# Lal Pradeep Singh & Anr v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1208
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-03-31
- **Case number:** J. Service Single No. 20021 of 2018
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-pradeep-singh-anr-v-state-of-u-p-ors-45646
- **Pages:** 6

## Headnote

A. Service Law- Reservation - The U.P.
Public
Services
(Reservation
For
Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen)
Act, 1993: Section 3 - The candidates
belonging to special category of the
socially reserved or unreserved category
shall be given the horizontal reservation
and shall be adjusted from their specific
category so that the said reservation
would not exceed 50% ceiling. (Para 9, 10,
13)
Writ petition allowed. (E-4)

Precedent followed:

## Text

1208 INDIAN LAW REPORTS ALLAHABAD SERIES
also found to be participating in a political
meeting on 1.3.1992. He submitted that it
mattered little that though the petitioner
was charged for allegedly attending the
meeting held on 25.11.1991 but the fact
that he had attended meeting on 1.3.1992
was taken into account. He submits that
the enquiry officer had, after a broad
assessment of the evidence present,
concluded that the petitioner was inclined
towards politics and had the protection of
various politically active leaders and,
therefore, no fault could be found with the
enquiry report. The order of the punishing
authority and the Appellate authority were,
therefore, he submitted absolutely correct.

10. Having heard the learned counsel
for the parties, this Court is of the view
that the order dated 23.5.1992 passed by
the Sub Divisional Magistrate, Biswan,
dismissing the petitioner from service and
the
Appellate
Court's
order
dated
31.3.2018 by which the punishment was
confirmed could not be sustained in the
eyes of law.

11. Firstly, the Court finds that the
charge sheet was extremely vague. No
Rule had been mentioned which had been
relied upon to punish the petitioner. The
only allegation in the charge sheet appears
to be that since the petitioner was a
politically active person he was to be
punished.

12. Secondly, when the charges did
not show as to which land was not allotted
by the petitioner and as to which welfare
programme was not followed properly by
the petitioner there could not have been
any definite reply. Still further when the
petitioner was throughout asking for a
change of the enquiry officer specially
when he had himself lodged a first
information report against the petitioner
then the enquiry officer should not have
been trusted with the life of the petitioner.

13. Thirdly, if the petitioner did not
appear then it was the duty of the enquiry
officer to have come to a definite
conclusion as to whether the petitioner was
guilty and was liable to be punished. The
enquiry officer should have found out as to
whether the unrebutted evidence was also
conclusively proved or not. He should
have seen whether the charges on the basis
of
unrebutted
charges
were
proved
sufficiently or not, to punish the petitioner.

14. Fourth, I find that the enquiry
report and the show cause regarding
punishment were also not served upon the
petitioner.

15. In the end, since the Court finds
that the petitioner was illegally kept out of
service on account of wrong orders having
been passed, the petitioner be given the
benefit of continuity of service and he be
also given his full back wages.

16. The orders dated 23.5.1992
passed by the S.D.M. District Sitapur and
31.3.2018
passed
by
the
District
Magistrate, Sitapur, are quashed..

17. The writ petition is allowed.
----------
(2020)02ILR A1208

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.01.2020

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN,
J.

Service Single No. 20021 of 2018
2 All. Lal Pradeep Singh & Anr. Vs. State of U.P. & Ors.
1209
Lal Pradeep Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Rajendra Pratap Singh, Surendra Pratap
Singh

Counsel for the Respondents:
C.S.C.

A. Service Law- Reservation - The U.P.
Public
Services
(Reservation
For
Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen)
Act, 1993: Section 3 - The candidates
belonging to special category of the
socially reserved or unreserved category
shall be given the horizontal reservation
and shall be adjusted from their specific
category so that the said reservation
would not exceed 50% ceiling. (Para 9, 10,
13)
Writ petition allowed. (E-4)

Precedent followed:

1. Pawan Kumar Vs. State of U.P. and another
reported in (2018) 3 UPLBEC 2298 (Para 9)

2. Indra Sawhney Vs. Union of India, 1992
Supp (3) SCC 217; AIR 1993 SC 477 (Para 9)

3. Union of India and Anr. Vs. National
Federation of the Blind and Ors., 2013 (10)
SCC 772 (Para 9)

Present petition assails the order dated
23.06.2018,
passed
by
District
Magistrate, Pratapgarh.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard learned counsel for the parties.

