Ram Kumar S/O Mani Ram Vs State of U.P. Thru Prin. Secy. Panchayat Raj and Anr.

¶1

1

¶2

Neutral Citation No. - 2025:AHC-LKO:47426

¶3

A.F.R.

¶4

Court No. - 4

¶5

Case :- WRIT - A No. - 6528 of 2009

¶6

Petitioner :- Ram Kumar S/O Mani Ram Respondent :- State Of U.P. Thru Prin. Secy. Panchayat Raj And Anr. Counsel for Petitioner :- Ajay Pratap Singh,Arvind Kumar Tripathi,Dinesh Kumar Soni,G.K.Pandey,Kapil Dev Chaubey,Pradeep Kumar Kovid,R.R.Pandey,Raj Srivastava,Satya Prakash,Vijai Kumar Shukla Counsel for Respondent :- C.S.C.

¶7

Hon'ble Abdul Moin,J.

¶8

Supplementary affidavit filed today in Court by the learned Standing Counsel is taken on record.

¶9

Learned counsel for the petitioner states that he does not intend to file any objection to the aforesaid affidavit and prays that the matter may be heard finally.

¶10

Accordingly, the Court proceeds to hear and decide the matter finally.

¶11

Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

¶12

The facts of the case have already been noted in detail in the order dated 23.07.2025. For the sake of convenience, the relevant extract of the order dated 23.07.2025 is reproduced below:-

¶13

“1. Heard.

¶14

2. The facts of the case have already been noted in detail in the order dated 09.05.2025 which, for the sake of convenience, is reproduced below:-

¶15

"1. At the very outset, learned counsel for the petitioner states that earlier he had moved an application for impleadment of Sri Ramesh Chandra Balmiki, which was allowed and he was impleaded as respondent no.3 in the array of parties. Now he does not want to press on the writ petition against respondent no.3 and prays that respondent no.3 be deleted from the array of parties.

¶16

2

¶17

2. To the aforesaid prayer, learned Standing Counsel has no objection.

¶18

3. Accordingly, let the respondent no.3 be deleted from the array of parties within a week.

¶19

4. Heard.

¶20

5. The matter has been listed before this Court after nomination by Hon'ble Chief Justice.

¶21

6. Under challenge is the order dated 24.04.2009, a copy of which is Annexure-1 to the petition, whereby the representation of the petitioner for appointment as Safai Karmi has been rejected.

¶22

7. The contention of learned counsel for the petitioner is that an advertisement dated 28.06.2008, a copy of which is Annexure-5 to the writ petition, was issued by respondent no.2 inviting applications for various vacancies. The controversy revolves around 499 vacancies for Other Backward Class (OBC).

¶23

8. The petitioner, an OBC, applied in pursuance to the said advertisement and claims to have been allotted Roll No.1330 as appears from the interview letter, a copy of which is Annexure-6 to the petition.

¶24

9. It is contended that the interview took place on 12.09.2008 yet when the respondents declared the result against his roll number one Sri Ramesh Chandra Balmik was indicated to have been selected.

¶25

10. Being aggrieved, the petitioner approached this Court and this Court required the respondents to decide the representation of the petitioner in Writ Petition No.8095 (SS) of 2008. In pursuance thereof, the petitioner claims to have submitted his representation which has been rejected vide the order impugned dated 24.04.2009 and hence the petition.

¶26

11. The argument of learned counsel for the petitioner is that apart from the fact the petitioner is an OBC and is also a physically handicapped as per the handicap certificate issued by the Chief Medical Officer which indicates his permanent disability as 40%, copy of which has been filed as Annexure-4 to the petition, and as per the averments made in paragraph 6 of the supplementary counter affidavit dated 20.05.2015 it emerges that the respondents admit of having only filled in 494 posts of OBC vis-a-vis 499 posts that were advertised and have also indicated that the remaining vacancies against OBC are vacant due to non-availability of the applications for the post in question as the same belonged to deaf/partially deaf (PD/D) as such it is apparent that sufficient number of vacancies were available with the respondents on which the petitioner could have been appointed in his own category.

¶27

3

¶28

12. Learned Standing Counsel has however expressed his inability to address the Court on merits on account of not having the records.

¶29

13. Although in the counter affidavit it clearly emerges that the respondents in fact admit of having filled in only 494 vacancies out of 499 vacancies towards OBC that had been advertised and have indicated that the remaining vacancies i.e. 5 are vacant due to non-availability of deaf/partially deaf persons but it is not clear that as to whether a physically handicapped quota could be further divided into one towards deaf/partially deaf candidates leaving out another physically handicapped person, as in the instant case, i.e. the petitioner who is also 40% physically handicapped.

¶30

14. The other aspect of the matter would be that it is not understood as to how the same roll numbers, in this case roll no.1330, could be allotted against various categories namely SC & OBC as has been done in the instant case which might be the case with respect to the other categories also.

