{"id":217348,"date":"2010-07-21T00:00:00","date_gmt":"2010-07-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/devendra-nath-tiwari-vs-state-of-u-p-others-on-21-july-2010"},"modified":"2016-01-07T23:20:37","modified_gmt":"2016-01-07T17:50:37","slug":"devendra-nath-tiwari-vs-state-of-u-p-others-on-21-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/devendra-nath-tiwari-vs-state-of-u-p-others-on-21-july-2010","title":{"rendered":"Devendra Nath Tiwari vs State Of U.P. & Others on 21 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Devendra Nath Tiwari vs State Of U.P. & Others on 21 July, 2010<\/div>\n
                                                             AFR\n\n                               Judgment reserved on 13.05.2010\n                              Judgment delivered on 21.07.2010\n\n         Civil Misc. Writ Petition No.69552 of 2009\n         Devendra Nath Tiwari Vs. State of U.P. & Ors.\n\nHon. Sunil Ambwani, J.\n<\/pre>\n
Hon. K.N. Pandey, J.\n<\/p>\n
     The petitioner is a law graduate and a physically handicapped
\nperson with    disability, certified by the Chief Medical Officer,
\nAllahabad on 4.12.2003 on account of ‘Postpathoparisis of left
\nupper limb with Disability of Fifty (50%) of Affected Part’. By
\nthis writ petition he has prayed for direction to quash the
\nappointment of Smt. Lavlesh Singh and Shri Akhilesh Kumar
\nTiwari, respondent Nos.3 and 4 as Assistant Prosecuting Officers
\nin the quota of physically disabled persons in the selections
\nadvertised by the Public Service Commission, U.P. at Allahabad,
\nin Employment News dated 7th -13th October, 2006 for filling up
\n86 vacancies including 43 vacancies in general category; 24 in
\nOBC; 18 in SC; 1 in ST and 17 backlog reserved vacancies. He
\nhas also prayed for direction to the respondent to consider him for
\nappointment to the post of Assistant Prosecuting Officer        by
\nholding main examination and interview of the petitioner and to
\nappoint him on the post.\n<\/p>\n
    We have heard Shri Arvind Srivastava, learned counsel for the
\npetitioner. Learned Standing Counsel has appeared for the State-
\nrespondent. Shri P.S. Baghel assisted by Shri Gautam Baghel has
\nappeared for the Public Service Commission, U.P. Shri K.R.
\nSirohi along with Ms. Stuti Singh have appeared for Smt. Lavlesh
\nSingh-respondent No.3.\n<\/p>\n
       An advertisement was issued by the Public Service
\nCommission, U.P. at Allahabad (in short the Commission) in the
\nyear 2003, inviting applications for 57 posts of Asstt. Prosecuting
\nOfficers providing for quota by way of horizontal reservation for
\n                                  2<\/span><\/p>\n
physically handicapped; dependents of freedom fighters,           and
\nwomen candidates in accordance with the Government Orders. In
\nthe advertisement published for the next recruitment after three
\nyears in Employment News dated 7th-13th October, 2006, for 86
\nvacancies 43 vacancies were included in general category, and 17
\nbacklog vacancies, for reserved category, the advertisement did
\nnot provide for reservation for physically handicapped persons.
\nThe application form, however, provided for information to be
\nsubmitted by the candidates in Column C (d) to describe the
\nnature of physical disability and the category in which the person
\nmay be included.\n<\/p>\n
         The petitioner filed a writ petition No.23468 of 2007, with a
\nprayer to direct the respondents to provide quota for physically
\nhandicapped persons in the selections in accordance with the U.P.
\nPublic     Service   Commission      (Reservation    for   Physically
\nHandicapped, Dependents of Freedom Fighters and Ex-
\nservicemen) Act, 1993, as amended in 1997.            The petitioner
\nsubmitted that vide Notification dated 31st July, 2007 the post of
\nAsstt. Prosecuting Officer in the Directorate of Prosecution
\n(Home)       has been identified for reservation for physically
\nhandicapped candidates. By an order dated 10.7.2008 the Court
\ndirected that the respondents shall ensure that one post of Asstt.
