# Rakesh Kumar Srivastava v. Chief Engineer, Irrigation Deptt. U.P. Lko. And others

- **Citation:** (2012) 2 ILRA 1069
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-31
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-srivastava-v-chief-engineer-irrigation-deptt-u-p-lko-and-others-42293
- **Pages:** 18

## Headnote

Constitution
of
India,
Article
226selection of Assistant Boring Technicianunder Physically Handicapped Quotaneither in advertisement-nor in the
application form any column meant for
such category-no separate result of P.H.
Category of written test prepared-nor
candidates required to produce P.H.
Certificate at the time of interviewappointment under this category-heldselection neither impartial nor honest-
1070 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
but malice in law-result of extraneous
considerations-quashed
direction
to
issue the salary from erring officer.

Held: Para 55 and 56

This approach taints the entire action of
the respondents. It clearly smells foul
and stinky. The latent becomes patent.
The procedure and the manner in which
Selection Committee headed by Chief
Engineer
himself,
who
was
the
appointing
authority,
have
worked,
raises serious doubt over its integrity. It
shows that the selection was neither
impartial nor honest. The Selection
Committee has made selection in its
own ways, deviating the settled straight
procedure,
and
recommended
candidates (irrespective of their merits)
in
respective
categories
for
which
statutory reservation was not available.
No justification, no clarification, no
explanation whatsoever, for this kind of
selection, particularly in respect of the
category
of
Physically
Handicapped
persons has been attempted to place on
record. The dubious nature of selection
is writ large. No explanation justifies an
inference of extraneous considerations.

In absence of anything to justify bona
fide of Selection Committee, this court
has no option but to hold the above
selection tainted with malice in law. It
is
vitiated
on
account
of
recommendations
made
without
adhering
strictly
to
the
merits
of
candidates
vis
a
vis
respective
categories of reservation. The Selection
Committee carved out a category of
reservation which was not attracted to
the service and post in question. This
action of Selection Committee is tainted
with dishonest intention and in absence
of anything otherwise, this Court is
justified in inferring that they were
involved in corrupt activities, prompted
by extraneous consideration and for
collateral purpose. The selection of
certain
persons
under
physically
handicapped quota is thus clearly illegal
founded on extraneous considerations.
Case law discussed:
2003 (2) SCC 111; 2002 (7) SCC 222; 2002 (3)
SCC 496; 2011 (4) ADJ 306; 2010 (3) AWC
2583; J.T. 2009 (10) SC 309; (2009) 3 SCC
250; 2009 (2) SCALE 731; JT 2009 (4) SC 577;
2009 (6) SC 329; 2008 (7) SCC 210; JT 2009
(8) SC 501

## Text

_Characters 0–39,971 of 56,438. This is a partial read: ask again with offset=39971 for what follows._

2 All] Rakesh Kumar Srivastava V. Chief Engineer, Irrigation Deptt. U.P. Lko. and others
1069
spheres of our day-to-day life the world over.
In a limited sense it connotes allowing
decisions and actions of a person to be
influenced not by rights or wrongs of a
cause, but by the prospects of monetary
gains or other selfish considerations."

63. The petitioner's Tractor which has
already been sold long back, mere restoration
thereof, after almost three years, would not
restore the situation back to petitioner since
depreciation and deterioration of something
like Tractor is very fast and has its own
impact. This Court finds it really very hard
and disheartening that the respondents
holding responsible offices could proceed in
such an illegal manner, that too with
impunity, without showing any compassion
and heart to the helplessness of petitioner,
causing virtually state of ruination to him.

64. It is well settled that a person who
seeks equity must come with clean hands and
do equity. Similarly it applies equally to
respondents also when they come to the
Court to defend their action.

65. In Gurpal Singh Vs. State of
Punjab and another, AIR 2005 SC 2755 it
was held that the Court must do justice by
promotion of good faith and prevent law
from crafty invasion. No litigant has a right
to unlimited draught on the Courts equity
and good conscious. The observations
though made in a different context but in
principle, they apply to the facts of this case
also. In my view here is a case which deserve
to be allowed with exemplary costs so that it
may act deterrent to prevent others not to
behove in the similar fashion and may
encourage justice to poor and helpless people
of this motherland.

66. In the result, the writ petition is
allowed. The entire recovery proceedings
initiated against petitioner in respect of loan
in question are hereby quashed.