¶31

15. Let learned Standing Counsel seek specific instructions in this regard and also equip himself with his own record.

¶32

16. As the matter pertains to the year 2009, list this case in the next week.

¶33

17. The matter may not be adjourned on the next date of listing."

¶34

3. Thereafter, when the matter was taken up on 04.07.2025 the Court had required learned Standing Counsel to bring on record the Government Order dated 07.05.1999 and also file supplementary affidavit indicating therein as to how compliance of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has been done with respect to reserving of one percent vacancy for the persons suffering from (i) blindness or low vision (ii) hearing impairment, and (iii) locomotor disability or cerebral palsy.

¶35

4. Responding Sri Piyush Kumar, learned Standing Counsel, indicates that in terms of Section 32 of the Act, 1995, Government Order dated 07.05.1999 had been issued, a copy of which is Annexure CA-1 to the counter affidavit dated 16.08.2011, which indicates at serial no.10 with respect to Group D posts of Sweeper, Cleaner and Related workers in the category of PDD.

¶36

5. Referring to the letter dated 24.04.2009, which is part of Annexure CA-1 to the counter affidavit, learned Standing Counsel states that PDD has been indicated so far as it pertains to Safai Karmi as partially deaf and dumb/deaf and dumb and as the petitioner is suffering from 40% locomotor disability consequently as the post of Sweeper, Cleaner and Related Workers has not been identified for the

¶37

4

¶38

locomotor disability persons as such the petitioner is not entitled for benefit of any reservation.

¶39

6. So far as the petitioner not being considered against OBC category, learned Standing Counsel states that as per the averments made in supplementary counter affidavit dated 22.05.2025 the marks obtained by the petitioner are 23.25 and he has thus not qualified in the OBC category.”

¶40

The Court vide order dated 23.07.2025 had also required learned Standing Counsel to file a supplementary affidavit duly bringing on record the Government Order dated 20.09.1997 (wrongly typed as 20.09.1977 in the order dated 23.07.2025) as was indicated in the advertisement.

¶41

In pursuance thereof, the Government order dated 20.09.1997 has been brought on record.

¶42

From perusal of the detailed order 23.07.2025 it emerges that an advertisement had been issued by the respondents dated 28.06.2008 inviting applications for various vacancies. Controversy revolves around 499 vacancies for Other Backward Class (OBC). The petitioner claims that his result was declared yet he has not been appointed although sufficient number of vacancies are available. The representation filed by the petitioner for his appointment has been rejected by the respondents vide order impugned dated 24.04.2009 by indicating that the post of Safai Karmi has not been identified against locomotor disability with which the petitioner is suffering rather the said post has been identified towards PD/D i.e. partially deaf and dumb/deaf and dumb.

¶43

While raising a challenge to the order impugned dated 24.04.2009 learned counsel for the petitioner has raised the following arguments namely (a) that the Government Order dated 07.05.1999 as has been brought on record and as has been indicated in the advertisement cannot and will not supersede the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the ‘Act, 1955’) which Act was prevailing at the time of advertisement, (b) there is no clarification with regard to the marks of the petitioner, (c) sufficient number of vacancies are still available on which the petitioner can be appointed, and (d) once in terms of Section 33 of the Act, 1995, one per cent

¶44

5

¶45

quota is also available to a person with locomotor disability, consequently the respondents, while issuing the Government Order dated 07.05.1999 could not have taken away that quota of one per cent meant for a person with locomotor disability. In this regard, learned counsel for the petitioner has placed reliance on the judgment of this Court in the case of Dileep Kumar Sen and 8 others vs. State of U.P. and 2 others – 2023: AHC-LKO:65595.

¶46

On the other hand, learned Standing Counsel has contended that Section 32 of the Act, 1995, clearly provides for identification of posts which can be reserved for persons with disabilities. Identification has been done with the issuance of the Government Order dated 07.05.1999 per which the post of Sweeper, Cleaner and related workers i.e. Sweeper Dry, Sweeper Wet, Sweeper Sewer and Sweeper Cleaner and Related Workers have only been reserved for PDD/DD i.e. persons with partially deaf and dumb/deaf and dumb disability.

¶47

Placing reliance on the provisions of Section 33 of the Act, 1995, the argument of learned Standing Counsel is that said section itself provides that the reservation is to be done for persons suffering from (a) blindness or low vision, (b)hearing impairment, and (c) locomotor disability or cerebral palsy in the posts identified for such disability and therefore once the identification of the posts has been done by means of Government Order dated 07.05.1999 and the State is fully empowered to do so under the provisions of Section 32 of the Act, 1995 consequently it cannot be said that any error has been occasioned in non-appointment of the petitioner once no post has been reserved for the post of Sweeper for the disability with which the petitioner is affected.

¶48

Heard learned counsels for the parties and perused the records.

¶49

From perusal of record, it emerges that the respondents have not appointed the petitioner against the one per cent reserved quota for the physically handicapped/locomotor disability.

¶50

Sections 32 and 33 of the Act, 1995 read as under:-

¶51

6

¶52

“32. Identification of posts which can be reserved for persons with disabilities. - Appropriate Governments shall -

¶53

(a.) identify posts, in the establishments, which can be reserved for the persons with disability;

¶54

(b.) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.

