High Court
Case Details
1 Neutral Citation No. - 2023:AHC:172543 Court No. - 37 Case :- WRIT - A No. - 14145 of 2023 Petitioner :- Rajesh Kumar Mishra Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arun Kumar Counsel for Respondent :- C.S.C. Hon'ble Abdul Moin,J. 1. Heard learned counsel for the petitioner, learned Standing counsel appearing on behalf of the respondents no. 1, 2 & 4 and Sri Siddharth Singhal, learned counsel appearing for the Uttar Pradesh Public Service Commission. 2. Instant writ petition has been filed praying for a Mandamus directing the respondents no. 1 & 2 to include dwarfism (DW) as one of the category for persons with disability to be eligible for the post of Revenue Lekhpal under the Government order dated 30.07.2021. A further prayer is for a mandamus commanding the respondents to consider the candidature of the petitioner for the post of Revenue Lekhpal under the category of persons with disabilities being a dwarf in the selection being held under the Advertisement No. 1 Exam-2022. 3. The contention of learned counsel for the petitioner is that an Advertisement No. 01 of 2022 was issued on 07.01.2022, a copy of which is annexure 2 to the writ petition inviting applications for Revenue Lekhpal Examination. In Clause 5 of the said advertisement, the details of the Horizontal Reservation were indicated which, so far as it pertains to the post of Lekhpal and so far as it is relevant to the facts of the instant case, indicated that dwarfism is one of the category for the purpose of Horizontal Reservation. Further, Clause 5.4 of the said advertisement specifically provided that the reservation would be governed by the Government order dated 30.07.2021. The Government order dated
Decision
30.07.2021 has been filed as annexure no. 1 to the writ petition which indicates the reservation for the Physically Handicapped in paragraph 4 to be as per the annexed list. The list, so far as it pertains to the Revenue Department (Page 27 to the writ petition), indicates that dwarfism has been indicated towards reservation for the post of Survey Lekhpal but is not indicated for the post of Lekhpal with which the present controversy is concerned. 4. The petitioner claims that he has qualified the said selection but his apprehensive that as dwarfism has not been indicated for the purpose of Horizontal Reservation in the Government order dated 30.07.2021 consequently, he would not get the benefit of the said Horizontal Reservation and hence the instant petition. 5. Learned counsel for the petitioner contends that when in the Government order dated 30.07.2021 in the annexed list, the dwarfism has been indicated as a disability for the purpose of reservation for the post of Survey Lekhpal and also indicates that it would also pertain to the post of Revenue Lekhpal, consequently, not indicating dwarfism for the purpose of reservation for the post of Lekhpal in the Government order dated 30.07.2021 appears to be an error and thus has prayed that a mandamus be issued to the respondents to consider dwarfism also as one of the category for persons with disability so as to make the petitioner eligible for the post of Revenue Lekhpal. 6. The further argument of learned counsel for the petitioner is that the Application Form 34 of the Right of Person with Disabilities Act, 2016 (hereinafter referred to as “Act, 2016”) defines multiple disability as including a person under Clause (a) to (d) of Sub Section 1 of Section 34 Clause (c) of Sub Section 1 of Section 34 of the Act, 2016 provides Locomotor Disability as one of the Benchmark Disability including dwarfism and thus it is argued that under the provisions of the Act, 2016, 2 of 8 candidates with disability of dwarfism are entitled to be considered under Multiple Disability. 6. On the other hand, Sri Siddharth Singhal, learned counsel appearing for the Commission argues that a perusal of the advertisement that had been issued by the Commission would itself indicate that though in table- 2, dwarfism was indicated for the purpose of Horizontal Reservation against the post of Lekhpal yet the advertisement categorically provided in Clause 5.4 that reservation would be governed by the Government order dated 30.07.2021 in which admittedly dwarfism is not one of the disability specified for reservation for the post of Lekhpal. 7. Placing reliance on the judgment of the Apex Court in the case of Ashok Kumar and Anr Vs. State of Bihar and Ors passed in Civil Appeal No. 9092 of 2012 decided on 21.10.2016, the argument of Sri Singhal is that once the petitioner has participated in the selection process fully knowing that the reservation is governed by the Government order dated 30.07.2021 which in turn does not include dwarfism for the purpose of reservation for the post of Lekhpal, as such, after having participated in the selection, he cannot be allowed to turn around and pray for inclusion of dwarfism for the purpose of reservation for the post of Lekhpal. He thus contended that the writ petition deserves to be dismissed on this ground alone. 8. Heard the learned counsel appearing for the contesting parties and perused the records. 9. From a perusal of records it emerges that the petitioner finding himself eligible for the post of Lekhpal in terms of the advertisement issued by the Commission had applied for the said post. Though, the advertisement itself indicated dwarfism as one of the disability for the purpose of Horizontal Reservation yet Clause 5.4 of the said advertisement specifically indicated that reservation would be governed 3 of 8 by the Government order dated 30.07.2021. Admittedly, the Government order dated 30.07.2021, so far as it pertains to the post of Lekhpal, does not indicate dwarfism as one of the disability for which reservation would be applicable. The petitioner, fully aware about the terms and conditions of the advertisement, participated in the said selection and after declaration of the result has now staked his claim for inclusion of dwarfism for the purpose of grant of Horizontal Reservation. 10. The Apex Court in the case of Ashok Kumar and Anr (supra) has held has under:- “11 The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate. 12 The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla4, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the 4(2002) 6 SCC 127 process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar5, this Court held that : “18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same… (See also Munindra Kumar v. Rajiv Govil6 and Rashmi Mishra v. M.P. Public Service Commission7).” The same view was reiterated in Amlan Jyoti Borroah (supra) where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful. In Manish Kumar Shah v. State of Bihar8, the same principle was reiterated in the following observations : “16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the Petitioner is not entitled to challenge the criteria or process of selection. Surely, if the Petitioner's name had appeared in the 5(2007) 8 SCC 100 6(1991) 3 SCC 368 7(2006) 12 SCC 724 8 (2010) 12 SCC 576 merit list, he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning 4 of 8 the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in MadanLal v. State of J. and K.