67. The petitioner shall be entitled to
costs, which I quantify to Rs. 10,00,000/-
(Ten lacs), 50% whereof shall be borne by
Bank and rest by revenue authorities and
State. In case the amount of cost is not paid
by respondents, as directed above, within
three months from today, after obtaining a
certificate from Registrar of this Court on
making an application, the said amount shall
be recovered as arrears of land revenue by
the Collector concerned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition no. 34286 of 2003

Rakesh Kumar Srivastava
 ...Petitioner
Versus
Chief Engineer, Irrigation Deptt. U.P.
Lko. And others

 ...Respondents

Counsel for the Petitioner:
Sri M.V. Verma
Sri C.B.Singh
Sri V.K. Singh
Sri S.R. Singh

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226selection of Assistant Boring Technicianunder Physically Handicapped Quotaneither in advertisement-nor in the
application form any column meant for
such category-no separate result of P.H.
Category of written test prepared-nor
candidates required to produce P.H.
Certificate at the time of interviewappointment under this category-heldselection neither impartial nor honest-
1070 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
but malice in law-result of extraneous
considerations-quashed
direction
to
issue the salary from erring officer.

Held: Para 55 and 56

This approach taints the entire action of
the respondents. It clearly smells foul
and stinky. The latent becomes patent.
The procedure and the manner in which
Selection Committee headed by Chief
Engineer
himself,
who
was
the
appointing
authority,
have
worked,
raises serious doubt over its integrity. It
shows that the selection was neither
impartial nor honest. The Selection
Committee has made selection in its
own ways, deviating the settled straight
procedure,
and
recommended
candidates (irrespective of their merits)
in
respective
categories
for
which
statutory reservation was not available.
No justification, no clarification, no
explanation whatsoever, for this kind of
selection, particularly in respect of the
category
of
Physically
Handicapped
persons has been attempted to place on
record. The dubious nature of selection
is writ large. No explanation justifies an
inference of extraneous considerations.

In absence of anything to justify bona
fide of Selection Committee, this court
has no option but to hold the above
selection tainted with malice in law. It
is
vitiated
on
account
of
recommendations
made
without
adhering
strictly
to
the
merits
of
candidates
vis
a
vis
respective
categories of reservation. The Selection
Committee carved out a category of
reservation which was not attracted to
the service and post in question. This
action of Selection Committee is tainted
with dishonest intention and in absence
of anything otherwise, this Court is
justified in inferring that they were
involved in corrupt activities, prompted
by extraneous consideration and for
collateral purpose. The selection of
certain
persons
under
physically
handicapped quota is thus clearly illegal
founded on extraneous considerations.
Case law discussed:
2003 (2) SCC 111; 2002 (7) SCC 222; 2002 (3)
SCC 496; 2011 (4) ADJ 306; 2010 (3) AWC
2583; J.T. 2009 (10) SC 309; (2009) 3 SCC
250; 2009 (2) SCALE 731; JT 2009 (4) SC 577;
2009 (6) SC 329; 2008 (7) SCC 210; JT 2009
(8) SC 501

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. These are the three writ petitions
connected with each other since basic
facts and issues are common but relief
sought by the petitioners are different.
Therefore, as requested and agreed by
learned counsel for the parties have been
heard together.

2. Sri S.U.Upadhyay, Advocate
holding brief of Ms. Manisha Pandey,
learned counsel for the petitioner in Writ
Petition No.69008 of 2006, Sri Deepak
Kumar Jaiswal, learned counsel for the
petitioners in Writ Petition No.54665 of
2011 and for respondent in Writ Petition
No.69008 and learned Standing Counsel
for the respondents.

3. Writ petition No.34286 of 2003
(hereinafter referred to as "Writ 'A' ") has
been filed by sole petitioner Rakesh
Kumar
Srivastava
assailing
result
published in daily newspaper "Dainik
Jagran" dated 17th July, 2003 (Annexure
5 to the writ petition), of recruitment held
for the
post
of
"Assistant
Boring
Technician" (hereinafter referred to as
"A.B.T.") in Irrigation Department of
State of Uttar Pradesh.

4.

Learned
counsel
for
the
petitioners has confined his case during
the course of the argument only to the
extent the aforesaid result relates to the
candidates declared successful in the
category
of
Physically
Handicapped
2 All] Rakesh Kumar Srivastava V. Chief Engineer, Irrigation Deptt. U.P. Lko. and others
1071
persons. He has also sought a mandamus
directing respondents to appoint petitioner
on the post of A.B.T. on the ground that
petitioner
is
a
general
category
(Physically
Handicapped
Person)
candidate and there being 183 general
vacancies, 5 would fall in Physically
Handicapped
quota
but
only
one
candidate has been declared successful.

5. Writ petition no. 69008 of 2006
(hereinafter referred to as "Writ 'B'") has
been filed by Rakesh Dhar Pandey
aggrieved by order dated 13th September,
2006 whereby his representation claiming
appointment on the post of 'A.B.T.' has
been rejected by Chief Engineer, Minor
Irrigation, U.P. Lucknow on the ground
that vacancies available for Physically
Handicapped persons in accordance with
prescribed quota are already occupied and
no
vacancy
is
available
for
his
appointment. The petitioner has also
challenged appointment order dated 10th
January, 2006 appointing respondent No.4
on the aforesaid post on the ground that
he has secured marks less than the
petitioner and therefore, could not have
been appointed by overlooking merit of
the petitioner and his appointment is
wholly illegal and arbitrary.

