# Shyam Narain Tewari v. State of U.P. and others

- **Citation:** (2007) 2 ILRA 562
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-05-18
- **Case number:** Civil Misc. Writ Petition No. 12656 of 1999
- **Bench:** V.M. Sahai, Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-narain-tewari-v-state-of-u-p-and-others-40938
- **Pages:** 6

## Headnote

Sri M.A. Qadeer
Sri Niraj Upadhyaya
Sri Pushpendra Singh
S.C.

(A) U.P. Public Services (Reservation of
Physically Handicapped Dependents of
Freedoms Fighters of Ex-Servicemen)
Amendment Act 1997-Reservation for
Physically Handicapped persons-Post of
Child
Development
Project
Officer
advertised on 31.12.97-providing 2%
reservation-while
amendment
Act
become effective from 31.7.97-petitioner
and one Mr. Anil Kumar secured 599
marks under P.H. Quota Mr. Anil Kumar
2 All] Shyam Narain Tewari V. State of U.P. and others
563
selected
as
his
marks
in
written
examination
were
higher
than
petitioner-state government as well as
commission committed error appearent
on the face of record-held-petitioner
entitled for selection-if no post available
one more supernumerary post be created
to
appoint
the
petitioner-but
the
seniority would be counted from the date
of appointment.

Held: Para 8

The State Government as well as the
Commission have committed an error
apparent on the face of the record in not
providing 3% reservation to physically
handicapped candidates in the aforesaid
selection. Therefore, one more vacancy
was
to
be
filled
from
physically
handicapped candidates and since the
petitioner
had
secured
599
marks
equivalent to to the marks secured by Sri
Anil Kumar who was selected at serial
no.2 under the physically handicapped
candidates
category,
therefore,
the
petitioner was also entitled for selection
and
appointment
as
physically
handicapped candidate on the post of
Child Development Project Officer.

(B) Constitution of India, Art. 226Practice of Procedure-Petitioner under
physically Handicapped Quota-Selection
made in 1997-writ petition filed in 1999pendency of long period-petitioner can
not be put to suffer-for the omission on
the part of state government as well as
the commission.

Held: Para 9

In our considered opinion, since the writ
petition was filed by the petitioner
raising his grievances in March 1999
itself and the petition remained pending
for disposal before this court, therefore,
the petitioner cannot be made to suffer
due to the pendency of the writ petition
and he is entitled to be appointed on the
post
of
Child
Development
Project
Officer and if no post is available a
direction is liable to be issued to the
State
Government
to
create
a
supernumerary post and appoint the
petitioner as Child Development Project
Officer. However, we make it clear that
on such appointment the petitioner shall
not be given any seniority benefit w.e.f.
the
date
of
appointment
of
other
candidates who had been selected and
given
appointment
in
pursuance
of
advertisement in question. The seniority
of
the
petitioner
shall
be
counted
forthwith
from
the
date
of
his
appointment.
Case law discussed:
2006 (3) ESC-1980 (DB) relied on.

## Text

562 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Sandhawalia (1994) 2 SCC 240, as
already cited above.

15. When rules are silent about
payment of interest, whether an individual
is entitled to grant to interest on equity
basis? Answer to this question is available
in Union of India Vs. J.K. Goel (Dr) 1995
Supp (3) SCC 161.

16. In J.K. Synthetics Ltd. Vs.
Commercial Taxes Officer, AIR 1994 SC
2393, the Constitution Bench of the
Hon'ble Apex Court overruled its earlier
judgment in Associated Cement Ltd.
(supra) on certain points but observed as
under:-

"Therefore, any provision made in a
Statute for charging or levying interest on
delayed payment of tax must be construed
as a substantive law and not adjectival
law."

17. In Union of India & Ors. Vs.
Upper Ganges Sugar Industries Ltd.,
(2005) 1 SCC 750, after considering
various aspects of interest, the Court held
that the interest can be granted on the
grounds of equity or in view of the
statutory requirement but where the
amount has not been withheld without any
justification, the equity would not apply.
The Court held that in absence of any
provision in the contract or any statutory
provision and not justifying on equity, the
interest should not be awarded.

