# Prabhat Mishra v. State of U.P. & Ors

- **Citation:** (2025) 7 ILRA 49
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-14
- **Case number:** Writ A No. 4991 of 2023
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhat-mishra-v-state-of-u-p-ors-54629
- **Pages:** 10

## Headnote

C.S.C., Ashwani Kumar Agnihotri

Issue for Consideration
Legality of refusing to appoint the petitioner,
who was the next meritorious candidates under
the physically handicapped category, even after
non-joining by the last selected candidate
causing non-fulfillment of 4% quota.

Headnotes
(A) Service law - Selection - Post of
Assistant
Professor
-
Claim
under
physically
handicapped
category
-
Petitioner stood just below last selected
physically handicapped candidate in merit
list - Last selected candidate did not join
- Petitioner was refused to be given
appointment on the ground that there
were
only
five
reserved
posts
for
physically handicapped candidates and
name of petitioner did not find place
amongst those five candidates - Validity
challenged - Mandate of appointing not
less than 4% of total vacancy in every
Government establishment by person with
benchmark disability was not fulfilled -
Permissibility :
Held : Physically handicapped category is to be
considered as a separate category and provided
with reservations and it is indispensable on the
part of the authorities to declare separate cut
off marks for physically handicapped category
for each stage - The respondents have patently
erred in law in not appointing the petitioner
against fifth reserved post for physically
handicapped candidates of Assistant Professor
(English). [Paras 34 and 39] (E-1)
Case Law Cited
In re: Recruitment of Visually Impaired in
Judicial Services, 2025 INSC 300; Reserve Bank
of India and others v. A. K. Nair and others,
2023 SCC Online SC 801; Rekha Sharma v. High
Court of Judicature for Rajasthan and another,
2025 INSC 551; Saurav Yadav and others v.
State of U.P. and others, (2021) 4 SCC 542; Dr
Manoj Kumar Rawat v. State of U.P. and 5
others, 2025:AHC:71491 DB - referred to.
List of Acts
U.P. Higher Education Services Commission Act,
1980 - Ss. 13(1), 13(4), 12(3); U.P. Education
Service Selection Commission Act, 2023 - S.
31(2); Right of Persons with Disabilities Act,
2016 - S. 34.
List of Keywords
Reservation; Physically handicapped candidate;
Assistant Professor; Physically handicapped
50 INDIAN LAW REPORTS ALLAHABAD SERIES
certificate; Next selected candidate; 4% of total
vacancies;
Benchmark
disability;
Separate
category; Cut off marks; Patent error in law.
Case Arising From
Order dated 19.6.2023 rejecting the claim of the
petitioner for appointment on the post of
Assistant Professor (English) under reserved
quota of physically handicapped category.

## Text

7 All. Prabhat Mishra Vs. State of U.P. & Ors.
49
appointment and also which are
offered in service matters.

11. In view of the above, writ
petition succeeds and is allowed. The orders
dated 19.12.2023 and 02.01.2024 are hereby
quashed. The matter is remitted to the
authority to pass order afresh offering
compassionate appointment to the petitioner
on a suitable post. However, it is left upon for
the authority to make appointment subject to
final outcome of the criminal case. The
appropriate orders shall be passed by the
competent authority within a period of two
months of presentation of certified copy of
this order.
----------
(2025) 7 ILRA 49
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2025

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No. 4991 of 2023

Prabhat Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
I.M. Pandey Ist, Harsh Vardhan Kediya,
Saubhagya Mishra, Snigdha Singh

Counsel for the Respondents:
C.S.C., Ashwani Kumar Agnihotri

Issue for Consideration
Legality of refusing to appoint the petitioner,
who was the next meritorious candidates under
the physically handicapped category, even after
non-joining by the last selected candidate
causing non-fulfillment of 4% quota.