6. Writ petition No.54665 of 2011
(hereinafter referred to as "Writ 'C' ") has
been filed by four petitioners namely Ram
Abhilash Patel, Ram Janm Pal, Shiva
Kant Tripathi and Mahesh Chand Ojha.
They have assailed selection committee's
recommendation dated 30th August, 2011
recommending
for
cancellation
of
selection and appointment of certain
candidates
as
'A.B.T.'
against
the
prescribed reservation for Physically
Handicapped quota though there was no
such quota available. They have also
assailed the consequential show cause
notice dated 2.9.2011 requiring petitioners
to show cause why their appointments be
not cancelled.

7. For the purpose of narration of
facts, Writ 'B' is taken as the base case
except wherever record of other writ
petitions would be required to be referred.
It may be placed on record that during
course of arguments all the counsels have
freely referred to the record of all these
cases.

8. The facts giving rise to the
present dispute are as under:

9. An advertisement was published
notifying 401 vacancies of 'A.B.T.' vide
advertisement
No.
3/Stha6/Saha.Bo.Te/2003-04. The break up of
vacancies to various categories was; 183
General, 97 OBC, 110 SC and 11 ST.
There was no mention about reservation
of
any
vacancy
for
"physically
handicapped" persons in the aforesaid
advertisement. The petitioners (Writ 'A' &
'B')
though
disabled/physically
handicapped persons suffering more than
40% disability, but applied as a general
category candidate, in the absence of any
reservation
notified
for
"physically
handicapped person". They did not stake
their claim in the category of "Physically
Handicapped quota". The petitioners
(Writ 'A' & 'B') were allotted roll
nos.00704 and 00877 respectively. They
appeared in written examination held on
22.06.2003, result whereof was declared
on 05.7.2003 in which they were declared
successful.
Interview
letters
dated
3.7.2003 were issued and they were
interviewed on 7.7.2003. At the time of
interview, they possess all testimonials
along with disability certificate and the
1072 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
same were produced before Interview
Board. The final result was declared on
15.7.2003 wherein certain candidates
were shown to have qualified in the
category of "Physically handicapped
persons".

10. The petitioner (Writ 'A') filed the
present writ petition No.34286 of 2003
challenging result declaring candidate
successful in various categories under
"Physically Handicapped quota" on the
ground that despite three percent quota,
lessor number candidates have been
declared successful in that category. This
Court while directing respondents to file
counter affidavit, passed an interim order
on 14.8.2003 that selection of Physically
Handicapped candidates in the list of
general category shall be subject to the
result of writ petition.

11. Amazed by the situation where
certain candidates were declared to have
qualified in the category of physically
handicapped person though no such
reservation was prescribed at any point of
time, the petitioner (Writ 'B') claiming
benefit in the said category, came to this
Court in Writ petition no.35572 of 2003,
challenging advertisement as well as the
entire selection process, and also, in the
alternative, sought a mandamus against
official respondents to consider his
candidature in "physically handicapped
category". The aforesaid writ petition was
disposed of vide judgment dated 10th
August, 2006 and the relevant extract is as
under:

"I direct the respondents to give to
the petitioner an opportunity of hearing
interview within a period of ten days from
the date of production of a certified copy
of this order and thereafter declare his
result within the next period of one month.

Needless to say that the respondents
will consider the case of the petitioner
conforming to principles of natural
justice, and in accordance with law and
the Government circular with regard to
the
reservations
for
physically
handicapped persons." (emphasis added)

12. Pursuant to above, and direction
contained therein, petitioner (Writ 'B')
was again issued an interview letter on
24th
August,
2006
whereupon
he
appeared before Selection Committee.
However, by order dated 13th September
2006, impugned in this writ petition,
Chief Engineer, Minor Irrigation rejected
his candidature on the ground that quota
for 'physically handicapped' is already full
since appointments pursuant to final result
have already been made and therefore, no
benefit can be given to the petitioner.

13. Assailing appointment of
respondent no.4 (Mahesh Chandra Ojha),
the petitioner (Writ 'B') has pleaded that
he has secured only 63.83 % marks while
the petitioner (Writ 'B') had secured 70%
of marks, hence, ignoring him (the
petitioner), respondent no.4 could not
have been appointed and his appointment
is patently illegal and arbitrary.

14.

Notices
were
issued
to
respondents and time for filing counter
affidavit was allowed vide order dated
19th December, 2006.