2. By means of this petition the
petitioners have assailed the order dated
23.6.2018 passed by the District Magistrate,
Pratapgarh rejecting the representation of the
petitioner which was preferred seeking benefit
of reservation admissible for the dependants of
freedom-fighters.

3. Since there is no dispute that the
petitioners are dependants of freedom-fighters,
therefore, the relevant facts to that effect are
not being dealt with.

4. The precise dispute is that the
reservation provided for the dependants of
freedom-fighters is 2% of the vacancies in
view of section 3 (1) of The U.P. Public
Services
(Reservation
For
Physically
Handicapped,
Dependants
of
Freedom
Fighters and Ex-Servicemen) Act, 1993
(hereinafter referred to as Act, 1993 in short).

5. As per impugned order such
reservation would be admissible vertically as
the vertical reservation shall be given to such
candidates
from
horizontal
reservation,
therefore, out of total 182 posts of Lekhpal the
unreserved posts are 92 and if 2% reservation
is applied on 92 posts it will come out as 1.84
and in view of the Government Order dated
28.8.2015 which provides that the number, if it
does not come in clear number then no
rounding of shall be provided in that case,
therefore, only one post shall be reserved for
the dependants of freedom-fighters and on that
post the appointment has already been
provided.

6. Learned counsel for the petitioner
has referred Rule 3 of the Act, 1993 is
being reproduced herein below:

"3. Reservation of vacancies in
favour of physically handicapped etc. -
[(1) There shall be reserved at the stage of
direct recruitment],-

[(i) in public services and posts
two percent of vacancies for dependents of
freedom fighters;
1210 INDIAN LAW REPORTS ALLAHABAD SERIES

(i-a) in public services and posts
other than Group 'A' posts or Group 'B'
posts, on and from May 21, 1999 two per
cent of vacancies, and on and from the
date on which the Uttar Pradesh Public
Services
(Reservation
for
Physically
Handicapped, Dependents of Freedom
Fighters and Ex-servicemen) (Amendment)
Act, 1999 is published in the Gazette, five
per cent of vacancies for Ex-servicemen.]

[((ii) In such public services and
posts as the State Government may, by
notification, identify 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.]

(2)[* * *]

(3) The persons selected against
the vacancies reserved under subsection
(1) shall be placed in the appropriate
categories to which they belong. For
example, if a selected person belongs to
Scheduled Castes category he will be
placed in that quota by making necessary
adjustments; if he belongs to Scheduled
Tribes category, he will be placed in that
quota by making necessary adjustments; if
he belongs to[Other Backward Classes of
Citizens], category, he will be placed in
that
quota
by
making
necessary
adjustments. Similarly if he belongs to
open competition category, he will be
placed in that category by making
necessary adjustments.

4. [* * *]

[(5)
Where
due
to
nonavailability of suitable candidates any of
the vacancies reserved under sub-section
(1) remains unfilled it shall be carried
forward for further two selection years,
whereafter it may be treated to be lapsed.]

7. As per learned counsel for the
petitioner sub-rule 3 of the Rule 3 provides
the modality as to how the persons who
have been provided reservation under Rule
3 shall be adjusted. It categorically
provides
that
if
a
selected
person
belonging to particular category he / she
shall be placed in that quota by making
necessary
adjustments.
Perhaps,
this
modality has been given to adjust the
reserved category candidates within a
ceiling of 50% of reservation.

8. It has been informed by the
learned counsel for the petitioner that the
petitioners no. 1 and 2 are in the waiting
list at serial no. 1 and 2 of the category of
dependant of freedom-fighters.

9. Learned counsel for the petitioner
has drawn attention of this Court towards
the decision of this Court in re: Pawan
Kumar vs. State of U.P. & another
reported in (2018) 3 UPLBEC 2298
whereby the identical issue relating to the
disabled persons have been considered and
the legal analogy of this judgment may be
applied in the present case. By means of
aforesaid
judgment
not
only
the
2 All. Lal Pradeep Singh & Anr. Vs. State of U.P. & Ors.
1211
Government Order dated 28.8.2015 has
been considered but it has also been
considered as to what reservation should
be provided to these candidates of special
category as per special category e.g.
dependants
of
freedom-fighters
and
physically handicapped persons. It has also
been considered as to whether they should
be provided horizontal reservation from
vertical or vertical reservation from
horizontal. Para 11, 12 and 13 of the
aforesaid judgment are being reproduced
herein below:

11. The directions issued vide
Government
Order
dated
28.8.2015
cannot be applied in the matter of
horizontal reservation, inasmuch as, a
careful reading thereof indicates that the
directions have been issued not to apply
the "rounding off principle" as a caution
so that the total percentage of reservation
may not exceed more than 50%.