Headnotes
(A) Service law - Selection - Post of
Assistant
Professor
-
Claim
under
physically
handicapped
category
-
Petitioner stood just below last selected
physically handicapped candidate in merit
list - Last selected candidate did not join
- Petitioner was refused to be given
appointment on the ground that there
were
only
five
reserved
posts
for
physically handicapped candidates and
name of petitioner did not find place
amongst those five candidates - Validity
challenged - Mandate of appointing not
less than 4% of total vacancy in every
Government establishment by person with
benchmark disability was not fulfilled -
Permissibility :
Held : Physically handicapped category is to be
considered as a separate category and provided
with reservations and it is indispensable on the
part of the authorities to declare separate cut
off marks for physically handicapped category
for each stage - The respondents have patently
erred in law in not appointing the petitioner
against fifth reserved post for physically
handicapped candidates of Assistant Professor
(English). [Paras 34 and 39] (E-1)
Case Law Cited
In re: Recruitment of Visually Impaired in
Judicial Services, 2025 INSC 300; Reserve Bank
of India and others v. A. K. Nair and others,
2023 SCC Online SC 801; Rekha Sharma v. High
Court of Judicature for Rajasthan and another,
2025 INSC 551; Saurav Yadav and others v.
State of U.P. and others, (2021) 4 SCC 542; Dr
Manoj Kumar Rawat v. State of U.P. and 5
others, 2025:AHC:71491 DB - referred to.
List of Acts
U.P. Higher Education Services Commission Act,
1980 - Ss. 13(1), 13(4), 12(3); U.P. Education
Service Selection Commission Act, 2023 - S.
31(2); Right of Persons with Disabilities Act,
2016 - S. 34.
List of Keywords
Reservation; Physically handicapped candidate;
Assistant Professor; Physically handicapped
50 INDIAN LAW REPORTS ALLAHABAD SERIES
certificate; Next selected candidate; 4% of total
vacancies;
Benchmark
disability;
Separate
category; Cut off marks; Patent error in law.
Case Arising From
Order dated 19.6.2023 rejecting the claim of the
petitioner for appointment on the post of
Assistant Professor (English) under reserved
quota of physically handicapped category.
(Delivered by Hon'ble Abdul Moin, J.)

1. Vakalatnama and counter affidavit
filed today by Shri Ran Vijay Singh,
learned counsel for the respondent no. 4 is
taken on record.

2. Heard Shri Rahul Bajaj, assisted
by Shri Taha Bin Tasneem and Shri Harsh
Vardhan Kedia, learned counsels for the
petitioner,
learned
Standing
Counsel
appearing for the respondents no. 1 & 3,
Shri Ashwani Kumar Agnihotri, learned
counsel for the respondent no.2 and Shri
Ran Vijay Singh, learned counsel for the
respondent no. 4.

3. At the very outset, learned
counsel for the petitioner states that as there
are no disputed questions raised in the
counter affidavit, as such he does not
intend to file reply thereto.

4. Under challenge is the order
dated 19.6.2023, a copy of which is
annexure 1 to the writ petition, whereby the
claim of the petitioner for appointment on
the post of Assistant Professor (English)
under
reserved
quota
of
physically
handicapped category has been rejected.
Further prayer is for a writ of mandamus
commanding the respondents to appoint the
petitioner on the post of Assistant Professor
(English)
from
final
merit
list
of
reservation
quota
of
physically
handicapped category.
5. Bereft of unnecessary details the
facts set forth are that the petitioner suffers
from 100% disability of optical atrophy of
both eyes and is a hundred percent
permanently
physically
handicapped
person. Copy of the physical handicap
certificate is annexure 3 to the writ petition.

6. The respondents had advertised
vacancies of Assistant Professors vide
advertisement, a copy of which is annexure
6 to the writ petition. So far as the dispute
is concerned the same pertains to 5 posts of
Assistant Professor (English) out of total
133 posts of Assistant Professor (English).
The five posts are reserved for the
physically handicapped candidates as per
table 2 of the said advertisement which is
part of annexure 6 of the writ petition and
would
relate
to
clause
3
of
the
advertisement. Thus out of 133 posts of
Assistant Professor (English) five posts
were reserved for physically handicapped
candidates to which there is no dispute.

7. The petitioner applied for the
post of Assistant Professor (English) in
pursuance to the said advertisement. A final
merit list was declared on 02.07.2022, a
copy of which is annexure 2 to the writ
petition, in which the name of the petitioner
finds place at serial 345 having secured
127.22
marks
against
physically
handicapped category.