15. A counter affidavit is filed (in
Writ 'B') on behalf of respondents No.1, 2
and 3 sworn on 15.2.2007, by Sri
R.S.Jurail,
Chief
Engineer,
Minor
Irrigation, U.P. Lucknow referring to the
2 All] Rakesh Kumar Srivastava V. Chief Engineer, Irrigation Deptt. U.P. Lko. and others
1073
provisions
of
U.P.
Public
Services
(Reservation for Physically Handicapped,
Dependants of Freedom Fighters and ExServicemen)
Act,
1993
(hereinafter
referred to as "Act, 1993" (as amended in
1997) and says that reservation for
physically
handicapped
persons
is
applicable only in such post/services
which are identified by State Government
by notification. The reservation, therefore,
is not applicable to all the services/posts
unless so identified. He thereafter referred
to Government Order dated 7th May,
1999 whereby certain service/posts were
identified for the purpose of reservation
for physically handicapped persons in
Group 'C' and Group 'D' post. He pleaded
that the post of 'A.B.T.' of Minor
Irrigation Department is not one of the
post so identified which would attract
reservation for physically handicapped
persons under the "Act, 1993". He further
says that petitioner's earlier writ petition
No.35572 of 2003 was disposed of on
10th August, 2006 but he has filed
another writ petition No.46714 of 2005
which is pending. The counter affidavit
further says that petitioner has filled the
application form and in the column
"enquiry
about
applicability
of
reservation",
he
has
answered
in
"negative". Having said so, he has further
stated in para 8 of the counter affidavit
that pursuant to advertisement dated
2.6.2003, 183 vacancies in general
category
were
advertised
and
3%
reservation in physically handicapped
person was applied in the manner
provided in 'Act, 1993' i.e. 1% for
blindness or low vision; 1% for hearing
impairment; and locomotor disability or
cerebral palsy. Only two vacancies in
"general category" became available for
physically handicapped persons against
which one was selected by Selection
Committee; and, another was given to one
Sri Mahesh Chandra Ojha, pursuant to
this Court's order dated 7th December,
2005, in Writ Petition No.47429 of 2005.
The order dated 13th September, 2006
passed by him was defended on the
ground that it was passed in accordance
with law. Since the petitioner had not
claimed
reservation
in
"physically
handicapped category" in his application
form and had not submitted disability
certificate at the time of interview, benefit
of reservation was neither admissible to
him nor could have been extended.

16. Sri Jurail, Chief Engineer also
said in his affidavit that there was an
order passed on 13th July, 2006 in
petitioner's
another
Writ
Petition
No.46714
of
2005
directing
Chief
Engineer,
Minor
Irrigation
to
pass
appropriate
order
in
respect
of
candidature of petitioner and pursuant
thereto an order was passed on 31st July,
2006
holding
that
without
recommendation by Selection Committee,
no person can be appointed. Since the
petitioner was not recommended by
Selection Committee, hence his claim for
appointment cannot be accepted. The
official respondents, again reiterated that
the post of 'A.B.T.' is not identified to
attract
reservation
for
physically
handicapped person vide Government
Order dated 7th May, 1999, and that the
petitioner
having
also
not
claimed
reservation in the said category is not
entitled for appointment under such
category.

17. The aforesaid counter affidavit
came to be considered by this Court on
19th July, 2010. Having gone through it,
this Court found the stand taken by
official respondents self contradictory. It
1074 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
became difficult to understand, how
physically handicapped quota has been
applied for making appointment of
respondent
no.4
though
no
such
reservation was available. This Court,
accordingly,
passed
following
order
requiring learned Standing Counsel to file
a supplementary counter affidavit giving
detailed facts about the circumstances in
which respondent No.4 was appointed.

"Heard learned counsel for the
petitioner, learned Standing Counsel for
the State-respondents and Sri Deepak
Jaiswal, learned counsel for respondent
no.4.

Learned
Standing
Counsel
is
directed to file a supplementary counter
affidavit specifically mentioning therein
the reason why the candidature of the
petitioner has not been considered inspite
of the order passed by this Court in Civil
Misc.Writ Petition No. 35572 of 2003
dated 10.8.2006 and will also indicate in
the affidavit as to how and why the
candidature of Mahesh Chandra Ojha
(respondent no.4 in this petition) has been
accepted when it was a clear stand taken
by the authorities in the counter affidavit
that there is no quota for handicapped.
Learned Standing Counsel is allowed two
weeks' and no more time for the aforesaid
purpose failing which the Chief Engineer
shall appear in person before this Court."
(emphasis added)

18.