\nProsecuting Officer is left vacant, in the     open general category
\nand to mention this fact in the select list to be forwarded by the
\nCommission to the State Government. The writ petition was
\ndisposed of on 13.10.2008 with directions that those physically
\nhandicapped candidates, who have appeared in the examination,
\nbut have failed on the basis of such advertisement will be
\nconsidered in the category of physically handicapped candidates
\nand the best amongst them shall be selected. The directions of
\nthe Court are quoted as follows:-\n<\/p>\n
                “So far as non-consideration of the candidature of
\n         the petitioner as physically handicapped candidate is
\n         concerned, at present we are of the view that those
\n                                  3<\/span><\/p>\n
       physically handicapped candidates, who have appeared in
\n       the said examination but failed on the basis of such
\n       advertisement, will be considered in the category of
\n       physically handicapped candidates and the best among
\n       them can be selected.<\/p>\n
              Thus, the writ petition is disposed of.\n<\/p><\/blockquote>\n
              No order is passed as to costs.\n<\/p><\/blockquote>\n
       Dt.13.10.2008                         Sd-Amitava Lala, J.\n       KST [WA-23468-2007]                  Sd-Arun Tandon, J.\"\n\n<\/pre>\n
        It is stated in para 15 of the writ petition that the petitioner
\nfiled the certified copy of the order of the High court dated
\n13.10.2008 in the Commission on 4.11.2008 and made an
\napplication demanding information under the Right to Information
\nAct, 2005, about the cut off marks of the applicant and other
\nphysically handicapped persons, who had appeared in the
\nexamination.     A reminder was sent on 24.11.2008.                The
\nCommission gave a reply to the petitioner on 24.1.2009, informing
\nhim that the Commission has not taken a decision as yet on the
\njudgment of the High Court dated 13.10.2008, and the letter of the
\nState Government dated 6.9.2008.<\/p><\/blockquote>\n
     The petitioner was not declared successful in the preliminary
\nexamination. The Commission informed the petitioner by its letter
\ndated 14.1.2009 that in the meeting held at the Government level
\non 6.9.2008 presided by the Principal Secretary of the department
\nand assisted by the representatives of the Public Service
\nCommission, it was decided that since there is a provision of 3%
\nhorizontal reservation for physically handicapped persons and that
\nsince the advertisement did not mention about the reservation, a
\ncorrigendum be issued by the Commission.          It was also decided
\nthat in the corrigendum       the physically handicapped persons
\nshould be allowed to apply for the reserved posts.\n<\/p>\n
     It is stated in para 27 of the writ petition that 6 persons out of
\nthose, who applied in general category belonging to physically
\nhandicapped category were called for main examination. The cut
\n                                  4<\/span><\/p>\n
off marks of different categories in the preliminary examination
\nwere as follows:-\n<\/p>\n
     1. Genera category                    99<\/span>
\n     2. Scheduled castes                   83<\/span>
\n     3. Women                              86<\/span><\/p>\n
      Six persons, who were given the benefit of physically
\nhandicapped persons, and were called for main examination,
\nsecured marks in the preliminary and main                examination as
\nfollows:-\n<\/p>\n
Sl.No. Name             Roll  Category Marks                   Marks\n                        No.            obtained in             obtained in\n                                       preliminary             main\n                                       examination             examination\n1.       Sachin         16431 General 107                      198<\/span>\n         Kumar Rai\n2.       Km.            18672 Gen.+           86               178<\/span>\n         Sarika               Women\n3.       Rajiv          25289 SC              85               193<\/span>\n         Kumar\n         Bhartiya\n4.       Smt.           27744 OBC+            90               201<\/span>\n         Lavles               Women\n         Singh\n5.       Akhilesh       29277 General         104              211<\/span>\n         Kumar\n         Tiwari\n6.       Raj Kumar      36208 SC              86               182<\/span>\n         Verma\n\n\n<\/pre>\n
               The petitioner was not permitted to appear in the main
\nexamination, and thus he could not compete with the above six
\npersons. Out of the six, two persons namely Akhilesh Kumar
\nTiwari in general category and Smt. Lavlesh Singh in OBC +
\nwomen       category   were    selected   by       providing   horizontal
\nreservation in their respective categories.\n<\/p>\n
            Shri Arvind Srivastava, learned counsel for the petitioner
\nsubmits that out of 86 advertised posts reservation for physically
\nhandicapped persons at 3% would be 2.54 and that by applying
\n                                 5<\/span><\/p>\n
principle of rounding off, three vacancies were to be reserved for
\nfilling handicapped persons.         The Commission selected and
\nrecommended only two persons. He            further submits that the
\nCommission invited 18 persons for each vacancy for final
\nexaminations, whereas in the case of physically handicapped
\npersons only six candidates were invited to appear in the final
\nexamination for the two vacancies worked out by the Commission.