8. It is contended that a perusal of
the
selected
physically
handicapped
unreserved selected candidates (General
Category) to the final merit list would
indicate as per the table made in paragraph
20 of the writ petition the following
position :

Name

Total Marks
Neha Kumari

154.84
7 All. Prabhat Mishra Vs. State of U.P. & Ors.
51
Astha Singh

137.34
Vijay Bux Singh
136.40
Rishabh Mishra
132.40
Durgesh Mishra 129.22.

9. In paragraph 21 of the writ
petition, it is stated that thepetitioner
stood just below last selected physically
handicapped
candidate
namely
Shri
Durgesh Mishra in terms of his merit
againstunreserved
physically
handicapped category.

10. Incidentally, there is no denial
to the aforesaid averment in paragraph 24
of the counter affidavit filed by respondent
no. 4 wherein the reply to paragraphs 20
and 21 of the writ petition have been given.

11. As per the averments made
both in the writ petition and in paragraph 5
of the counter affidavit dated 21.07.2023
the candidate whose name found place at
the top of the merit list of physically
handicappedunreserved category i.e. Ms
Neha Kumari did not join in the allotted
institution with the result that name of the
petitioner would stand placed at serial no 5
in
the
list
ofunreserved
physically
handicapped candidates which would make
the petitioner as an eligible candidate fit for
being
appointed
against
5
reserved
vacancies
for
physically
handicapped
category as per his merit position, he being
placed at serial no. 6.

12. Placing reliance on the Section
13(1) of the U.P. Higher Education
Services
Commission
Act,
1980
(hereinafter referred to as the Act, 1980)
the contention is that the Commission i.e.
respondent no.2 as soon as possible after
notification of vacancies to it, hold an
interview of the candidates and send to the
Director a list recommending such number
of names of candidates found most suitable
in each subject as may be, so far as
practicable, 25% more than the number of
vacancies in that subject, such names to be
arranged in order of merit shown in the
interview or in the examination and
interview.

13. Further placing reliance on
Subsection (4) of section 13 of the Act,
1980 the argument is that said provision
categorically provides that where a vacancy
occurs due to death, resignation or
otherwise during the period of validity of
the list referred to in subsection (2) which
provides
that
the
list
sent
by
the
Commission shall be valid till the receipt of
a new list from the Commission and such
vacancies having not been notified to the
Commission under Section 12(3) of the
Act, 1980 the Director may intimate to the
management the name of candidates from
such list for appointment.

14. The argument is than when the
person at serial no. 1 of the merit list of the
physically
handicapped
unreserved
category did not join and admittedly
considering the provisions of Section 13 of
the Act, 1980 as the respondents were
enjoined to prepare a list of suitable
candidates 25% more than the number of
vacancies, as such, in case the Commission
would have prepared the list in accordance
with the provisions of the Act, 1980 and
then the name of the petitioner would have
found placed in the list against the reserved
vacancies
of
physically
handicapped
candidates and consequently he should
have been appointed.

15. Further argument is that even
when the Commission as provided under
the Act, 1980 has ceased to exist having
been replaced by the U.P. Education
52 INDIAN LAW REPORTS ALLAHABAD SERIES
Service Selection Commission Act, 2003
(hereinafter referred to Act, 2003) with
effect from 21.07.2023 yet considering that
the selection was of the year 2022 and also
considering the provisions of Section 31(2)
of the Act, 2023, notwithstanding such
repeal of the Act 1980, anything done or
any action taken under the Act 1980 shall
be deemed to have been done or taken
under the Act 2023 and thus it is argued
that irrespective of repeal of Act 1980 the
respondents are required to appoint the
petitioner on the vacant post of Assistant
Professor (English).

16. Reliance has also been placed
on the interim order of this Court dated
22.05.2025 to contend that keeping in view
specific observations made in paragraph 5
the counter affidavit filed by the respondent
no. 3 this Court had provided that till the
next date of listing one post of Assistant
Professor (English) if still vacant shall not
be filled up.

17. Further without considering the
aforesaid facts the representation of the
petitioner was rejected by the respondents
vide order impugned dated 19.06.2023
primarily on the ground that as there were
only five reserved posts for physically
handicapped candidates and name of
petitioner did not find place amongst those
five candidates as such he cannot be
appointed.