Pursuant
thereto,
a
supplementary affidavit was filed on 31st
July, 2010 sworn by one P. Ram, Chief
engineer,
Minor
Irrigation,
U.P.
at
Lucknow. Therein he attempted to justify
appointment of Sri Mahesh Chandra Ojha
(respondent No.4) by referring to this
Court's judgment 25th August, 2005
passed in writ petition No.57429 of 2005
and dated 7.12.2005 passed in Writ
Petition No.74429 of 2005. The Court
found the aforesaid defence and reference
to
the
said
judgments
thoroughly
misleading.
Thereupon
it
passed
a
detailed order on 17th August, 2011, the
relevant extract thereof is as under:

"Pursuant to the said order a
supplementary counter affidavit has been
filed on 31.7.2010, which has been sworn
by Shri P. Ram, Chief Engineer, Minor
Irrigation, U.P. In paragraph 8 of the
said affidavit the stand taken is that
Mahesh Chandra Ojha (respondent no.4)
was given appointment pursuant to the
judgment of this Court dated 25.8.2005
passed in Writ Petition No.57429 of 2005
as also the order dated 07.12.2005 passed
in Writ Petition No.74429 of 2005. Such
facts are totally misleading and contrary
to record. Pursuant to order dated
25.8.2005
passed
in
Writ
Petition
No.57429 of 2005 Mahesh Chandra Ojha
submitted representation dated 5.9.2005
to the Chief Engineer, Minor Irrigation,
U.P., who vide order dated 7.10.2005,
copy whereof is annexed as annexure 15
to the Writ Petition No.74429 of 2005,
rejected his claim. Thereafter, Mahesh
Chandra
Ojha
filed
Writ
Petition
No.74429 of 2005 in which this Court by
order dated 7.12.2005 required the
respondents to produce the original
record as also to file an affidavit
specifically disclosing certain facts. It was
after the order dated 7.12.2005 when the
records were directed to be produced the
respondents
hurriedly
constituted
a
committee to consider the claim of
Mahesh
Chandra
Ojha
for
giving
appointment under the handicapped quota
and accordingly appointment letter dated
10.1.2006 was issued to him based upon
2 All] Rakesh Kumar Srivastava V. Chief Engineer, Irrigation Deptt. U.P. Lko. and others
1075
the
recommendations
made
by
the
committee on 06.01.2006.

The admitted facts in the case are
that an advertisement issued by the
department did not provide reservation
for physically handicapped. It is admitted
by the respondents that even application
form did not contain column with regard
to the details regarding candidates being
physically handicapped. The petitioner is
also physically handicapped candidate
and has applied under the general
category. When the issue with regard to
the advertisement, being bad in law, as it
did not provide reservation for the
physically
handicapped,
was
raised
before this Court, the respondents in
order
to
safeguard
their
selection,
granted appointment to Mahesh Chandra
Ojha under the physically handicapped
category. The petitioner claims to have
obtained 70 marks, much higher than that
of Mahesh Chandra Ojha, who is said to
have secured 63 marks and, therefore, he
would have better claim under the
handicapped category. It appears that the
respondents have not come with clean
hand before this Court while placing the
facts on record.

List this case on 25.8.2011 at the top.
On the said date whoever is posted as
Chief Engineer, Minor Irrigation, U.P.
shall remain present before this Court
along with an affidavit clarifying the facts
and circumstances, as recorded above, in
this order." (emphasis added)

19. Again a supplementary counter
affidavit was filed sworn by Sri P. Ram,
Chief Engineer, Minor Irrigation, the
contents whereof have been noticed by
this Court in order dated 12th September,
2011 which reads as under:

"(i) the post of Assistant Boring
Technician was not identified as a post
applicable for reservation for physically
handicapped persons under Government
order dated 7.5.1999.

(ii) the appointments given to Ram
Janam Pal, Ram Abhilash Patel, Shiva
Kant Tripathi and Mahesh Chandra Ojha
were not in accordance with law as no
benefit could have been extended to
physically handicapped candidates.

(iii) a Committee of four members
was constituted to consider the case of the
petitioner comprising of three Executive
Engineers and the Chief Engineer i.e. the
deponent of this affidavit.

(iv) after perusing the history of the
case the Committee has resolved that
firstly the petitioner cannot be given any
benefit of being physically handicap and
secondly the appointment given to the
aforementioned four candidates being
illegal required cancellation of their
appointments. The said resolution of the
Committee dated 30.8.2011 has been filed
as Annexure SCA2.

(v) SCA 3 is a letter dated 1.9.2011
issued by the deponent of this affidavit to
the Executive Engineers, Minor Irrigation
Divisions,
Gorakhpur,
Allahabad,
Raibareilly and Sitapur directing them to
cancel
the
appointments
of
the
aforementioned
four
candidates
in
accordance with law.

(vi) SCA 4 is a bunch of four show
cause notices issued by the respective
Executive Engineers of the Division to all
the four persons requiring them to show
cause within a month as to why their
appointments be not cancelled."
1076 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

20. It appears that pursuant to the
aforesaid observations and directions,
Official respondents finding it difficult to
sustain appointment of certain candidates
made in the category of "physically
handicapped persons", passed orders
recommending
cancellation
of
their
appointments. Writ 'C' is offshoot of such
orders which has been filed by four
petitioners,
who
were
beneficiaries,
namely, appointees on the post of 'A.B.T.'
and whose appointments are now in peril.

