# State of U.P. and others v. Kuldeep

- **Citation:** (2008) 2 ILRA 369
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-05
- **Bench:** H.L. Gokhale, C.J. Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-kuldeep-41168
- **Pages:** 4

## Headnote

Sri Ashok Khare
Sri Sunil Kumar Srivastava

U.P. Public Service (Reservation for
physically Handicapped Dependents of
Freedom Fighters and Ex-Service Man)
Act 1993-as amended 1997-2(e)-Loco
motor disability-without description of
percentage-even in advertisement 40%
disability not mentioned-petitioner with
5% disability was selected-completed
B.T.C.
Training
course
much
earlier
2004-cancellation
of
appointmentabsolutely technical and bureaucratic
manner-Single Judge rightly quashed the
impugned
order-No
interference
by
appellate court required.

Held: Para 9

It is also material to note that the
respondent had not made any wrong
mention in his application form. He had
disclosed that he was suffering from 5%
disability and that was accepted by the
authorities concerned. He was given
admission and he thereafter joined the
course
and
passed
the
same
in
September, 2002. He was thereafter
appointed
as
Assistant
Teacher
on
8.11.2002, which post he joined and
started working. Much later i.e. on
29.9.2004 a complaint was filed and
prima facie, in our view, in an absolutely
technical and bureaucratic manner the
officer concerned has proceeded to
cancel
the
appointment
of
the
respondent writ-petitioner. The officer
concerned ought to have noted that
under the advertisement there was no
specific reference to 40% disability and
this being so, when a person has himself
disclosed the percentage of his physical
disability correctly and when he had
already
been
admitted
and
has
completed the course, there was no
reason for the officer concerned to
cancel the appointment and to issue a
direction
for
cancellation
of
his
certificate which was earned by the
respondent after completing his course.

## Text

2 All] State of U.P. and others V. Kuldeep
369
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2008

BEFORE
THE HON'BLE H.L. GOKHALE, C.J.
THE HON'BLE VINEET SARAN, J.

Special Appeal No. (110) of 2008

State of U.P. and others
...Appellants
Versus
Kuldeep

 ...Respondent

Counsel for the Appellants:
Sri M.C. Chaturvedi
Sri Ravi Shanker Prasad
S.C.

Counsel for the Respondent:
Sri Ashok Khare
Sri Sunil Kumar Srivastava

U.P. Public Service (Reservation for
physically Handicapped Dependents of
Freedom Fighters and Ex-Service Man)
Act 1993-as amended 1997-2(e)-Loco
motor disability-without description of
percentage-even in advertisement 40%
disability not mentioned-petitioner with
5% disability was selected-completed
B.T.C.
Training
course
much
earlier
2004-cancellation
of
appointmentabsolutely technical and bureaucratic
manner-Single Judge rightly quashed the
impugned
order-No
interference
by
appellate court required.

Held: Para 9

It is also material to note that the
respondent had not made any wrong
mention in his application form. He had
disclosed that he was suffering from 5%
disability and that was accepted by the
authorities concerned. He was given
admission and he thereafter joined the
course
and
passed
the
same
in
September, 2002. He was thereafter
appointed
as
Assistant
Teacher
on
8.11.2002, which post he joined and
started working. Much later i.e. on
29.9.2004 a complaint was filed and
prima facie, in our view, in an absolutely
technical and bureaucratic manner the
officer concerned has proceeded to
cancel
the
appointment
of
the
respondent writ-petitioner. The officer
concerned ought to have noted that
under the advertisement there was no
specific reference to 40% disability and
this being so, when a person has himself
disclosed the percentage of his physical
disability correctly and when he had
already
been
admitted
and
has
completed the course, there was no
reason for the officer concerned to
cancel the appointment and to issue a
direction
for
cancellation
of
his
certificate which was earned by the
respondent after completing his course.

(Delivered by Hon'ble H.L. Gokhaley, CJ)

1. Heard Sri M.C. Chaturvedi, Chief
Standing Counsel of the State of U.P.
along with Sri Ravi Shanker Prasad for
the appellants. Sri Ashok Khare, Senior
Advocate
with
Sri
Sunil
Kumar
Srivastava appear for the respondent.

2. The appellants seek to challenge
the order of the learned Single Judge
dated 9.5.2007 whereby the learned Judge
has allowed the petition filed by the
respondent herein.