18.

Thus,
the
law
can
be
summarised that the interest, being
compensatory
in
nature,
should
be
awarded
if it is
provided
in the
contract/agreement,
or
the
statutory
provisions provide for it. It may also be
awarded on equitable ground, provided
the facts and circumstances of the case
justify it and the law does not prohibit it.

19. If the instant case is examined in
the aforesaid settled legal propositions,
the case does not present special features
warranting any interference with the
impugned judgment and order of the
learned Tribunal.

20. Petition is totally misconceived
and accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2007

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 12656 of 1999

Shyam Narain Tewari
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Mahendra Bahadur Singh

Counsel for the Respondents:
Sri M.A. Qadeer
Sri Niraj Upadhyaya
Sri Pushpendra Singh
S.C.

(A) U.P. Public Services (Reservation of
Physically Handicapped Dependents of
Freedoms Fighters of Ex-Servicemen)
Amendment Act 1997-Reservation for
Physically Handicapped persons-Post of
Child
Development
Project
Officer
advertised on 31.12.97-providing 2%
reservation-while
amendment
Act
become effective from 31.7.97-petitioner
and one Mr. Anil Kumar secured 599
marks under P.H. Quota Mr. Anil Kumar
2 All] Shyam Narain Tewari V. State of U.P. and others
563
selected
as
his
marks
in
written
examination
were
higher
than
petitioner-state government as well as
commission committed error appearent
on the face of record-held-petitioner
entitled for selection-if no post available
one more supernumerary post be created
to
appoint
the
petitioner-but
the
seniority would be counted from the date
of appointment.

Held: Para 8

The State Government as well as the
Commission have committed an error
apparent on the face of the record in not
providing 3% reservation to physically
handicapped candidates in the aforesaid
selection. Therefore, one more vacancy
was
to
be
filled
from
physically
handicapped candidates and since the
petitioner
had
secured
599
marks
equivalent to to the marks secured by Sri
Anil Kumar who was selected at serial
no.2 under the physically handicapped
candidates
category,
therefore,
the
petitioner was also entitled for selection
and
appointment
as
physically
handicapped candidate on the post of
Child Development Project Officer.

(B) Constitution of India, Art. 226Practice of Procedure-Petitioner under
physically Handicapped Quota-Selection
made in 1997-writ petition filed in 1999pendency of long period-petitioner can
not be put to suffer-for the omission on
the part of state government as well as
the commission.

Held: Para 9

In our considered opinion, since the writ
petition was filed by the petitioner
raising his grievances in March 1999
itself and the petition remained pending
for disposal before this court, therefore,
the petitioner cannot be made to suffer
due to the pendency of the writ petition
and he is entitled to be appointed on the
post
of
Child
Development
Project
Officer and if no post is available a
direction is liable to be issued to the
State
Government
to
create
a
supernumerary post and appoint the
petitioner as Child Development Project
Officer. However, we make it clear that
on such appointment the petitioner shall
not be given any seniority benefit w.e.f.
the
date
of
appointment
of
other
candidates who had been selected and
given
appointment
in
pursuance
of
advertisement in question. The seniority
of
the
petitioner
shall
be
counted
forthwith
from
the
date
of
his
appointment.
Case law discussed:
2006 (3) ESC-1980 (DB) relied on.

(Delivered by Hon'ble V.M.Sahai, J.)