18. Reliance has been placed on the
judgements of Hon'ble Supreme Court in
the case of in re: Recruitment of Visually
Impaired in Judicial Services, 2025
INSC 300, Reserve Bank of India and
others vs A. K. Nair and others, 2023
SCC Online SC 801, Rekha Sharma vs
High Court of Judicature for Rajasthan
and another, 2025 INSC 551, Saurav
Yadav and others vs State of U.P. and
others, (2021) 4 SCC 542 and a division
bench judgement of this Court in the case
of Dr Manoj Kumar Rawat vs State of U.P.
and 5 others, 2025:AHC:71491-DB.

19. On the other hand, learned
Standing Counsel as well as Shri Ran Vijay
Singh, learned counsel for the respondent
no. 4 have supported the order impugned
dated 14.06.2023 by which the claim of the
petitioner has been rejected. It is contended
that
of
the
133
posts
ofAssistant
Professor
(English)
which
were
advertised,5 postswere reserved for
physically handicapped category. The other
posts were bifurcated intounreserved,
OBC, EWS and SC category but there was
no separate category in the categorization
for
physically
handicapped
category
candidates who were all to be treated as
unreserved.

20. It is contended that the
petitioner was not included as a selected
candidate because he failed to cross the cut
off marks / merit and that the 5physically
handicapped candidates as per the quota
have been selected according to merit
position.

21. So far as waiting list of 25% of
total vacancies is concerned it is contended
that 25% waiting list of each category was
published but as the five candidates of
physically handicapped category were
selected under 133 posts ofAssistant
Professor (English) and these five posts
were not independently requisitioned to
the Commission therefore they were
included in theunreserved 63 posts and
against theunreserved 63 posts 25% i.e.
16 posts of waiting list was declared in
which the petitioner's name was not
present.
7 All. Prabhat Mishra Vs. State of U.P. & Ors.
53
22. It is also contended that the last
selected
candidate
ofphysically
handicapped category has secured 129.22
marks vis a vis the petitioner who has
only secured 127.22 marks while the
general category list candidates who find
place in the waiting list has secured 149.77
marks and therefore the petitioner has
failed to secure the cut off marks / merit
and thus the name has not been included
neither in the final select list nor in the
waiting list. However, it is not disputed that
in terms of merit of physically handicapped
unreserved
candidates
the
name
of
petitioner would find place at serial no. 6.

23. Thus it is contended that no
error
has
been
committed
by
the
respondents while rejecting the claim of the
petitioner vide order impugned dated
19.06.2023.

24. Heard learned counsel for the
parties and perused the record.

25.
From
the
arguments
as
advanced by learned counsel for the parties
and from perusal of record it emerges that
the petitioner is aphysically handicapped
unreserved candidate suffering from 100%
disability and is a 100% permanently
handicapped person. An advertisement was
issued for various vacancies of Assistant
Professors. The petitioner finding himself
eligible for the post ofAssistant Professor
(English) (to which the dispute also
pertains
to)
applied
for
the
same.
Admittedly
there
were
133
posts
ofAssistant Professor (English) of which
5 posts were reserved forphysically
handicapped candidates as per table 2 of
the advertisement. A final merit list was
declared on 02.07.2022 in which name of
the petitioner finds place at serial number
345
having
secured
127.22
marks
havingphysically handicapped unreserved
category. As per final merit list, name of
the petitioner would stand at serial number
6 in terms of merit for physically
handicapped candidates to which there is
no dispute. However considering that there
are only five reserved posts for physically
handicapped category, as such name of the
petitioner did not find place against those
five posts. One Ms Neha Kumari stood at
serial number 1 in terms of merit
forphysically
handicapped
unreserved
category. Admittedly, Ms Neha Kumari did
not join in the allotted institution thus
leaving only four persons in fray against
five
vacancies
againstphysically
handicapped unreserved category.

26. The grievance of the petitioner
is that considering that there were five
physically
handicapped
unreserved
vacancies against 133 posts of Assistant
Professor (English) and considering non
joining of the person who stood first in the
said category i.e. Ms Neha Kumari, name
of petitioner should have been placed in the
said final merit list which should have
resulted him in he being appointed as an
Assistant
Professor
(English).
The
representation filed in this regard was
rejected by the respondents vide order
impugned dated 19.06.2023 primarily on
the ground that as there were only five
reserved posts forphysically handicapped
candidates and name of petitioner did not
find place amongst those five candidates as
such he cannot be appointed.