3. The short facts leading to this
appeal are this wise. The respondent is a
physically handicapped person with 5%
locomotor disability. In pursuance to an
advertisement for two years B.T.C.
Course 2000, he applied for joining the
same. The course was to be conducted in
two academic years 2000-01 and 2001-02.
The respondent was admitted to that
course in the quota for physically
handicapped persons, on the basis of his
physical disability. He cleared both the
370 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
examinations and on 20.9.2002 received
the
mark-sheet
and
thereafter
the
certificate also. He subsequently joined as
an Assistant Teacher in a government
primary school run by the Basic Shiksha
Parishad. It is material to note that there is
a need of large number of primary
teachers (about 60,000) in the State of
U.P. and under "Sarva Shiksha Abhiyan"
special short courses known as Special
B.T.C. Courses are also separately being
run by the State of U.P. for making such
appointments on the post of Assistant
Teachers.

4. In this background, it appears that
some kind of complaint was received
against the petitioner by the authorities on
29.9.2004, which led to an enquiry by the
District
Basic
Education
Officer,
Fatehpur. The complaint was this wise.
According to the understanding of the
officer concerned, for being eligible to the
handicapped category one must have 40%
locomotor disability and on that footing
the respondent could not have been
admitted to the course in that category.
The respondent had got 174.74 quality
marks whereas the last candidate admitted
in the general category was at 186.62
marks. On that basis the officer cancelled
the appointment of the respondent as
Assistant Teacher and recommended that
steps be taken to cancel the certificate of
the respondent. Such order was passed by
the
Basic
Shiksha
Adhikari
on
15.10.2005.

5. Being aggrieved by this order, the
respondent filed the writ petition. It was
heard by a learned Single judge. The
learned Judge noted that under the
advertisement for the particular course it
was not specifically mentioned that one
should suffer 40% locomotor disability.
The learned judge also noted that BTC
Course is essentially a training course for
teachers and is not for employment as
such under the State Government. For
these reasons the learned Judge set aside
the order dated 15.10.2005 and also
directed that the benefits which must have
accrued to the petitioner be released to
him within a period of two months.

6. Sri M.C.Chaturvedi, learned
counsel for the appellants, submitted that
requirement of 40% disability is under the
Central Act known as The Person With
Disabilities
(Equal
Opportunities,
Protection
of
Rights
and
Full
Participation) Act, 1995. He therefore
submitted that the officer was right in
cancelling the certificate. He also drew
our attention to a Circular issued by the
Secretary of the concerned department of
the State Government dated 30.9.2000
which refers to this Act and lays down the
requirement of 40% disability for being
considered in such category.

7. Sri Khare, learned senior counsel
appearing for the respondent, on the other
hand submitted that this Circular will not
govern the case of the respondent for a
number of reasons. Firstly because he was
admitted in the course 2000-01, the
session of which starts from July 2000,
and obviously this Circular is subsequent
thereto. That apart, he also pointed out
that as far as the concerned advertisement
goes, it reserves 2% seats for physically
handicapped and it refers to The Uttar
Pradesh Public Services (Reservation for
Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen)
Act, 1993. This Act was amended in the
year 1997 and the definition of a
physically
handicapped
person
as
provided in section 2(e) refers, amongst
2 All] State of U.P. and others V. Kuldeep
371
others, to locomotor disability or cerebral
palsy. It does not as such, lay down any
percentage of such disability. This being
the position, in his submission, the order
passed by the officer was obviously
wrong order and the order passed by the
learned Judge was fully justified.

8. We have noted the submissions of
both the counsel. On the face of it the
facts of the present case cannot be said to
be governed under the Central Act. It was
a training course started by the State
Government.
The
State
Government
referred to its own Act of 1993,
specifically in the advertisement and
under the said Act there is no specific
requirement that one must be suffering
with 40% locomotor disability. That
apart, the Circular issued by the State
Government is of 30.9.2000, of which
there is no mention in the advertisement
(although certain other Circulars have
been mentioned therein). Even otherwise,
the said Circular dated 30.9.2000 will
surely not apply to a person who has been
admitted to the course of the academic
year 2000-01. This is on the footing that
the Circular refers to the Central Act and
requires compliance thereof.