21. In Writ 'C', this Court, while
entertaining the writ petition, granted an
interim order, restraining respondents
from taking any further action pursuant to
show cause notice dated 2.9.2011, as a
result whereof, these four petitioners
(Writ-C) are still continuing in service.

22. To complete the facts, one more
affidavit may be referred which has been
filed on 10.5.2012 by respondent No.2 in
Writ 'B'. It has also been sworn by Sri P.
Ram, Chief Engineer, Minor Irrigation. In
para 3 thereof, he has categorically stated
that post of 'A.B.T.' in the Department of
Minor Irrigation has not been identified
for applying reservation for "Physically
Handicapped" persons. It would be
appropriate to reproduce own words of
respondents, contained in para 3 of
supplementary counter affidavit:

"...post
of
Assistant
Boring
Technician in the Department of Minor
Irrigation, Government of U.P., has not
been identified for being reserved for
persons with disability, as provided under
the Persons with Disabilities (Equal
Opportunities, Protection of Rights and
Full Participation) Act, 1995, hereinafter
referred to as the Act, 1995. In this
regard, reference may be had to the
Government Order dated 7th May, 1999,
whereby in exercise of powers under
Section 32 of the Act, 1995, posts have
been identified for being reserved for
persons with disability, and the post of
Assistant Boring Technician in the
Department of Minor Irrigation does not
find mention in the list of posts, identified
in
terms
of
the
aforementioned
Government Order." (emphasis added)

23. I have heard learned counsel for
the parties and perused the record.

24. The theme song of all the
petitioners irrespective of the fact whether
they are already appointed or not is
common, since the interest of petitioners
in Writ 'A' and 'B' is also that they should
be appointed, which is possible only when
benefit of reservation of Physically
Handicapped person is allowed to be
retained in the service/post in question.

25. On the contrary, learned
Standing Counsel had no option but to
plead, though in utter desperation that
there
cannot
be
a
reservation
for
Physically Handicapped persons on the
post of 'A.B.T.' since the aforesaid
service/post has not been identified for
such a reservation but simultaneously he
also tried to protect appointments already
made on the ground that due to litigation
by those persons and the orders passed by
this Court, appointments were made and
since
those
persons
have
already
continued in service for quite some time,
they may be allowed to continue.

26. Sri S.U.Upadhyay, Advocate
holding brief of Ms. Manisha Pandey,
Advocate and Sri Deepak Kumar Jaiswal,
Advocate both contended that reservation
for "Physically Handicapped" persons is a
2 All] Rakesh Kumar Srivastava V. Chief Engineer, Irrigation Deptt. U.P. Lko. and others
1077
constitutional objective and goal, founded
on International Convention and Treaty to
which Government of India is also a
signatory, in furtherance whereof, has
promulgated
"The
Persons
with
Disabilities
(Equal
Opportunities,
Protection
of
Rights
and
Full
Participation) Act, 1995 (Act No.1 of
1996)" (hereinafter referred to as "Central
Act, 1995"). Therefore, to honour such
objective, not only the petitioners of Writ
'C' should be allowed to continue but
petitioners of Writ 'A' & 'B' should also be
directed to be appointed on the post in
question.

27. I have given my serious thoughts
to the issue in question and finds that the
answer is very straight and simple.
However, apparent, wholly illegal and
dishonest act on the part of respondents
officials has caused some complications
including embarrassment and harassment
to the petitioners also.

28. There is an angular and naive
attempt to shield something which is
patently and blatantly illegal. It goes
without
saying
that
legislature
has
intended to provide special benefits in
services
to
"Physically
Handicapped
persons". The Parliament enacted Central
Act, 1995 with the aforesaid objective. Its
preamble shows to launch the Asian and
Pacific Decade of the Disabled Persons
1993-2002, a meeting was convened by
Economic and Social Commission for
Asian and Pacific Region and held at
Beijing between 1st to 5th December,
1992. It adopted The Proclamation on
Full Participation and Equality of People
with Disabilities in the Asia and the
Pacific region. India was a signatory to
this
proclamation.
The
Parliament
therefore, found it necessary to enact a
suitable legislation for achieving social
welfare obligation of State towards
prevention of disabilities, protection of
rights,
provision
of
medical
care,
education, training, employment and
rehabilitation of persons with disabilities;
to create barrier free environment, to
remove any discrimination, to counteract
any situation of abuse and exploitation, to
lay down a strategy for comprehensive
development of programmes and services
and equalisation of opportunities for
persons with disabilities and to make
special provision for integration of
persons with disabilities into the social
mainstream.

