- (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 ). The reliefs sought in aforesaid writ petitions rest mainly on the ground that petitioners of above noted writ petitions are physically handicapped persons and they have applied in pursuance advertisement No. A-6/e-1/2006, for being con sidered for selection on the post of Civil Judge (Junior Division) under the quota meant for physically handicapped persons being otherwise fully eligible and quali fied for the selection and appointment on the said post. It is stated that in the said advertisement although the age of relaxation for 5 years has been provided to physically handicapped persons, but no post has been reserved for them. The petitioners have appeared in the written examination in pursuance of said adver tisement. It is further stated that in States of Madhya Pradesh, Himachal Pradesh, Haryana, Rajasthan and Delhi the posts of Judicial service have been identified for the purpose of reservation to the physically handicapped persons but State of Uttar Pradesh has, however, not identified the posts to be offered to the physi cally handicapped persons. In this connection a Full Bench of this Court vide order dated 24. 2. 2005 had directed the State Government to identify Group A and Group B posts in all the services for reservation for physically disabled persons. It is stated that petitioner Devendra Nath Tiwari had sent a letter dated 3. 5. 2006 to the State Government by registered post for identifying the post of Group A and Group B services which in turn sent to the Hon'ble High Court, Allahabad for consultation, in pursuant thereof instead of providing reservation to the physically handicapped persons by resolution dated 30. 4. 2005 the Hon'ble Full Court of Allahabad High Court has declined to give reservation to physically handicapped persons. The resolution dated 30. 4. 2005 was never brought to the notice of public at large nor was in the knowledge of the petitioner. The petitioner Devendra Nath Tiwari filed a contempt petition in which short counter-affidavit was given on 11. 12. 2006. In the said counter-affidavit a letter dated 27. 8. 2005 was annexed alongwith notification dated 7. 12. 2006 which transpires that some decision has been taken by Full Court on 30. 4. 2005 and 20. 8. 2005. The true copy of letter dated 27. 8. 2005 of Joint Registrar Investigation, High Court Allahabad and notifi cation dated 7. 12. 2006 of the Uttar Pradesh Government are on record as Annexures-11 and 12 of the writ petition. It is further stated that under the provisions of Uttar Pradesh Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, a quota of 5% has been fixed for aforesaid categories of persons. Thereafter by subsequent amendment in the said Act through U. P. Act No. 6 of 1997 certain changes were brought under existing provisions of reservation. Thereafter the said Act was again amended in the year 1999 by U. P. Act No. 29 of 1999 whereby further amendments were made under the existing provisions of the said Act and legal position which stands after such amendments is that at the stage of direct recruitment, there shall be reservation in such public services and posts as the State Government may by notification identify, one per cent of vacancies each for the persons suffering from (a) blindness or low vision; (b) hearing impairment; and (c) locomotor disabilities or cerebral palsy. It is stated that State Government did not discharge its aforesaid statutory obligation and did not identify the services and posts falling under Group-A and B services under the State by issuing notification under Section 3 (1) (ii) of the Act 1993. Thus, the posts of Civil Judge Junior Division falling in Group-B posts of the State has not yet been identified by the State Government. It is further stated that under the provisions of Section 33 of Persons with Disabilities (Equal Opportunities, Pro tection of Rights and Full Participation) Act, 1995 (Act No. 1 of 1996), the quota which shall be fixed for physically handicapped persons shall not be less than 3% of vacancies. It is further stated that inaction of respondent in not identifying the vacancies and proceeding with the advertisement for filling the vacancies without identifying the post for physically handicapped persons amounts to arbi trary act of respondents, which is violative of Articles 14 and 16 and also violative of provisions of Section 33 of Act No. 1 of 1996 inasmuch as Article 38 of the Constitution of India. It is also stated that the action of the respondents is also contrary to the direction given by Full Bench of this Court in Sarika's case re ferred herein before and resolution of Full Court is also contrary thereto.
(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. In paras 8 and 11 of the counter-affidavit it is stated that the State of Uttar Pradesh has not identified posts for physically handicapped persons in Group A and Group B services. In para 12 (x) it has been further stated that post of Civil Judge (Junior Division) comes in category of Group B posts vide Rule 2 of U. P. Judicial Service Rules, 2001. In view of G. O. dated 31. 1. 2006 and 10. 4. 2006 the Ex-servicemen and physically handicapped persons are not entitled to get ben efit of reservation in recruitment to the posts of Civil Judge (Junior Division) 2006. The copies of aforesaid GOs. are on record as Annexures C. A.-5 and C. A.-6 of the counter-affidavit. In para 14 of the counter-affidavit it is also stated that the. resolution of Full Court was communicated to the State Government vide a letter dated 27. 8. 2005 and vide GO. dated 7. 12. 2006 the State Government has taken the decision in response to the resolution dated 30. 4. 2005 and 20. 8. 2005 as contained in Annexures C. A.-10 of the counter-affidavit.;