1. The Public Service Commission,
U.P. Allahabad (in brief the Commission)
issued an advertisement no. A-7-E-1/9798 on 31.12.1997 inviting applications for
144 posts of Child Development Project
Officer (Bal Vikas Pariyojna Adhikari).
The petitioner being qualified and eligible
applied in pursuance of the aforesaid
advertisement and claimed reservation as
physically handicapped candidate. He
submitted a certificate showing that he
was physically handicapped person. The
written
examination
was
held
on
11.4.1998 to 13.4.1998. The petitioner
was declared successful in the written
examination with roll no.022666 and was
called for the interview. After the
interview was over, the Commission
declared the result. The Commission sent
its
recommendation
to
the
State
Government
for
appointing
122
candidates for plain cadre and another 22
candidates were recommended for hill
cadre on 10.12.1998. The petitioner was a
candidate of plain cadre. He secured total
599 marks in written examination and
interview and Ms Shriddha Katiyar was
recommended at serial no.1 in the merit
list of physically handicapped candidates
564 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
for appointment. Sri Anil Kumar and the
petitioner had secured 599 marks each.
The name of Sri Anil Kumar was
recommended
at
serial
no.2
for
appointment as physically handicapped
candidate as only 2 vacancies were
reserved
under
the
physically
handicapped
category
by
the
Commission. The petitioner's name was
not recommended though he had secured
equal marks along with Sri Anil Kumar.
The said Sri Anil Kumar who had secured
higher marks in written test had to be
placed higher in the merit list.

2. This writ petition has been filed
by the petitioners on the ground that the
Commission had illegally applied only
2% reservation quota for physically
handicapped candidates though as per The
Uttar
Pradesh
Public
Services
(Reservation for Physically Handicapped,
Dependants of Freedom Fighters and ExServicemen)(Amendment)
Act,
1997,
U.P. Act No.6 of 1997 which was
published in U.P. Gazette Extraordinary
on 31st July, 1997 provided for 3%
reservation for physically handicapped
candidates.

3. We have heard Sri Ashok Khare,
learned senior counsel assisted by Sri
Mahendra
Bahadur
Singh
for
the
petitioner,
learned
standing
counsel
appearing for respondent no.1 and 2 and
Sri
M.A.
Qadeer,
learned
counsel
appearing for respondent no.3.

4. Shri Ashok Khare, learned senior
counsel for the petitioner has urged that
no doubt, requisition was sent by the State
Government to the Commission on
8.4.1997 reserving only 2% posts for
physically handicapped candidates but in
view of the fact that U.P. Act No. 6 of
1997 came into force w.e.f. 9.7.1997 was
applicable and the Commission had
issued the advertisement on 31.12.1997,
therefore, since the law had been
amended
w.e.f.
9.7.1997
any
advertisement issued by the Commission
or written test or interview held thereafter
was to be held in conformity with the U.P.
Act No.6 of 1997. On the other hand, Sri
M.A. Qadeer, learned counsel for the
respondents has urged that since the
requisition
was
sent
by
the
State
Government to the Commission on
8.4.1997, providing only 2% reservation
in favour of the physically handicapped
candidates, therefore, only two vacancies
were reserved by the commission under
the aforesaid category. Sri Vikas Tripathi,
learned standing counsel has supported
the arguments of Sri M.A. Qadeer.

5. U.P. Act No.6 of 1997 has
amended section 3 of the principal Act,
U.P. Act no.4 of 1993 and now under the
physically handicapped category 3%
vacancy had been reserved. This question
had been considered by this court in Dr.
Ravindra Kumar Pandey v. State of U.P.
and others, 2006(3) ESC 1880(DB)
wherein this court had considered the
effect of amendment made in section 3 of
the principal Act and had laid down the
law as to how the vacancy of physically
handicapped candidates had to be worked
out and how horizontal reservation for
physically handicapped candidates had to
be applied. The court has held as under:

".......From
the
amendment
introduced by U.P. Act No.6 of 1997 it
appears obvious that the State in keeping
with the Central enactment provided
reservation for physically handicapped
incorporating the provision of one percent
for
each
category
of
physically
2 All] Shyam Narain Tewari V. State of U.P. and others
565
handicapped. Even though the State Act
has not specifically provided that three
percent of the vacancies shall be reserved
for physically handicapped but the two
enactments the Central and State dealing
with the same subject and the Central Act
having
directed
every
appropriate
government to provide not less than three
percent for physically handicapped, the
State enactment has to be read as
providing three percent reservation for
physically handicapped....."

