STATE OF U P Vs. SUKH LAL SHARMA

JUDGEMENT

(1.) THOUGH this special appeal has been filed with delay of more than seven months, but learned counsel for the respondent has no serious objection. In view of the fact that a fresh order has already been passed by the State Government in compliance of the order passed by the learned Single Judge impugned in the present special appeal, we, therefore, condone the delay. By means of the order under appeal, the learned Single Judge has issued a direction for considering the case of the respondent for appointment against the existing vacancy under the physically handicapped quota in the light of the observations made in the order passed by the learned Single Judge. Learned counsel for the appellants Sri Anuj Kudesia, assailing the order submitted that the judgement of the apex court in the case of Bhudev Sharma vs. District Judge, Bulandshahr and another, (2008) 1 SCC 233, is not applicable in the instant case, as the learned Single Judge did not take into consideration that there was one percent reservation for each of the three categories of the physically handicapped persons, which makes the reservation of 0.29% with respect to the respondent and, therefore, there was no occasion for his appointment. He further says that there were more persons similarly situated than the respondent, which were 48 in number. Sri Rajesh Singh Chauhan, on the other hand, submitted that this plea that there were more persons against the respondent, who were eligible for being appointed, was not taken before the learned Single Judge. We do not find it expedient to express our view on the points raised, in view of the fact that after a fresh decision being taken by the State Government in compliance of the order passed by the learned Single Judge, the claim of the respondent has been rejected on 12.12.08. The said order is already under challenge in Writ Petition No. 1253 (SS) of 2009, filed by the respondent. That being so, the merits of the order already being the subject of consideration in another writ petition, where all these pleas are open to be raised by the parties. This special appeal has lost its efficacy. We would like to observe that the observations made in the present order passed by the learned Single Judge on the merits of either parties, would not be binding upon the learned Single Judge, as a fresh order has been passed by the State Government. With the aforesaid observations, the special appeal is dismissed as infructuous.