9. It is also material to note that the
respondent had not made any wrong
mention in his application form. He had
disclosed that he was suffering from 5%
disability and that was accepted by the
authorities concerned. He was given
admission and he thereafter joined the
course and passed the same in September,
2002. He was thereafter appointed as
Assistant Teacher on 8.11.2002, which
post he joined and started working. Much
later i.e. on 29.9.2004 a complaint was
filed and prima facie, in our view, in an
absolutely technical and bureaucratic
manner
the
officer
concerned
has
proceeded to cancel the appointment of
the respondent writ-petitioner. The officer
concerned ought to have noted that under
the advertisement there was no specific
reference to 40% disability and this being
so, when a person has himself disclosed
the percentage of his physical disability
correctly and when he had already been
admitted and has completed the course,
there was no reason for the officer
concerned to cancel the appointment and
to issue a direction for cancellation of his
certificate which was earned by the
respondent after completing his course.

10. As such the learned Single Judge
has rightly quashed the order dated
15.10.2005 and granted all consequential
benefits to the respondent. Such judgment
does not call for any interference.

11. We are told that subsequent to
this order of 15.10.2005 and in pursuance
thereof, the appellants have proceeded to
pass another order on 15.1.2008 which
now cancels the certificate issued to the
respondent. This order specifically refers
to
the
earlier
direction
issued
on
15.10.2005. It is a consequential order.
Inasmuch as the earlier order is set aside,
this order dated 15.1.2008 will also have
to be held as inoperative and not effecting
the rights of the respondent in any manner
whatsoever.

12. For these reasons we dismiss
this appeal with cost, quantified at
Rs.5,000/- to be paid to the respondent.
---------
372 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 35276 of 2002

Sri Mainuddin

...Petitioner
Versus
Managing Director, U.P. State Road
Transport
Corporation, Lucknow and
others

...Respondents

Counsel for the Petitioner:
Sri A.R. Dube
Sri Satyendra Singh
Sri Sanjay Dwivedi
Sri Anubhav Chandra

Counsel for the Respondents:
Sri Ganga Prasad Gupta
Sri Neeraj Tripathi

Constitution
of
India-Practice
&
Procedure-Dismissal from Service-earlier
High Court remanded the matter for
consideration of question of punishmentas
with
similar
charges
alongwith
petitioner
28
employees
in
same
incident-punished with stoppage of 4 or
5 increments-even on second inninginflicted same punishment of dismissalheld-approach of authority-contrary to
law-when the matter remitted back with
limited point of consideration-not open
for the authority to sit over the Court.

Held: Para 16

However,
such
argument
could
be
advanced by the learned counsel for the
respondents in the first innings of
litigation in earlier writ petition filed by
the petitioner. In case such argument
could not find favour, it was open to the
UPSRTC
to
challenge
the
decision
rendered by this court dated 15.3.2002
before available higher forum but it is
not open to the authorities to sit over the
judgement
of
this
court
and
take
different view in the matter of its own
contrary to the tenor of the decision and
direction of this Court when the issue
was concluded against the respondents
and case was remanded to the Managing
Director, UPSRTC for limited purpose of
passing fresh order on the quantum of
punishment similar to the punishment
awarded
against
those
27
other
employees. While doing so, it was not
open to him to deal with the quantum of
punishment independently from other
employees on merit. In my opinion, such
approach of authority is contrary law
being in the teeth of the decision of this
court.
Case law discussed:
(2006) 2 UPLBEC 1862, (2007) 2 UPLBEC
1788, 2005(6) S.C.C. 796, (2004) 1 S.C.C. 605
(Pr.12), (2004 ) 1 SCC 605, (2005) 6 SCC 796

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. The main question in controversy
involved in this case is that whether the
issue concluded at higher forum can be
re-agitated in remand proceeding or only
that issue can be considered which has
been remanded by higher forum?

2. The relevant facts having material
bearing with the question in controversy
involved in the case are that after holding
disciplinary inquiry on the charges of
misconduct levelled against 28 employees
including the petitioner in respect of same
incident on similar misconducts various
penalties have been inflicted upon them,
some
persons
were
inflicted
minor
penalties and some were inflicted major
penalties including the stoppage of 3,4 or
5 increments but a very harsh penalty of
dismissal from service has been imposed
upon the petitioner. Feeling aggrieved
against the order of dismissal passed by
disciplinary authority on 22.5.1996 the
petitioner has unsuccessfully preferred