DEVENDRA NATH TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) IN above noted writ petitions common question of facts and law are involved, therefore, they are decided together by common judgment. The facts of the Writ Petition No. 3046 of 2007 would also include the facts of other two connected writ petitions and it will be leading case.

(2.) BY these petitions, the petitioners have sought relief of cert/bran for quash ing the notification dated 7. 12. 2006 contained in Annexure-12 of the writ petition and notification dated 27. 8. 2005 contained in Annexure-11 of the writ petition and advertisement No. A-6/e-1/2006 Employment News 7-13 October, 2006 (Annex-ure-6) and order dated 2. 8. 2007 contained in Annexure-13-F to the writ petition, the resolution of Full Court dated 30. 4. 2005 and 20. 8. 2005 by summoning the record. A relief in the nature of mandamus has also been sought for declaring the Rule 4 (m) of U. P. Judicial Service Rules, 2001 as ultra vires the Constitution of India so far as it includes the phrase "in which the process of recruitment is initiated by Appointing Authority" and declaring the Rules 4, 5,6 and 20 of Allahabad High Court Rules, Right to Information Act 2005 as ultra vires the Constitution of India. In another Writ Petition No. 66816 of 2006 the petitioner has sought relief of mandamus directing the respondent to provide the benefit of Section 33 of Act No. 1 of 1996 to the petitioner and further directing the respondent to consider the petitioner under physically handicapped quota by providing reservation for physi cally disabled persons and to comply with the direction given by Full Bench in decision rendered in Sarika v. State of U. P. and others, decided on 24th February, 2005 reported in 2005 (4) ESC 2378 (AII) (FB ).

(3.) IN leading writ petition No. 3046 of 2007 two counter-affidavits have been filed, one on behalf of respondent No. 4 U. P. Public Service Commission and another on behalf of High Court of Judicature at Allahabad through Registrar Gen eral of the High Court. The main counter-affidavit appears to have been filed on behalf of High Court. IN para 3 of the said counter-affidavit it is stated that earlier to it the petitioner Devendra Nath Tiwari had filed a Writ Petition No. 27242 of 2006 in which he had sought a writ of mandamus directing the State Government to identify the post for reservation under the provisions of the U. P. Public Service (Reservation for Physically Disabled, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993. The said writ petition was dismissed by Division Bench of this Court vide judgment and order dated 2. 11. 2006 alongwith a bunch of writ petitions of which leading case was Writ Petition No. 59653 of 2006, Jaiprakash Tiwari and others v. State of U. P. and others. IN para 7 of the counter-affidavit it is stated that merely because the States of Himachal Pradesh, Haryana and other States have identified posts for being given to the physically handicapped per sons, does not imply that the same should be followed in State of Uttar Pradesh. It is further stated that the judgment of Full Bench of this Court in Sarika v. State of U. P. and others, placed before Full Court of Hon'ble High Court and the matter regarding reservation to physically handicapped persons in U. P. Higher Judicial Service and U. P. Judicial Services was duly considered by Hon'ble Full Court in its meeting held on 30. 4. 2005 and the Full Court had resolved that at present there is no scope or desirability of reservation for any physically handicapped persons in the U. P. Higher Judicial Service and U. P. Judicial Services and it was found that physically handicapped persons are not suited for discharge of judicial duties. It was, however, also resolved that if any physically handicapped person, otherwise shows that he is in a position to discharge his judicial duties and abide by his service incidents, then there should be no bar to their appointments either in U. P. Higher Judicial Service or in U. P. Judicial Services. It is also stated that the decision taken by Hon'ble Full Court is based on an objective assessment of the practical difficulties which will necessarily have to be faced by a physically handicapped Judicial Officers during the course of his service. The resolution of Full Court is based on sound consideration and is perfectly legal and valid and is liable to be upheld by this Hon'ble Court. Copy of minutes of Full Court meeting held on 30. 4. 2005 and 20. 8. 2005 are on record as Annexures C. A.-7 and C. A.-8 of the counter-affidavit.