V.M.Sahai, J. - (1.) The questions that arise for consideration in this petition are whether horizontal reservations were to be provided by the Director, U.P. Higher Education, while notifying the vacancies for lecturer in Geography; whether the U.P. Higher Education Service Commission while making the selection on the advertisement providing for selection to be made in accordance with the reservation policy of the State was bound to make selection for horizontal vacancies as a matter of law irrespective of whether it was mentioned in the advertisement or not; whether reservation for physically handicapped is three percent or one percent for each category of physically handicapped; whether vacancy for physically handicapped had to be worked out on the caste/category of the candidate; whether where there is only one vacancy for physically handicapped, it had to be offered to the candidates of the first category and if there was no candidate of that category it was to be carried over or it had to be offered to the candidate of second and third category; whether the State and the Commission have committed an error of law in construing G.O. No.4/1-2001-Ka-2-2001 dated 22.10.2001?
(2.) The brief facts are that an advertisement no.32 was published on 23.4.2002 by U.P. Higher Education Service Commission, Allahabad (in brief the Commission) inviting applications for the post of lecturers in Geography and various other subjects. For Geography 41 vacancies were notified. The petitioner a first divisioner of Intermediate, B.A., M.A. with 59.4%, a Doctorate degree in Geography and having passed National Eligibility Test in Geography in 1997 applied for the post of lecturer in Geography as a general category candidate and claimed reservation as physically handicapped. A medical certificate dated 25.11.1988, issued by Chief Medical Officer, Kushi Nagar was also attached along with the application, which showed that the petitioner suffered 70% of congenital deformity in upper portion of both hands. The selection was to be made only on the basis of interview. After the preliminary screening the petitioner by letter dated 28.1.2003 was called for interview. He appeared in selection held on 19.2.2003. The result was declared on 5.3.2003. He was not selected. The petitioner has challenged the selection made by the respondents on the ground that the Commission has not provided horizontal reservation to physically handicapped candidates and if such reservation would have been provided, the petitioner would have been selected.
(3.) In the counter affidavit filed on behalf of the Commission it is stated that the total post for lecturer in Geography were 41 out of which 21 was for General, 12 for Other Backward Class (in brief the OBC), 8 for SC and none for ST. No post was reserved for physically handicapped. It is stated that the petitioner being a candidate for general category and 1% of twenty one vacancy for general category comes to less than 0.5, therefore, the petitioner could not be offered appointment as physically disabled candidate. It is stated that the petitioner was considered as a general category candidate but he could not be selected on merits. It is further stated that posts in concerned subject of different colleges are clubbed subject wise and sent by the Director, Higher Education U.P. and certain posts in the selection are reserved in accordance with The Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act, 1994 [U.P. Act No.4 of 1994]. It is averred that the Commission only makes selection for the posts notified and sent by the Director, and the notification issued carried reservation only for OBC and SC, but no reservation was provided for physically handicapped, therefore, the petitioner could not have been selected in the category of physically handicapped. Paragraph 5 (d) and 9 of the counter affidavit are extracted below:- " 5.(d) That the posts in the concerned subjects of different colleges are clubbed subject wise and sent by the Director Higher Education U.P. and in that certain number of posts are kept reserved as per U.P. reservation Act 4 of 1994. It is further stated that the answering respondent only make selection for those posts, which are notified and sent by the Director, Higher Education, U.P. to the U.P. Higher Education Service Commission, Allahabad. Such notification carries reservation (subject-wise) for only OBC and SC/ST., the notification/requisition sent by the Director Higher Education does not provide for reservation for physically handicapped (subject-wise). Therefore, in whichever subject in which larger number of posts are available and in which at least one post (0.5 of the post and above) may be made available for reservation to the physically handicapped persons, the answering respondent Commission provides such reservation and selects eligible physically handicapped candidates against such posts. 9. That in reply to the contents of para 7 of the writ petition, it is necessary to submit here that under the reservation quota, no post in Geography subject has come for physically handicapped persons, therefore, in the advertisement no.32, no application for handicapped candidates were invited for Geography subject as per the handicapped reservation rules by the answering respondent. It is further stated that the Director Higher Education sent the posts after determining the quota to the answering respondent and the answering respondent has also considered the reservation rules at the time of selection. The posts of handicapped reserved category was not determined by the Director of Higher Education as well as Commission at the time of finalisation of reservation quota under the rules.";