29. Sections 32 and 33, chapter VI
of Central Act, 1995, provide for
"employment".
Section
32
talks
of
"identification of posts which can be
reserved for persons with disabilities" and
Section 33 provides for reservation for
such persons in every establishment as
defined under the Central Act, 1995.

30. In the State of Uttar Pradesh
there was already a statute i.e. Act, 1993
which
had
made
provisions
for
reservation on certain number of posts in
public services. To bring the above State
Act in conformity with Central Act, 1995,
an amendment was made by U.P. Act
No.6 of 1997. I need not go in detail to
these two statutes and their consequences,
for the reason, that in Sarika Vs. State of
U.P. 2005 (4) ESC 2378, a Full Bench
decision of this Court, a question was
raised, whether Act, 1993 entitles a
physically handicapped persons to claim
reservation in public service [in that case
it was the post of Civil Judge (Junior
Division)] in the absence of identification
of the said post by State Government. The
Full Bench having gone through the
1078 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Central as well as State Act, both, and
considering relevant provisions of the two
statutes, came to the conclusion that there
is no repugnancy in the two statutes in so
far as requirement of identification of
posts
for
providing
reservation
for
physically handicapped persons in public
services is concerned. The identification
is must and unless made, it shall not
attract
reservation
for
Physically
Handicapped under Act, 1993.

31. Section 32 of Central Act as well
as the provisions of State Act, 1993, both,
have the same consequences namely both
require the State Government to identify
posts in the establishment which can be
reserved for the persons with defined
disabilities. In para 36 of the judgment,
the Court in Sarika (supra), observed:

"This
reservation
is,
however,
subject to identification of 1% of vacancy
each i.e. 3% for the persons suffering
from blindness or low vision, hearing
impairment, and locomotor disability or
cerebral palsy. The identification of
establishment and the post for such
disability, under Sections 32 and 33 of the
Central Act, is also required as condition
precedent under Section 3(1) (ii) of the
State Act. Hence, we find that so far as
the
conditionally
for
providing
reservation
for
Physically
Disabled
Persons, in public service and posts, and
the identification of vacancies for each
disability is concerned, there is no
repugnancy between the provisions of
Central Act and the State Act."

32. To the same effect is the
observation of Full Bench in Sarika
(supra) in para 38 which reads as under:

"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.

33. It is in these circumstances, in
that case, the Full Bench categorically
held
that
in
absence
of
requisite
identification
of
post,
a
physically
handicapped person is not entitled to
reservation on the post.

34. Sri Upadhyay, learned counsel
for the petitioner in Writ 'B' has sought to
refer Apex Court's decision in Bhavnagar
University Vs. Palitana Sugar Mill Pvt.
Ltd. & Ors. 2003(2) SCC 111 which was
a matter relating to land acquisition under
Gujarat Town Planning and Urban
Development Act, 1976. I fail to
appreciate how that judgment would have
any application in the present case and, in
my view, the reliance is totally misplaced
and misconceived.

35. Learned counsel for petitioner,
during course of arguments, referred to
para 59 of the judgment in Bhavnagar
University (supra), which says, "a
decision, as is well-known, is an authority
for which it is decided and not what can
logically by deduced therefrom. It is also
well settled that a little difference in facts
or additional facts may make a lot of
difference in the precedential value of a
decision." The Apex Court in making the
aforesaid observations referred to and
relied on its earlier decision in Delhi
Administration (NCT of Delhi) Vs.
Manoharlal,
2002
(7)
SCC
222,
2 All] Rakesh Kumar Srivastava V. Chief Engineer, Irrigation Deptt. U.P. Lko. and others
1079
Haryana Financial Corporation and
Anr. v. Jagdamba Oil Mills and Anr.
2002 (3) SCC 496. The proposition of
law admits no exception and is well
settled. I am respectfully bound by it but
find it wholly inappropriate for its
application to the present case. Here the
respondents have categorically come with
a case that posts of 'A.B.T.', in Minor
Irrigation Department of State of Uttar
Pradesh have not been identified for
attracting
reservation
meant
for
"Physically Handicapped" persons. The
relevant Government Order, whereby
certain services/posts have been identified
to attract such reservation, does not
include the post of 'A.B.T.' in the
Department of Minor Irrigation.

36. Learned counsel for the
petitioners neither could have been able to
lay their hands to controvert the aforesaid
documentary evidence and/or the stand of
respondents nor have been able to place
anything otherwise before this Court to
show that the post in question has been
identified and is available for attracting
reservation
meant
for
"Physically
Handicapped" persons under Act, 1993.

37. On the contrary, both the learned
counsels for the petitioners have tried to
argue that since it is the Constitutional
mandate to take welfare measures for the
benefit
of
physically
handicapped
persons, a benevolent approach must be
taken by this Court which may fulfill such
welfare measures instead of taking strict
legalistic approach in this matter.