The court has further held that:

".....It is only those persons who
suffer from the disability mentioned in the
section
who
are
entitled
to
claim
reservation. The extent of protection has
been determined by Central Legislature
by directing that it should not be less than
three percent. Who would be entitled for
such benefit is mentioned and one percent
has been marked for each category of
disability.
Therefore,
reservation
for
physically handicapped has to be worked
out on three three percent at the stage of
direct reservation in public services and
posts in connection with the affairs of the
State....."

The controversy involved in this petition
is covered by the decision in Dr. Ravindra
Kumar Pandey case (supra).

6. It is not disputed by the learned
counsel for the respondents that there
were 122 posts of Child Development
Project Officers to be filled. If 3%
reservation is applied under the U.P. Act
No.6 of 1997, then 3 vacancies would be
reserved and would be available to be
filled
by
physically
handicapped
candidates. But the respondents have
filled only two vacancies of physically
handicapped
candidates
by
applying
reservation of 2% only. In our opinion,
since the Amendment Act U.P. Act No.6
of 1997 had come into force on 9.7.1997
prior to the advertisement and initiation of
the selection process, namely, the written
test and the interview, therefore, the
physically handicapped candidates were
entitled for 3% reservations and 3
vacancies were required to be reserved for
physically
handicapped
candidates.
Section 5 of the principal Act had been
amended
and
it
had
clearly
been
explained that the selection process shall
be deemed to have been initiated where
under
the
relevant
service
rules
recruitment has to be made on the basis of
written test and the interview, if the
written test has started.

7. Section 5 of U.P. Act No.6 of
1997 by which section 5 of the principal
Act U.P. Act No.4 of 1993 has been
amended is extracted as under:-

"5. Savings- (1) The provisions of
this Act as amended by the Uttar Pradesh
Public
Services
(Reservation
for
Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen)
(Amendment) Act, 1997 shall not apply to
cases in which selection process has been
initiated before the commencement of the
said Act and such cases shall be dealt
with in accordance with the provisions of
this Act as they stood before such
commencement.

Explanation - For the purposes of this
sub-section the selection process shall be
deemed to have been initiated where,
under
the
relevant
service
rules,
recruitment is to be made on the basis of,
-
566 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(i) written test or interview only, the
written test or the interview, as the
case may be has started, or
(ii) both written test and interview, the
written test has started.
(2) The provisions of this Act shall
not apply to the appointment to be made
under the Uttar Pradesh Recruitment of
Dependent of Government Servant Dying
in harness Rules, 1974."

8.

In
the
instant
case
the
advertisement itself was issued after U.P.
Act No.6 of 1997 had come into force,
therefore, the selection process was not
initiated as provided by section 5 of the
amending act. Commission is a statutory
body. It is bound by the law of the State.
Once the U.P. Act No.4 of 1993 was
amended by U.P. Act no.6 of 1997 which
came into force on 9.7.1997 the State
Government was under a legal duty to
modify its requisition dated 8.4.1997 sent
to the Commission. Even the commission
could have sought a clarification from the
State Government in view of changes
made
in
law
providing
horizontal
reservation to physically handicapped
candidates. Both have failed in their legal
duty for which the petitioner cannot be
made to suffer. The State Government as
well as the Commission have committed
an error apparent on the face of the record
in not providing 3% reservation to
physically handicapped candidates in the
aforesaid selection. Therefore, one more
vacancy was to be filled from physically
handicapped candidates and since the
petitioner
had
secured
599
marks
equivalent to to the marks secured by Sri
Anil Kumar who was selected at serial
no.2 under the physically handicapped
candidates
category,
therefore,
the
petitioner was also entitled for selection
and
appointment
as
physically
handicapped candidate on the post of
Child Development Project Officer. It is
not the case of respondents that any other
candidate of the first two categories of
disabilities provided in the Act were
available, therefore, the petitioner who
belonged to the third category of
disability is entitled for selection and
appointment.