\nThe petitioner secured 96 marks in the preliminary examination
\nand was thus entitled in accordance with the ratio in which other
\ncandidates were invited to appear in the main examination.\n<\/p>\n
          Shri Arvind Srivastava submits that the Commission has
\ncommitted gross illegality in reducing the quota of physically
\nhandicapped persons, from out of 86 vacancies to 2 instead of 3,
\nand thereafter discriminated           the physically handicapped
\ncandidates in calling them in insufficient numbers in the ratio of
\n1:6 for main examination, whereas ratio for general category and
\nother reserved categories was 1:8. Lastly he      submits that the
\nselected persons namely Smt. Lavlesh Singh and Shri Akhilesh
\nKumar Tiwari, respondent Nos.3 and 4 do not belong to the
\ncategory of physically handicapped persons and were allowed to
\nappear in the final examination with much lower marks. In respect
\nof Km. Sarika, Rajiv Kumar Bhartiya, Smt. Lavlesh Singh and
\nShri Raj Kumar Verma, he submits that the physically
\nhandicapped persons stand in a separate quota and have to be
\nselected on their own merit.     They have been wrongly assigned
\nreservation in the main category provided, with vertical
\nreservation in which they applied. The Commission should have
\nselected the physically handicapped candidates in their own merit
\nand thereafter assigned them horizontal reservation in their own
\ncategory. The procedure adopted by the Commission for applying
\nreservation in main examination on the basis of marks secured in
\npreliminary examination was incorrect. The same criteria was not
\nfollowed for vertical reservation.\n<\/p>\n
                                6<\/span><\/p>\n
       Shri Arvind Srivastava has relied upon the judgments of the
\nSupreme Court in Shiv Prasad Vs. Government of India &
\nOrs., (2008) 10 SCC 382; Andhra Pradesh Public Service
\nCommission Vs. Baloji Badhavath & Ors., (2009) 5 SCC 1
\nand Union of India Vs. Ramesh Ram & Ors., (2009) 6 SCC
\n619 in support of his submissions.\n<\/p>\n
    Shri P.S. Baghel appearing for the Public Service Commission
\nsubmits that in the Advertisement No.A-1\/E-1\/2006 for
\nconducting examination of Asstt. Prosecuting Officers, 2006, as
\nper the requisition received from the State Government, at the time
\nof advertisement, no provision was made for reservation for
\nphysically handicapped persons.      The examination was to be
\nconducted in three stages namely (i) preliminary examination (ii)
\nmain examination and (iii) interview.        The petitioner Shri
\nDevendra Nath Tiwari appeared in the preliminary examination,
\nthe result of which was declared. He filed Writ Petition No.23468
\nof 2007 for providing reservation      to physically handicapped
\ncandidates. Since there was no reservation provided for physically
\nhandicapped candidates, the petitioner was treated as general
\ncategory candidates     and was declared unsuccessful in the
\npreliminary examination. The main examination was conducted
\non 28.11.2007 and 29.11.2007. By the time the interim order was
\npassed on 10.7.2008 and the writ petition was finally decided on
\n13.10.2008, the main examinations were held and the Commission
\nwas going to prepare the result of the main examination.