27. The respondents have also
supported
the
order
impugned
by
contending that even while following the
provisions of the Act, 1980 and after
considering the 25% i.e. 16 posts of waiting
list, name of the petitioner did not find
place as he failed to secure requisite marks
54 INDIAN LAW REPORTS ALLAHABAD SERIES
in terms of merit and consequently he has
not been appointed.

28. In this regard it would be apt to
refer to provisions of Section 34 of the
Right of Persons with Disabilities Act,
2016 (hereinafter referred to as the Act,
2016), which reads as under:

 "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 nonavailability 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."

29. A perusal of Section 34 of the
Act, 2016 would indicate that every
appropriate government shall appoint in
every government establishment not less
than 4% of total number of vacancies in the
cadre strength in each group of posts meant
to be filled with persons with benchmark
disabilities. The word used by legislature is
"shall appoint" meaning thereby that not less
than 4% of total number of vacancies in
cadre strength would be occupied by
persons with benchmark disability by way
of appointment.
7 All. Prabhat Mishra Vs. State of U.P. & Ors.
55
30. There is no dispute to the fact
that the petitioner is suffering from a
benchmark disability rather is suffering
from 100% disability of optical atrophy of
both eyes and is duly certified to be a
hundred percent permanently physically
handicapped person as per physically
handicapped certificate.

31. Hon'ble Supreme Court in the
case of Recruitment of Visually Impaired
in Judicial Services (supra) has held as
under:

"63.3. Taking note of all these
aspects, we are of the opinion that
maintaining and operating a separate cutoff list is mandatory for each category,
which
axiomatically
includes
PwD
category as well. Non-declaration of cut-off
marks affects transparency and creates
ambiguity, and candidates being not
informed about the basis of their results.
Such candidates are left uninformed about
the last mark scored by the qualifying
candidate belonging to the particular
category, to be able to get through to the
next stage of selection process. In effect, it
compels PwD candidates to compete with
other category candidates on unequal
terms. Further, when the Rules referred to
above,considered the PwD as a separate
category
and
provided
them
with
reservations, it is indispensable on the part
of the authorities concerned to declare
separate cut-off marks for PwD category
at each stage to ensure that those similarly
placed
candidates
are
adequately
represented in the service fulfilling the
very purpose of reservation. The nondisclosure of cut-off marks would lead to a
situation, where such candidates may not
be adequately represented in the judicial
service, which is against the provisions of
the RPwD Act, 2016. Therefore, we direct
the authorities concerned to declare
separate
cut-off
marks
and
publish
separate merit list for the PwD category at
every stage of the examination and proceed
with the selection process accordingly. "
(emphasis by Court)

32. Again Hon'ble Supreme Court
in the case of Rekha Sharma (supra) has
held as under:

"14. What emerges from the
submissions made on behalf of the
petitioner as well as the respondents herein
is the fact that the petitioner herein has
secured the minimum qualifying marks
being 119 which is an undisputed fact.
Secondly, although only two posts were
reserved for persons with disability of
being blind and having low vision, the fact
remains that the candidate Anu Meena who
has secured 137 marks belongs to the
Scheduled Tribes category and she could
have been considered in that category, in
which event two posts would have been
remained available for persons with blind
and low vision disability and the petitioner
herein could have been one of the persons
who could have been accommodated. In
this regard, our attention was drawn to the
Office Memorandum dated 27.09.2022 and
particularly paragraph ?4(i)? of the said
Office Memorandum which reads as under:

(i). In line with the spirit of the
O.M. No.36035/2/2017-Estt.(Res.), dated
15.1.2018, and O.M. No.36012/1/2020Estt(Res-II),
dated
17.5.2022
on
the
subject, the concept of own merit for PwBD
shall
be
implemented
in
all
direct
recruitment examinations, including the
CSE and promotions, wherever applicable.
In other words, PwBD category candidates
selected without relaxed standard, along
with other unreserved candidates, will not
be adjusted against the reserved share of
56 INDIAN LAW REPORTS ALLAHABAD SERIES
vacancies. The reserved vacancies will be
filled up separately from amongst the
eligible
candidates
with
benchmark
disabilities, who are lower in merit than the
last unreserved candidate in general merit
list, but otherwise found suitable for
appointment, if necessary, by relaxed
standards."
(emphasis by Court)

