SARIKA Vs. STATE OF U P

JUDGEMENT

(1.) In Vinod Kumar Rai v. Public Service Commission, U.P., Allahabad, 20O2 (2) ESC 143 (All), a Division Bench of this Court held that the Full Court of the Allahabad High Court in its resolutions dated 17.3.1993 and 7.3.1998 while approving the draft Rules for making U.P. Judicial Service Rules, 2001, had given consent for reservation in favour of physically disabled persons in recruitment to the judicial service, and thus there is 3% reservation in favour of physically disabled persons in accordance with U.P. Public Service (Reservation for Physically Disabled, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (U.P. Act No. 4 of 1993). The Division Bench further held that this reservation for physically disabled persons must be read harmoniously with Rule 20 of the U.P. Judicial Service Rules, 2001, which provides that no person should be appointed as member of the service unless he be in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties as a member of the service. The benefit of the reservation could, however, be given to only those persons, who are free from any physical and mental defect which may interfere with efficient performance of their duties if appointed to the judicial service, and this must be certified by the Medical Board set up for this purpose. The Division Bench directed that the total vacancies for the 3% reservation should be advertised together and those who would have been eligible for the post on the relevant time, should be treated as eligible and they can now apply for the same and in. future also 3% reservation for physically handicapped persons should be provided.

(2.) In Sarika v. State of U.P, and Ors., (Civil Misc. Writ Petition No. 55266 of 2003), a Division Bench hearing the matter of recruitment to judicial service of the year 2003, did not agree with the conclusion reached in Vinod Kumar Rai's case, and referred the following questions for consideration by a Larger Bench : (1) Whether Section 3 (1) (ii) of Act, 1993 as amended by the U.P, Act No. XXIX of 1999 entitles the physically handicapped candidate to claim reservation for physically handicapped persons in the posts of Civil Judge (Junior Division) in the absence of the requisite identification of the post in question, extending to it the benefits of such reservation? (2) Whether the State Government has or it. was permissible for it to have identified the post of Civil Judge (Junior Division) by issuing a notification as contemplated in Section 3 (1) (ii) of 1993 Act as one of the post for which reservation was to be provided for persons suffering from disabilities (Physically handicapped persons) in view of the resolutions of the Administrative Committee dated 8.12.1979 and 31.1.1981 and the decision of the Court dated 20.1.1982, which had been accepted by the State Government? (3) Whether the Full Court vide its resolutions dated 17.7.1993 and 7.3.1998 can be deemed to have given its concurrence to the State Government for providing reservation for physically handicapped persons in the posts of Civil Judge (Junior Division)? (4) Whether the Division Bench judgment of this Court in the case of Vinod Kumar Rai. v. Public Service Commission, U.P. Allahabad and Ors., 2002 (2) ESC 143, does not lay down the correct law?

(3.) We have heard Sri Ash ok Khare, learned senior Advocate, assisted by Sri Pankaj Kumar Tyagi and Ms. Archana Tyagi for petitioners and Sri Sudhir Agarwal, Additional Advocate General for the State. Sri Amit Sthelekar appears for the Registrar General, High Court, Allahabad. All the parties have given their consent that the writ petition may also be heard alongwith the reference.