9. Both Sri M.A. Qadeer, learned
counsel for the Commission and Sri Vikas
Tripathi, learned standing counsel have
vehemently urged that recommendations
have been sent by the Commission in the
year 1998 and after lapse of about nine
years no vacancy is available on which
the petitioner could be appointed. We
have considered the submissions of
learned counsel for the respondents. In
our considered opinion, since the writ
petition was filed by the petitioner raising
his grievances in March 1999 itself and
the petition remained pending for disposal
before this court, therefore, the petitioner
cannot be made to suffer due to the
pendency of the writ petition and he is
entitled to be appointed on the post of
Child Development Project Officer and if
no post is available a direction is liable to
be issued to the State Government to
create a supernumerary post and appoint
the petitioner as Child Development
Project Officer. However, we make it
clear that on such appointment the
petitioner shall not be given any seniority
benefit w.e.f. the date of appointment of
other candidates who had been selected
and given appointment in pursuance of
advertisement in question. The seniority
of the petitioner shall be counted
forthwith
from
the
date
of
his
appointment.
2 All] Sanjai V. State of U.P.
567
10. In the result, this writ petition
succeeds and is allowed. A writ of
mandamus is issued to the Public Service
Commission,
U.P.
Allahabad
to
recommend the name of the petitioner
under
the
physically
handicapped
category for appointment on the post of
Child Development Project Officer within
a period of one month from the date a
certified copy of this order is produced
before
the
Commission.
State
Government is also directed to issue
appointment letter to the petitioner in the
vacancy
on
the
post
of
Child
Development Project Officer if it is
available within a further period of two
months
after
getting
the
necessary
formalities completed within the aforesaid
period. However, if there is no post
available then the State Government is
directed to create a supernumerary post
and appoint the petitioner as Child
Development Project Officer within the
aforesaid period.

Parties shall bear their own costs.
Petition allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.04.2007

BEFORE
THE HON'BLE K.N. SINHA, J.
THE HON'BLE S.K. JAIN, J.

Criminal Appeal No. 3456 of 1999

Sanjay

...Appellant (In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Appellant:
Sri R.P. Singh
Sri Sunil Singh

Counsel for the Opposite Party:
A.G.A.

Indian Penal Code-Section-Sentence of
Life Imprisonment reduced to 10 years
Rigorous Imprisonment -considering two
daughters of marrigble age victim aged
about 10-11 years girl-accused the real
uncle-improbable for a mother to make
false allegation of Sexual assault on her
minor daughter against her own dewar.

Held: Para 16 and 17

Thus, we are of the opinion that the
judgement, holding the appellant guilty,
recorded by the Sessions Court, is based
on evidence and sound reasoning. The
conviction of the appellant is therefore,
maintained.

However, keeping in view the law laid
down by Hon'ble the Supreme Court in
the case of T.K. Gopal alias Gopi (Supra)
and the fact that the appellant has two
daughters of marriageable age, we are
inclined to consider the submission of
the learned counsel for the appellant
regarding reduction in the sentence. The
appeal is hereby dismissed. The sentence
of life imprisonment is reduced to a
sentence
of
ten
years'
rigorous
imprisonment.
Case law discussed:
2000 CAR 366 (S.C.) relied on.

(Delivered by Hon'ble K.N. Sinha, J.)

1. This criminal appeal has been
filed by the sole appellant Sanjay against
the judgement and order dated 14.12.1999
passed by learned Additional Sessions
Judge, XIII, Ghaziabad in sessions trial
no. 70 of 1999 State Vs. Sanjay, where by
the learned Sessions Judge found the
appellant guilty of charges against him
under section 376 Indian Penal Code and
sentenced him to undergo imprisonment
for life along with fine of Rs.5000/- and
in default of payment of fine, to undergo