33. Hon'ble Supreme Court in the
case of Saurav Yadav (supra) has held as
under:

"60. Horizontal reservations on
the other hand, by their nature, are not
inviolate pools or carved in stone. They are
premised on their overlaps and are
?interlocking? reservations 21. As a sequel,
they are to be calculated concurrently and
along with the inviolate ?vertical? (or
?social?)
reservation
quotas,
by
application of the various steps laid out
with clarity in paragraph 11 of Justice
Lalit?s judgement. They cannot be carried
forward. The first rule that applies to filling
horizontal reservation quotas is one of
adjustment, i.e. examining whether on
merit any of the horizontal categories are
adjusted in the merit list in the open
category, and then, in the quota for such
horizontal category within the particular
specified/social reservation. "
(emphasis by Court)

34. In view of the aforesaid
judgements
it
clearly
emerges
that
physically handicapped category is to be
considered as a separate category and
provided with reservations and it is
indispensable on the part of the authorities
to declare separate cut off marks for
physically handicapped category for each
stage to ensure that those similarly placed
candidates are adequately represented in
service fulfilling the very purpose of
reservation.

35. The argument on the part of
respondents that name of petitioner was not
contained in the result of 25% waiting list
is found misconceived considering the fact
that when there were 5 posts reserved for
physically handicapped candidates and the
person at the serial number 1 of the merit
namely Ms Neha Kumari did not join as
such
the
respondents
should
have
considered
the
others
eligible
towardsphysically handicapped posts also
instead of declaring a general waiting list in
terms of merit without considering merit
towards reserved posts for physically
handicapped candidates more particularly
when the Hon'ble Supreme Court in the
judgement of Recruitment of Visually
Impaired in Judicial Services (supra) has
observed regarding declaring of separate
cut off marks for physically handicapped
category.

36. A bald argument has also been
advanced on behalf of respondent no. 4 and
specific plea in this regard is taken on
paragraph 11 of counter affidavit filed on
behalf of respondent no. 4 that the
petitioner
failed
to
secure
requisite
marks/merit without in fact disclosing the
cut off marks which were fixed for
physically handicapped category.

37. The aforesaid argument has
been sought to be supported on the ground
that in the final result dated 02.07.2022 the
last
selected
candidate
of
physically
handicapped category had secured 129.22
marks (in paragraph 20 of the writ petition
the name indicated is Shri Durgesh Mishra
having 129.22 marks). However in the
absence of any cut off marks being
declared separately as directed by Hon'ble
7 All. Prabhat Mishra Vs. State of U.P. & Ors.
57
Supreme
Court
in
the
case
ofRecruitment of Visually Impaired in
Judicial Services (supra) it is apparent
that the said argument is patently fallacious
and misconceived particularity considering
that the merit list of physically handicapped
category included only five candidates, the
last person in the merit list having secured
129.22 marks, there being no dispute to no
other candidate of physically handicapped
category in between Shri Durgesh Mishra
and the petitioner meaning thereby that it is
only the petitioner who should have been
given fifth reserved post against physically
handicapped category more particularly
when Section 34 of the Act, 2016
specifically stipulates that the Government
shall appoint not less than 4% of total
number of vacancies meant to be filled with
persons with benchmark disability. Thus
non appointment of petitioner would be
clearly violative of Section 34 of the Act,
2016.

38. Even though no argument has
been raised by learned counsel appearing
for the respondent no. 4 of the Act 1980
and theUttar Pradesh Secondary Education
Services Selection Board Act, 1982, having
been repealed (and the said selection
having been carried out by respondent no.
2) and having been replaced by the Act,
2023 yet as an abundant precaution it is
indicated that this aspect of matter has been
considered by a Division Bench of this
Court in the case of Dr. Manoj Kumar
Rawat (supra) has held after considering
the provisions of Section 31(2) of the Act,
2023 has held as under:

"17. A careful reading of subsection
(2)
would
reveal
that
notwithstanding repeal of the Act of 1980
anything done or any action taken under
the acts referred to in sub-section (1) is to
be deemed to have been done or taken
under the new Act and for such purposes
the new Act were to be treated to have been
in force at all material times. Once we find
that the new Act contains no power with the
Director to fill up a substantive vacancy
which has come into existence later, to be
filled from a candidate selected in an
earlier advertisement, the action of the
Director would be without jurisdiction.
This is particularly so as the powers of the
Director under the previous Act would
continue under the new Act by virtue of
section 31(2) of the Act of 2023 insofar as
it is not inconsistent with the Act. A power
which is not conferred upon the Director
during the currency of new Act cannot be
exercised by tracing the source of such
power from the previous Act, which has
already been repealed."