\n    The Commission in compliance with the judgment after taking
\nconsent of the State Government decided to provide reservation to
\nonly those physically handicapped candidates, who had appeared
\nin the main examination. Out of the total 86 vacancies of the
\nAsstt. Prosecuting Officers,       according to 3% horizontal
\nreservation only 2 posts were reserved for physically handicapped
\ncandidates and that as per the policy of the Commission 2 x 3, i.e.
\n6 candidates    qualified for interviews.   In the final list two
\n                               7<\/span><\/p>\n
candidates of physically handicapped category were selected, one
\nof them is general and another belong to OBC + female of U.P.
\nThe final select list was forwarded to the State Government. Shri
\nP.S. Baghel, learned counsel for the petitioner would submit that
\nthe Commission did not cause any discrimination. The judgment
\ndated 13.10.2008 in Writ Petition No.23468 of 2007, was fully
\ncomplied with. The Commission did not provide for reservation
\nfor physically handicapped candidates. It, however, accepted the
\njudgment of the High court dated 13.10.2008 with direction;
\n“those physically handicapped candidates, who have appeared in
\nthe said examination but failed on the          basis    of such
\nadvertisement, will be considered in the category of physically
\nhandicapped candidates and the best among them            can be
\nselected.”\n<\/p>\n
    The Commission in consultation with the State having decided
\nto give reservation to physically handicapped persons further
\ndecided that since out of 86 vacancies only 2 vacancies were to be
\nreserved for providing 3% horizontal reservation to physically
\nhandicapped person,     only 6 candidates could be called for
\ninterview in their respective categories. Shri Baghel submits that
\nprinciple of rounding off is not applicable to reservation for
\nphysically handicapped persons. If the principle of rounding off
\nis applied to the advertised vacancies, the quota of physically
\nhandicapped candidates would exceed beyond 3%. In such case
\nthe reservation at 3.48% will be beyond the statutory limit of 3%
\nprovided under the Act. Shri Baghel submits that the petitioner
\ndid not qualify in the preliminary examination. He scored 96
\nmarks,   much below the marks awarded to the two general
\ncategory candidates namely Shri Sachin Kumar Rai and Shri
\nAkhilesh Kumar Tiwari with 107 and 104 marks respectively. In
\nthe final examination Shri Akhilesh Kumar Tiwari scored 211
\nmarks and Smt. Lavlesh Singh scored 201 marks. Although Smt.
\nLavlesh Singh received the benefit of OBC as well as the women
\n                                8<\/span><\/p>\n
in U.P., she was even otherwise         at Sl.No.2 in the main
\nexamination and     having succeeded in the interviews         was
\nprovided with horizontal reservation in her own category, for
\nappointment. Shri Baghel submits that in the circumstances the
\nCommission did not make any mistake in applying reservation to
\nthe advertised post, and selected best candidates amongst all as
\nper the directions of the High Court. He would submit that chance
\nof succeeding in the final examination and interviews are not the
\ngrounds on which the Court may interfere. The Commission has
\nselected the best amongst physically handicapped persons.\n<\/p>\n
           The U.P. Act of 1993 defines physically handicapped
\nperson under Section 2 (e) after its amendment in 1997, a person
\nwhich suffers from (i) blindness or low vision (ii) hearing
\nimpairment (iii) locomotive disability or cerebral palsy. Section 3
\nprovides for reservation for vacancies in favour of the physically
\nhandicapped etc. Section 3 of the Act is quoted as below:-\n<\/p>\n
                      “3. Reservation of vacancies in favour of
\n         physically handicapped etc.-(1) There shall be
\n         reserved at the stage of Direct Recruitment-\n<\/p><\/blockquote>\n
             (i) in public services and posts two per cent of
\n                  vacancies for dependents of freedom fighters;
\n             (i-a)in public services and posts other than Group
\n                  ‘A’ posts or Group ‘B’ posts, on and from may 21,
\n                  1999 two per cent of vacancies and on and from
\n                  the date on which the Uttar Pradesh Public
\n                  Services      (Reservation      for     Physically
\n                  Handicapped, Dependent of Freedom Fighters
\n                  and Ex-Servicemen) Amendment Act, 1999 is
\n                  published in the Gazette five per cent of vacant,
\n                  for Ex-Servicemen;\n<\/p><\/blockquote>\n
             (ii) in such public services and posts as the State
\n                  Government may, by notification, identify one
\n                  per cent of vacancies each        for the persons
\n                  suffering from-\n<\/p><\/blockquote>\n
                 (a) blindness or low vision;\n<\/p><\/blockquote>\n
                 (b) hearing impairment; and\n<\/p><\/blockquote>\n
                 (c) locomotor disability or cerebral palsy.\n<\/p><\/blockquote>\n<\/blockquote>\n
         (2) The respective quota of the categories specified in
\n         sub-section (1) shall be such as the State Government
\n         may from time to time determine by a notified order.