12. In the matter of horizontal
reservation, as per the procedure, it is settled
position that the horizontal reservation always
cut across the vertical reservation i.e. the
candidate who seek benefit of any of the
category of horizontal reservation has to be
considered by adjusting him against the
appropriate category of General, OBC, SC &
ST i.e. the category to which he belongs. The
adjustment has to be made as per the
principles laid down by the Apex Court in the
case of Indra Sawhney v. Union of India
reported in 1992 Supp (3) SCC 217, AIR
1993 SC 477. The process for adjustment of
horizontal category candidate of "persons with
disabilities" has been further clarified in
Union of India & Anr. v. National
Federation of the Blind & Ors. reported in
2013 (10) SCC 772, following the law laid
down in Indra Sawhney (supra), as under:-

"42. A perusal of Indra Sawhney
(supra) would reveal that the ceiling of 50%
reservation applies only to reservation in
favour of other Backward classes under Article
16(4) of the Constitution of India whereas the
reservation in favour of persons with
disabilities is horizontal, which is under Article
16(1) of the Constitution. In fact, this Court in
the said pronouncement has used the example
of 3% reservation in favour of persons with
disabilities while dealing with the rule of 50%
ceiling. Para 95 of the judgment clearly brings
out that after selection and appointment of
candidates under reservation for persons with
disabilities they will be placed in the respective
rosters of reserved category or open category
respectively on the basis of the category to
which they belong and, thus, the reservation
for persons with disabilities per se has nothing
to do with the ceiling of 50%. Para 812 is
reproduced as follows:-

"812. ......all reservations are not
of the same nature. There are two types of
reservations, which may, for the sake of
convenience, be referred to as 'vertical
reservations' and 'horizontal reservations'.
The reservations in favour of Scheduled
Castes, Scheduled Tribes and other
backward classes [under Article 16(4)]
may
be
called
vertical
reservations
whereas
reservations
in
favour
of
physically handicapped [under Clause (1)
of Article 16] can be referred to as
horizontal
reservations.
Horizontal
reservations
cut
across
the
vertical
reservations - what is called inter-locking
reservations. To be more precise, suppose
3% of the vacancies are reserved in favour
of physically handicapped persons; this
would be a reservation relatable to Clause
(1) of Article 16. The persons selected
against this quota will be placed in the
appropriate category; if he belongs to S.C.

category he will be placed in
that
quota
by
making
necessary
adjustments; similarly, if he belongs to
open competition (O.C.) category, he will
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
be placed in that category by making
necessary
adjustments.
Even
after
providing
for
these
horizontal
reservations,
the
percentage
of
reservations in favour of backward class
of citizens remains - and should remain -
the same......"

13. Thus, as per the approved
method of computation of reservation at
the time of preparation of the merit list of
General and socially reserved Category,
the
last
candidate
selected
in
the
appropriate category has to be removed so
as to adjust the candidate belonging to the
special/horizontal category of the said
socially reserved or unreserved category.
For example, if the candidate seeking
benefit of special category of physically
disabled, belongs to the General Category,
he will be placed in the merit list of the
said
category
by
making
necessary
adjustment. The result is that the last
candidate from the merit list of General
category will be replaced by the candidate
belonging to the special (horizontal
category). The same process has to be
adopted with reference to the candidates
belonging to socially reserved category of
OBC, SC & ST. Thus, if adjustment is
made in such a manner, the total
percentage of reservation, in any case,
would
not
exceed
50%."
[Emphasis supplied]

10. This Court in re: Pawan Kumar
(supra) has considered the dictum of
Hon'ble Apex Court in re: Indra Sawhney
(supra) and National Federation of Blinds
and others (supra) and considering the
ratio of aforesaid judgment of Hon'ble
Apex Court it has held that the candidates
belonging to the special category of the
said socially reserved or unreserved
category shall be given the horizontal
reservation and they shall be adjusted from
their specific category so that said
reservation would not exceed 50% ceiling.

