner. He has declared himself that he has dual disability. The submission of learned counsel for the petitioner is that the petitioner has secured 245 marks and the last selected candidate under the physically handicapped category has secured 165, therefore, his non-consideration on the ground that he has dual disability is unjustified and arbitrary. I find that the submission of learned counsel for the petitioner is well founded. 15. Insofar as the submission of learned counsel for the Commission that the judgement of the Division Bench of this Court in Suryamani (supra) is per incuriam is concerned, the same Division Bench of this Court has considered the said judgement in another case in Dhruv Kumar Singh (supra), wherein no submission was made on behalf of the Commission that the earlier judgement of the Court in Suryamani (supra) is per incuriam. 16. Law in respect of per incuriam has been considered by the Supreme Court. The Court may in this regard gainfully refer to the decision of the Supreme Court in the case of State of U.P. and another v. Synthetics and Chemicals Ltd. and another, (1991) 4 SCC 139. The relevant part of the judgement is extracted hereunder: "40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.1). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey2 this Court while pointing out the procedure to be followed when conflicting decisions are placed before 7 All. Jitendra Bahadur Singh Vs State Of U.P. & Ors. 741 a bench extracted a passage from Halsbury' Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding." 17. The Supreme Court in V. Sudeer v. Bar Council of India and another, (1999) 3 SCC 176, has held that a non-consideration of an irrelevant provision can not make a decision per incuriam. Relevant part of the judgment reads as under: "26. ....Shri Rao, learned Senior Counsel for the respondent-Bar Council of India tried to salvage the situation by submitting that the said decision was per incuriam on the ground that Section 24(3)(d) was not noticed. We have already held that Section 24(3)(d) is the provision which permits the Bar Council of India by exercise of the rule-making power to make an otherwise ineligible person eligible for enrolment and does not act in the reverse direction to make an otherwise eligible person ineligible. Once that conclusion is reached, Section 24(3)(d) becomes totally irrelevant for deciding the question whether the Rule impugned before the three-Judge Bench in that case could have been sustained by the Bar Council of India by taking resort to Section 24(3)(d). Non-consideration of such irrelevant provision, therefore, cannot make the ratio of the decision in the aforesaid case per incuriam..." 18. Recently the Supreme Court has considered the concept of per incuriam in K.P. Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate, (2015) 4 SCC 1. 19. In the present case the learned counsel for the respondents submits that earlier judgment is per incuriam because the Division Bench did not consider Section 32 of the Act, 1995. Section 32 of the Act, 1995 is an enabling provision. It provides that appropriate Government can identify the posts which can be reserved. In the case at hand, the State Government had already taken that exercise, therefore, in my view the submission of learned counsel is untenable. 20. From the law laid down by the Supreme Court mentioned above it is evident that the judgement in Suryamani (supra) cannot be considered to be per incuriam. A statement has been made at the bar that the Commission has neither filed any review application nor filed any special leave petition against the judgement of the Division Bench in Suryamani (supra). Hence, the submission of learned counsel for the Commission that the earlier judgement in Suryamani (supra) is per incuriam, is rejected on this ground also. 21. I have gone through the judgement of Dhruv Kumar Singh (supra) carefully. From the facts of the said case it is evident that the petitioner in that case had a disability in his both legs and in the advertisement therein dated 29th April, 2015 disability with both the legs affected was not advertised. Hence, the facts of the said case are clearly distinguishable and do not support the submission of learned counsel for the respondents. The judgement of Dhruv Kumar Singh (supra) also indicates that the same counsel for the Commission had argued the case of Dhruv Kumar Singh also but he did not raise issue of per incuriam before the Division Bench. 22. The next question which arises is that what relief can be granted to the petitioner. 742 INDIAN LAW REPORTS ALLAHABAD SERIES 23. Learned counsel for the petitioner has drawn the attention of the Court to the judgement of Suryamani (supra), which clearly indicates that 27 posts are unfilled under physically handicapped category. 24. In view of the above, I find that the writ petition deserves to be allowed and it is accordingly allowed. A direction is issued upon the Commission to send the name of the petitioner to the State Government as one of the successful candidates in sub-category 'OL' under the physically handicapped category in accordance with law, expeditiously, preferably within six weeks from the date of communication of this order. 25. No order as to costs. ------------ ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 20.07.2016 BEFORE THE HON'BLE AJAI LAMBA, J. THE HON'BLE RAVINDRA NATH MISHRA-II, J. Habeas Corpus Writ Petition No. - 7425 Of 2016 Mohini Gupta Thru Her Husband Dilip Sharma ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioner: Kaushal Kishore Tewari Counsel for the Respondents: Govt.Advocate, Rajiv Raman Srivastava Constitution of India - Art. 226 - Habeas corpus - Detention in Nari Niketan - Major woman - Right to personal liberty - Held, where detenue is major and has categorically stated that she acted of her own free will, continued detention in Nari Niketan is illegal. Personal liberty under Article 21 cannot be curtailed merely on technical objections or pending criminal proceedings when no offence is made out (paras 10-11). Habeas corpus - Scope - Held, writ court is duty bound to protect personal liberty and cannot permit procedural technicalities to defeat fundamental rights. Once illegal detention is established, court must order release (para 10).