\n         (3) The persons selected against the vacancies reserved
\n         under sub-section (1) shall be placed in the appropriate
\n                                9<\/span><\/p>\n
         categories to which they belong. For example, if a
\n         selected person belongs to Scheduled Castes category he
\n         will be placed in that quota by making necessary
\n         adjustment; if he belongs to [other Backward classes of
\n         Citizens] category, he will be placed in that quota by
\n         making necessary adjustments. Similarly if he belongs
\n         to open competition category, he will be placed in that
\n         category by making necessary adjustments.
\n         (4) For the purposes of sub-section (1) an year of
\n         recruitment shall be taken as the unit and not the entire
\n         strength of the cadre or service, as the case may be;\n<\/p><\/blockquote>\n
                  Provided that at no point of time the reservation
\n         shall, in the entire strength of cadre, or service, as the
\n         case may be, exceed the quota determined for respective
\n         categories.\n<\/p><\/blockquote>\n
         (5) Where, due to non-availability             of suitable
\n         candidates any of the vacancies reserved under sub-
\n         section (1) remains unfilled it shall be carried over to
\n         the next recruitment.”<\/p><\/blockquote>\n
            It is not denied that the State Government has vide
\nnotification dated 31st July, 2007 identified the posts of Asstt.
\nProsecuting Officer to be reserved for physically handicapped
\npersons in accordance with the Act of 1993. The petitioner, with
\nlocomotive disability assessed at      50% was eligible to be
\nconsidered for appointment in the quota of              physically
\nhandicapped candidates to the advertised posts. The notification
\nissued by the State Government for respective quotas of categories
\nin sub-section (1) of Section 3 has not been placed on record. We,
\ntherefore, proceed on the basis that there is 1% reservation on the
\npost of Asstt. Prosecuting Officer for each of the persons
\nsufferring from (a) blindness or low vision (b) hearing impairment
\nand (c) locomotive disability or cerebral palsy. The petitioner
\nsuffers from locomotive disability and thus he was qualified for
\n1% reservation     for physically handicapped person        in his
\ncategory in the advertised post and in case he was selected, he was
\nto be adjusted in accordance with sub-section (3) of Section 3 in
\nthe appropriate categories to which he belongs.\n<\/p>\n
       The petitioner with locomotive disability, therefore, was
\nentitled to 1% reservation out of 86 advertised vacancies, and
\n                                10<\/span><\/p>\n
which could not exceed, by one post in the advertised vacancies.