11. Sri Vishal Verma has tried to
justify
the
impugned
order
dated
23.6.2018 but in view of the decision of
this Court in re: Pawan Kumar (supra)
wherein the dictum of Hon'ble Apex Court
in re: Indra Sawhney (supra) and National
Federation of Blinds and others (supra) he
could not properly justify the said order.

12. Having heard learned counsel for
the parties and perused the material
available on record and considering the
dictum of this Court in in re: Pawan
Kumar (supra) wherein the dictum of
Hon'ble Apex Court in re: Indra Sawhney
(supra) and National Federation of Blinds
and others (supra) have been relied upon, I
am of the considered opinion that the order
dated 23.6.2018 passed by opposite party
no. 3, Annexure no. 3 to the writ petition is
not sustainable in the eyes of law,
therefore, the said order is hereby
quashed.

13. In view of dictum of Hon'ble
Apex Court in re: in re: Pawan Kumar
(supra) as well as the dictum of Hon'ble
Apex Court in re: Indra Sawhney (supra)
and National Federation of Blinds and
others (supra) the 2% reservation for the
total 182 vacancies relating to the
dependants of freedom-fighters would
come out as 3.64 which shall not be
rounded of and the same shall be read as 3
in view of the Government Order dated
28.8.2015. Since 1 person in such category
has already been appointed, therefore, the
opposite parties should provide two
vacancies in this quota of dependants of
freedom fighters for which the petitioners
who are in the waiting list at serial no. 1
and
2
may
be
appointed.
2 All. Keshav Prasad Dubey Vs. TheState of U.P. & Ors.
1213

14. A writ in the nature of mandamus
is issued commanding the opposite parties
to consider the candidature of the
petitioner and appointing him on the post
of Lekhpal under the 2% reservation for
the category of dependant of freedomfighters in view of the decision of this
Court in re: Pawan Kumar (supra).

15. The compliance of the aforesaid
order shall be made within two months
from the date of production of the certified
copy of the order of this Court.

16. Writ petition is allowed.

17. No order as to costs.
----------
(2020)02ILR A1213

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2019

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-A No. 20451 of 2019

Keshav Prasad Dubey ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Preetpal Singh Rathore, Sri Shravan
Kumar

Counsel for the Respondents:
C.S.C.

A. Suspension - Rule 17(1) (a) - The Uttar
Pradesh
Police
Officers
of
the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 - the exercise of
power
of
suspension
by
any
other
authority
not
below
the
rank
of
Superintendent of Police who has been
authorized by the appointing authority in
this behalf, and in view thereof the
exercise of the power by the authority
who has been granted authorization by
the appointing authority would also be a
valid exercise of power
The power of authorization contemplated under Rule
17(1)(a) having duly been exercised by the
appointing authority i.e., the Deputy Inspector
General of Police and the necessary authorization
having been issued to the Superintendent of Police
for exercising the aforesaid power, the order of
suspension which has been passed by the
Superintendent of Police, Chitrakoot cannot be said
to suffer from want of authority. (para 24)
B.
Delegation
of
a
discretionary
administrative power - Scope - delegatus non
potest
delegare
-
delegation
of
an
administrative power is permissible when the
relevant law permits the same and statutes
frequently make a provision enabling the
authority on which powers are conferred in
the first instance to delegate the same to
subordinate officers
The lawful exercise of power is that it should be
exercised by the authority upon whom it is conferred
and by no one else. The exception to this principle of
the inalienable discretion is the exercise of a
statutory power would be in a case where the
authority on whom the power is originally conferred
by a statute is expressly authorized in terms thereof
to delegate the said power by grant of authorization
to some other authority. This principle applies to
delegation of all forms of power, including
administrative powers, conferred in terms of a
statutory provision.
Writ Petition Disposed of.

List of cases cited

1. Barium Chemicals Ltd. & anr. V. Company
Law Board & ors AIR 1967 SC 295

2. Sahni Silk Mills (P.) Ltd. & anr V. Employees'
State Insurance Corporation (1994) 5 SCC 346

3. Marathwada University V. Seshrao Balwant
Rao Chavan (1989) 3 SCC 132