38. I am afraid this is an argument
asking this Court to act in apparent breach
of law. The Court is being asked to extend
its so called benevolent sympathetic
approach for giving public employment to
the persons who are not entitled and
eligible for the same in law. Any such
endeavour on the part of this Court would
straightway infringe other eligible and
qualified candidate's fundamental right of
equal opportunity of employment in
public
employment
enshrined
under
Article 16 of the Constitution. Rule of law
cannot be breached on the so called
lenient approach on the ground of
benevolence, sympathy etc. It is no doubt
true that jurisdiction of this Court under
Article 226 is equitable and discretionary
but simultaneously a discretion, which
would lead apparent breach of law, should
not and cannot be exercised.

39. This Court in Shiv Kumar
Dwivedi Vs. State of U.P. & Ors., 2011
(4) ADJ 306, in para 23, said:

"So far as sympathetic consideration
is concerned, as argued by learned
counsel for the petitioner it is also well
settled that sympathy which is not within
the precincts of law cannot be founded
basis to grant something which is
otherwise impermissible."

40. In Vibha Srivastava Vs.
Cantonment Board Varanasi & Ors.,
2010(3) AWC 2583 this Court, in para
22, observed:

"22. Now coming to the second
question, I am of the view that the
appointment made on a post which is not
in accordance with law would not confer
any right upon the incumbent either to
hold the post or to continue in service on
such post in any manner. Mere length of
service or lack of any fault on the part of
the employee concerned is not relevant
inasmuch it is the observance of statutory
provisions and not the personal or
1080 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
individual act on the part of the parties
concerned which would decide the rights
of the persons to hold the post. If a person
does
not
possess
the
requisite
qualification or is otherwise appointed on
a particular post in violation of the
statute, he/she cannot claim to have a
right to continue in service simply
because it has worked for a long time for
the reason that estoppel does not apply
against statute and any appointment
against the statute is void ab initio. Even,
on the ground of sympathy, no such relief
can be granted since a Court of law is
primarily concerned with rule of law
consistent with constitutional provision
and mere sympathy, which is directly
against the statute and constitutional
provisions
would
be
a
case
of
misapplication of the understanding of
principles of equity and justice. It would
be difficult to hold that an action which
would be contrary to statute has the effect
of violating others' fundamental right of
equal opportunity of employment, can be
equitable and sympathetic though it is
otherwise unconstitutional. A sympathy or
equity which will result in upholding
illegal and unconstitutional orders or acts
can not be considered to be within the
four
corners
of
principles
of
administration of justice in equitable
exercise of power under Article 226 of the
Constitution. It would be a travesty of
justice if we allow the concept of
sympathy or equity to influence the mind
of the Court even when the action is ex
facie
illegal
and
unconstitutional,
violative of Article 16 (1) of the
Constitution. Recently, the Apex Court
has declined to grant any relief to a
person merely because it has worked for
long time though did not possess requisite
qualification at the time of appointment in
accordance
with
rules
and
the
appointment is not in accordance with the
procedure prescribed."

41. In Shesh Mani Shukla Vs.
District Inspector of Schools Deoria
and others J.T. 2009 (10) SC 309, the
court said:

"It is true that the appellant has
worked for a long time. His appointment,
however, being in contravention of the
statutory provision was illegal, and, thus,
void ab initio. If his appointment has not
been granted approval by the statutory
authority, no exception can be taken only
because the appellant had worked for a
long time. The same by itself, in our
opinion, cannot form the basis for
obtaining a writ of or in the nature of
mandamus; as it is well known that for the
said purpose, the writ petitioner must
establish a legal right in himself and a
corresponding legal duty in the State.
{See Food Corporation of India & Ors. v.
Ashis Kumar Ganguly & Ors. [2009 (8)
SCALE 218]}. Sympathy or sentiments
alone, it is well settled, cannot form the
basis for issuing a writ of or in the nature
of mandamus. {[See State of M.P. & Ors.
v. Sanjay Kumar Pathak & Ors. [(2008) 1
SCC 456]}"

42. In State of West Bengal &
others Vs. Banibrata Ghosh & others
(2009) 3 SCC 250, such a request was
declined to be accepted by the Apex
Court observing that it would be a
misplaced sympathy.

43. In D.M. Premkumari Vs. The
Divisional
Commissioner,
Mysore
Division and others 2009 (2) SCALE
731, the Court observed :
2 All] Rakesh Kumar Srivastava V. Chief Engineer, Irrigation Deptt. U.P. Lko. and others
1081

"The law is merciless", is a most
frequently quoted saying. It has led
people to mistakenly think that it is
separated from feelings of righteousness.
We
have
become
used
to
the
understanding that such emotions as
indignation, sorrow and compassion
should not exist in legal cases, especially
not in judiciary. This, in our view, is a
misunderstanding.