\nHe was, thereafter, required to be placed in his respective category
\ni.e. general category for appointment by making necessary
\nadjustments.   In the present case by the time interim order was
\npassed in Writ Petition No.23468 of 2007 on 10.7.2008, directing
\nthat one post of Asstt. Prosecuting Officer to be left vacant within
\nopen\/ general category and by the time final orders disposing of
\nthe writ petitions of 13.10.2008 were passed,              the main
\nexaminations were held. The Commission in order to comply with
\nthe order of the High Court took a decision to call three persons
\nout of those, who had applied and were declared successful in the
\nmain examination to be called for interview. Only two persons out
\nof the 6 successful candidates could be appointed and the best
\namong them in order of merit was selected and adjusted in their
\nrespective category for appointment on horizontal basis.\n<\/p>\n
          Smt. Lavlesh Singh, daughter of Shri Neeraj Kumar is
\nsufferring with 40% disability of the lower limbs on account of
\npolio. Shri Akhilesh Kumar Tiwari is also sufferring from 40%
\nlocomotive disability. Both these persons had higher merit than
\nthe petitioner in the preliminary examination.\n<\/p>\n
        In Shiv Prasad (Supra) the Supreme Court explained the
\nreservation made for women candidate by “interlocking
\nreservation” as propounded in Indra Sawhni’s case, (1992) Supp. 3
\nSCC 217, and in Swati Gupta Case, (1995) 2 SCC 560, it was
\nfound that three posts in combined cadre of Associate Professor\/
\nAsstt. Professor, one unreserved and 2 SC were available under
\nflexible cadre structure 20% horizontal reservation for women
\ncandidates were applied to these posts. The figure came out to
\n0.6%, which was rounded of to 1 post. Since the respondent was
\nfound suitable, no grievance could be made against her
\nappointment as Asstt. Professor.       The Supreme Court further
\nheld that since the cadre of Asstt. Professor and Associate
\nProfessor were combined, either the petitioner or the respondent
\n                                11<\/span><\/p>\n
could be appointed in the general category but in view of the
\nhorizontal reservation for women respondent No.4 could be
\nappointed only after excluding the petitioner. Since the post was
\nof general category, the respondent was accommodated on that
\npost in women reservation quota and her appointment was
\nconsequently valid.       In Andhra Pradesh Public Service
\nCommission (Supra) the Supreme Court held that provisions
\ncontained in Art.15 and 16 are merely enabling provision and
\nhence the manner in which the State as also the Public Service
\nCommission would comply with the constitutional requirement of
\nArt.335 should ordinarily not be allowed to be questioned.     The
\nmandate of reservation provisions and Art.335,          should be
\nbalanced and procedure evolved for laying down       the mode and
\nmanner for consideration of a right such as the right under Art.16
\ncan be interfered with only when it is arbitrary, discriminatory or
\nwholly unfair.    Unless the procedure adopted by Public Service
\nCommission is held to be arbitrary or against the known principles
\nof fair play, the superior courts would not ordinarily interfere
\ntherewith.\n<\/p>\n
        The Supreme Court held that shortlisting of candidates for
\nmain examination based on performance in preliminary
\nexamination is permissible, if decided on the touchstone        on
\nArticle 335. The State is bound to device some procedure to
\nshortlist the candidates considering its limited reservation. The
\ncategory wise reservation is detrimental to the interest of
\nmeritorious candidates belonging to reserved categories and would
\ngive rise to the complexity since reservation to women and
\nhandicapped person is on the horizontal basis. The constitution
\nlays down provision both for protective discrimination as also
\naffirmative action.   The reservation made for the members of
\nscheduled castes, scheduled tribes and other backward classes is
\nsubject to Art.335 of the Constitution of India.    No citizen can
\nclaim reservation as matter of right.\n<\/p>\n
                              12<\/span><\/p>\n
          In Public Service Commission Vs. Mamta Bisht &
\nOrs. decided on 3.6.2010, MANU\/SC\/0410\/2010 the Supreme
\nCourt quoted with approval the method of applying horizontal
\nreservation, explained in Rajesh Kumar Daria Vs. Rajasthan
\nPublic Service Commission & Ors., AIR 2007 SC 3127:
\nMANU\/SC 7813\/2007, as follows:-\n<\/p>\n
              “The second relates to the difference between the
\n     nature of vertical reservation and horizontal reservation.
\n     Social reservations in favour of SC, ST and OBC under Art.
\n     16(4) are ‘vertical reservations.’ Special reservations in
\n     favour of physically handicapped, women etc., under Art.
\n     16(1) or 15(3) are ‘horizontal reservations.’ Where a
\n     vertical reservation is made in favour of a backward class
\n     under Art. 16(4), the candidates belonging to such
\n     backward class, may compete for non-reserved posts and if
\n     they are appointed to the non-reserved posts on their own
\n     merit, their numbers will not be counted against the quota
\n     reserved for the respective backward class. Therefore, if the
\n     number of SC candidates, who by their own merit, get
\n     selected to open competition vacancies, equals or even
\n     exceeds the percentage of posts reserved for SC candidates,
\n     it cannot be said the reservation quota for SCs has been
\n     filled. The entire reservation quota will be intact and
\n     available in addition to those selected under Open
\n     Competition category. (Vide Indira Sawhney (supra); R. K.
