- (1.) THE petitioner is working as a Class -IV employee on contract basis. The petitioner had approached this Court by filing writ petition no. 21993 of 2011 which was allowed by order dated 20.2.2014. The order is extracted below: "The petitioner claims to have been working as Class IV employee on contract basis in Jalkal Department in Nagar Palika Parishad, Ghazipur since year 2004. It is stated that the petitioner is a handicapped person and his disability is 70%. The case of the petitioner is that there are 108 sanctioned posts of Class IV employees in Nagar Palika Parishad, Ghazipur and out of which 55 posts are non -technical post, which come within the purview of reservation for handicapped persons as per provisions of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Act'). It is stated that applying 3% reservation to 55 non -technical posts, 2 posts would be available for being filled up by handicapped persons. The case of the petitioner is that one Mazahar Hasan -respondent no.6 is already working on one of these two posts and one post under handicapped quota is still vacant. When the respondents did not consider the claim of the petitioner for appointment against the said post, he approached the Commissioner under Section 62 of the Act. In the said proceedings, the respondents have filed their reply in which it is admitted that out of 55 non -technical posts 2 posts are reserved for being filled up by handicapped persons. However, it was stated before the Commissioner that 2 handicapped persons are already working and, therefore, the claim of the petitioner was denied by order dated 15.09.2010 impugned in the present writ petition. The Commissioner, believing the version of the respondents as correct, rejected the claim made by the petitioner. Aggrieved by the said order, the petitioner has approached this Court for quashing the order dated 15.9.2010 passed by the Commissioner and also for a writ of mandamus directing the respondents to regularise his services against one substantive post, which is available for being filled up under the handicapped quota. A counter affidavit has been filed on behalf of respondents no.4 and 5 and paragraph 5 thereof is as under: - "5.That in reply to the contents of paragraphs no.8, 9 and 10 of the writ petition are partly accepted and it is submitted before this Hon'ble Court that out of two posts reserved for Handicapped category, one post filled by Handicapped person." It is further stated in paragraph 8 of the counter affidavit that one Sri Surendra Ram is also a handicapped person, who was given appointment under dying -in -harness category. It is further urged that the petitioner Lallan Yadav is a contractual employee and, therefore, he cannot be extended the benefit of quota meant for the handicapped persons. Denying the stand taken in the counter affidavit, counsel for the petitioner submits that there are two posts, which are to be filled up under handicapped quota and only one of these post has admittedly been filled up by appointing on Mazahar Hasan and the other post is still available. It is further contended that Surendra Ram has not been appointed under reserved quota meant for handicapped person, though incidentally he may be a handicapped person. It is further submitted that the plea raised before this Court that the petitioner being a contractual employee, is not entitled to the benefit of quota for handicapped persons, was not taken before the Commissioner. I have considered the submissions of learned counsel for the parties and perused the record. After going through the order of Commissioner dated 15.9.2010, I find that there is no application of mind regarding the nature of appointment of Surendra Ram. The Commissioner has rejected the claim of the petitioner by observing that two handicapped persons are already working with the respondents without adverting to the fact that only one vacancy has been filled up under the handicapped quota and the other person Surendra Ram was not appointed against the said quota, though he may incidentally be a handicapped person. The other plea of the respondents that the petitioner being a contractual employee having not been raised before the Commissioner, was also not considered. In these circumstances, I am of the opinion that the matter requires re -consideration by the Commissioner, wherein it shall be open to the petitioner and the respondents to raise all possible pleas and bring on record all relevant material. It is also desirable that in case any person is likely to be affected by the decision to be taken by the Commissioner, he shall also be afforded opportunity of hearing. In view of the discussion made above, the order dated 15.9.2010 passed by the Commissioner is quashed. The writ petition is allowed in part with a direction to the respondent no.2 to pass fresh order after affording opportunity of hearing to the parties within a period of six months from the date of production of certified copy of the order of this Court before it."
(2.) PURSUANT to the aforementioned order, the Commissioner by the impugned order dated 6.8.2014 has rejected the claim of the petitioner for regular appointment, pursuant to the judgment and order dated 26.5.2014 passed in Writ Petition No. 40236 of 2012 (Asifuddin and another vs. State of U.P. and others), however, at the same time, Commissioner has observed that the petitioner's salary after August, 2013 shall also not be released.
(3.) LEARNED counsel for the petitioner is not aggrieved by the order dated 6.8.2014, rejecting the case of the petitioner as per the decision rendered in Asifuddin , however, submits that by the observation made in the impugned order that the petitioner's salary beyond August, 2013 shall not be released, is erroneous as it is not based on any material, as such, the petitioner is entitled to salary for the period he worked. Sri K.K. Singh, learned counsel appearing for the respondent nos. 4 and 5 submits that the salary of the petitioner cannot be released in view of the order dated 6.8.2014 passed by the respondent no. 2, Commissioner Disabled Person, Lucknow.;