¶55

33. Reservation of Posts - Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from-

¶56

i. blindness or low vision;

¶57

ii. hearing impairment;

¶58

iii. locomotor disability or cerebral palsy, in the posts identified for each disability:

¶59

Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”

¶60

From perusal of Section 32 of the Act, 1995 it emerges that there is to be an identification of posts which can be reserved for persons with disabilities and that the appropriate Government is to identify the posts in the establishment which can be reserved for persons with disability.

¶61

From perusal of Section 33 of the Act, 1995 it emerges that every appropriate Government is to appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from blindness or low vision, hearing impairment, and locomotor disability or cerebral palsy, in the posts identified for each disability .

¶62

Section 2(a)(ii) of the Act, 1995 provides that the appropriate Government would be the State Government.

¶63

In terms of the power as vested in the State Government in light of Section 32 of the Act, 1995 a Government Order dated 07.05.1999 was issued by which various posts had been identified for the purpose of being

¶64

7

¶65

reserved. So far as the post of the petitioner is concerned, which is a post of Sweeper, for which the petitioner had applied, the reservation was only provided for PDD/DD i.e. partially deaf and dumb/deaf and dumb i.e. no reservation was provided for a person with locomotor disability. Accordingly, once identification of the posts has been done in terms of Section 32 of the Act, 1995 with the issuance of the Government Order dated 07.05.1999 consequently Section 33 of the Act, 1995 would have to be read in accordance with the identification of posts reserved for persons with disability which has been made in terms of Section 32 of the Act, 1995 inasmuch as Section 33 of the Act, 1995 specifically provides that the Government shall appoint in every establishment such percentage of vacancies not less than three per cent on the posts identified for each disability . Consequently once the post in terms of Section 32 of the Act, 1995 was never identified for a person with locomotor disability as clearly emerges from perusal of the Government Order dated 07.05.1999, as such in case the petitioner has not been given the benefit of reservation for locomotor disability, consequently no error can be found in the said action on the part of the respondents as also emerges from perusal of the order dated 24.04.2009 per which representation of the petitioner has been rejected.

¶66

So far as the judgment of this Court in the case of Dileep Kumar Sen (supra) is concerned, the said judgment may not detain the Court inasmuch as here it is not a case of a Government Order being issued contrary to the provisions of the Act, 1995 inasmuch as the Government Order dated 07.05.1999 has clearly been issued in terms of the powers vested with the State Government under Section 32 of the Act, 1995. Thus, the said judgment would have no applicability in the facts of the instant case.

¶67

So far as the argument of learned counsel for the petitioner that no clarification has been given by the respondents pertaining to the marks of the petitioner, no case has been set up by this petitioner in this regard and thus the said ground merits to be rejected and is rejected.

¶68

8

¶69

So far as the ground that vacancies still exist in which the petitioner can be accommodated, suffice to state that keeping in view the law laid down by Hon’ble Supreme Court in the case of State of Haryana vs. Subash Chander Marwaha and others - (1974) 3 SCC 220 , the Government cannot be compelled to fill in all the vacancies which it is having and as such there cannot be any occasion for this Court to issue a mandamus to the respondents for filling in the remaining vacancies.

¶70

At this stage, learned counsel for the respondents has also produced the marks as have been obtained by the petitioner which are found to be 23.25 and as the cut off which has been specified for the OBC category is 23.75 as such it is apparent that the petitioner has failed to obtain even the cut off marks for being selected against the advertised posts.

¶71

Keeping in view the aforesaid discussion no case for interference is made out. Accordingly, the writ petition is dismissed .

¶72

Order Date :- 13.8.2025 A. Katiyar

¶73

Digitally signed by :- AMIT KATIYAR High Court of Judicature at Allahabad, Lucknow Bench

Ram Kumar S/O Mani Ram v. State of U.P. Thru Prin. Secy. Panchayat Raj and Anr.

Case brief

What is this about?

What did the court decide?

Ram Kumar S/O Mani Ram v. State of U.P. Thru Prin. Secy. Panchayat Raj and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Dr. Ranjeev Kumar Sahu vs Union of India Thru. Secy. Deptt. Higher Edu. Ministry Human Resource Development, and 3 Others

Muneeb Ahmad vs Bharat Sanchar Nigam Ltd. Thru. Managing Director Sanchar Bhawan Janpath New Delhi and 3 Others

Himanshu Rajput @ Himanshu vs Sanjeev Kumar Singh, Secy. Joint Entrance Ex. Council, Lko.

Ram Gopal and 3 Others vs State of U.P. Thru. Addl. Chief Secy. Finance U.P. Lko. and 3 Others

Raghvendra Singh Vs State of U.P. Thru. Prin. Secy. Cooperative Lko. and 5 Others

Himanshu Yadav Vs State of U.P. Thru. Addl. Chief Secy. Cooperative Deptt. Lko. and 2 Others