\n     Sabharwal v. State of Punjab<\/a> (1995 (2) SCC 745); Union of
\n     India v. Virpal Singh Chauvan<\/a> (1995 (6) SCC 684) and
\n     Ritesh R. Sah v. Dr. Y. L. Yamul<\/a> (1996 (3) SCC 253)]. But
\n     the aforesaid principle applicable to vertical (social)
\n     reservations will not apply to horizontal (special)
\n     reservations. Where a special reservation for women is
\n     provided within the social reservation for Scheduled
\n     Castes, the proper procedure is first to fill up the quota for
\n     Scheduled Castes in order of merit and then find out the
\n     number of candidates among them who belong to the
\n     special reservation group of ‘Scheduled Castes-Women.’ If
\n     the number of women in such list is equal to or more than
\n     the number of special reservation quota, then there is no
\n     need for further selection towards the special reservation
\n     quota. Only if there is any shortfall, the requisite number of
\n     Scheduled Caste women shall have to be taken by deleting
\n     the corresponding number of candidates from the bottom of
\n     the list relating to Scheduled Castes. To this extent,
\n     horizontal (special) reservation differs from vertical
\n     (social) reservation. Thus women selected on merit within
\n     the vertical reservation quota will be counted against the
\n     horizontal reservation for women.”\n<\/p><\/blockquote>\n
                                13<\/span><\/p>\n
          In the present case the Commission made a mistake in
\nfailing to provide statutory reservation for physically handicapped
\npersons, under the U.P. Act of 1993 as amended in 1997, at 3%
\nreservation for physically handicapped persons, and which
\nprovides for 1% reservation for each of the person suffering from
\nblindness or low vision; hearing impairment        and locomotive
\ndisability or cerebral palsy. Both the selected persons namely
\nrespondent Nos.3 and 4 as well as the petitioner fell within 1%
\nreservation on the vacancy to be reserved for locomotive
\ndisability.   The Commission could appoint only 1 in the         86
\nvacancies and thereafter   place it in appropriate category. The
\nmaximum number that could be identified under Section 3 (1) (ii),
\nin the selections was to best amongst persons, who had appeared
\nin the preliminary examination to be called for final examination.\n<\/p><\/blockquote>\n
Since the final examination was already over, the Commission did
\nnot commit any mistake in calling for 6 persons in the same ratio
\nas the persons were called in the order of merit from amongst the
\nmain examination to interviews. In correcting the mistake the
\nCommission did not commit any further error in complying with
\nthe order of High Court, which was not challenged and has
\nbecome final by selecting the best amongst those, who had
\nappeared in the final examination. Smt. Lavlesh Singh had added
\nadvantage of being women candidate falling in OBC category and
\nthus both respondent Nos.3 and 4 were appointed in preference
\nto the petitioner, on the basis of their merit in their respective
\ncategories compared with the petitioner.\n<\/p>\n
       In the given facts and circumstances, we do not find that the
\nCommission committed any error of law in applying the
\nreservation for physically handicapped persons        under the U.P.
\nAct of 1993, as amended in 1997, in the selections.\n<\/p>\n
       The writ petition is dismissed.\n<\/p>\n
Dt.21.07.2010
\nSP\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Devendra Nath Tiwari vs State Of U.P. & Others on 21 July, 2010 AFR Judgment reserved on 13.05.2010 Judgment delivered on 21.07.2010 Civil Misc. Writ Petition No.69552 of 2009 Devendra Nath Tiwari Vs. State of U.P. & Ors. Hon. Sunil Ambwani, J. Hon. K.N. Pandey, J. The petitioner is a law graduate […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-217348","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nDevendra Nath Tiwari vs State Of U.P. & Others on 21 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/devendra-nath-tiwari-vs-state-of-u-p-others-on-21-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Devendra Nath Tiwari vs State Of U.P. & Others on 21 July, 2010 - 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