39.
Considering
the
aforesaid
discussion it is thus apparent that the
respondents have patently erred in law in
not appointing the petitioner against fifth
reserved post for physically handicapped
candidates of Assistant Professor (English).
The matter may have been sent for
consideration
of
the
petitioners
appointment
but
at
the
same
time
considering
that
the
objections
and
arguments of the respondents indicating as
to why the petitioner was not appointed
against fifth post have been considered
threadbare and the fact that there is no
dispute that the petitioner stood sixth in
terms of merit of physically handicapped
candidates and the fact that the respondents
did not declare any cut off marks in the
physically handicapped category as per
judgement of Hon'ble Supreme Court in the
case of Recruitment of Visually Impaired
in Judicial Services (supra) and the
mandatory provisions of Section 34 of the
Act,
2016
which
mandates
every
58 INDIAN LAW REPORTS ALLAHABAD SERIES
appropriate government to appoint not less
than 4% of total number of vacancies as
such instead of sending the matter to the
competent authority the Court while
exercising powers under Article 226 of the
Constitution of India deems it fit to pass the
following orders.

40. Keeping in view the aforesaid
discussion, the writ petition is allowed. The
order impugned dated 19.06.2023, a copy
of which is annexure 1 to the writ petition
is quashed. A writ of mandamus is issued
commanding the respondents to appoint the
petitioner on the post of Assistant Professor
(English) against physically handicapped
category.

41. Let the order be complied
within six weeks from the date of receipt of
a certified copy of this order.
----------
(2025) 7 ILRA 58
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.07.2025

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ A No. 5583 of 2024

Ram Prakash Mishra ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Hari Prasad Gupta, Hari Ram Gup

Counsel for the Respondents:
C.S.C.

Issue for Consideration
Competence of the disciplinary authority in
reiterating the charges and holding the petitioner
guilty
without
discussing
the
findings
and
reasoning recorded by the Enquiry Officer in
holding the charge against the petitioner not
proved.
Headnotes
(A) Service law - Disciplinary proceeding -
Punishment - Major penalty - Withholding
of two increments with cumulative effect -
Charge of deliberately issuing the fitness
certificate against provisions was leveled -
In inquiry report, the charge was not found
proved
against
the
petitioner
-
The
disciplinary authority disagreed with the
inquiry report and held petitioner guilty
without discussing on the findings and
reasoning recorded by the Enquiry Officer -
Further the disciplinary authority reiterated
the charges without adverting to any
evidence - Permissibility :
Held : Rule 9 (2) of Rules, 1999 is clearly salutary
in nature and is meant for protection of a
delinquent employee in case the disciplinary
authority disagrees with inquiry report. It is,
therefore, incumbent upon a disciplinary authority
to specifically record reasons for disagreeing with
the inquiry report - It would be incumbent upon a
disciplinary authority to advert to findings recorded
in
the
inquiry
report,
material
evidence,
documentary or otherwise and to indicate how the
reasons and findings recorded by the Enquiry
Officer does not fulfill the relevant aspects required
to be seen by the Enquiry Officer. [Paras 15, 16
and 18] (E-1)
Case Law Cited
Yoginath D. Bagde v. State of Maharastra and
another, (1999) 7 SCC 739; Punjab National Bank
and others v. Kunj Bihari Misra, (1998) 7 SCC 84;
Baldev Singh Gandhi vs State of Punjab and
others, AIR 2002 SC 1124; Noratanmal Chouraria
v. M.R. Murli & another, (2004) 5 SCC 689; State
of U.P. and others v. Raj Mani Singh and another,
(2018) 36 LCD 644 - referred to.

List of Acts
U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999 - Rule 9.

List of Keywords
Major penalty; Withholding of two increment
with cumulative effect; Charge of issuing the