Madhya Pradesh High CourtBhupendra Pratap Singh Kushwah vs State Of M.P. on 30 October, 2014W.A.No.34/2013

        ( Bhupendra Pratap Singh Kushwah Vs. State of M.P. )

       22.09.2014

               Shri Ajay Bhargava, Advocate for the petitioner.
               Shri R.P. Rathi,Govt. Advocate for the Respondentsno.1 and 2/State.Shri Deepak Chandana, Advocate for the respondent
       no.3.(Sheel Nagu)                                    (S.K. Palo)
           Judge                                           Judge
sh/-W.A.No.34/2013( Bhupendra Pratap Singh Kushwah Vs. State of M.P. )

30.10.2014

        Shri Ajay Bhargava, Advocate for the petitioner.
        Shri R.P. Rathi,Govt. Advocate for the Respondents
no.1 and 2/State.Shri Deepak Chandana, Advocate for the respondent
no.3.I.A. No. 337/13, an application has been filed seeking
condonation of delay of 280 days in preferring this writ
appeal, which is considered and allowed for reasons
mentioned therein.This writ appeal filed under Section 2(1) of the
Madhya Pradesh Uccha Nyayalaya (Khand Nyaypeeth ko
Appeal) Adhiniyam 2005 assails the final order passed on
21.02.2012 in W.P. No. 3072/2009(S) by the learned Single
Judge dismissing the petition in question.Learned counsel for the rival parties are heard.
        Learned counsel for the petitioner/appellant submits
that the advertisement in question for appointment to the
post of Patwari issued in the year 2008 did not categorize
any of the vacancies to be reserved for handicapped
persons, and therefore the appellant despite suffering fromW.A.No.34/2013physical disability to the extent of 40% could not mention in
his application that he belongs to the handicapped
category. It is further submitted that accordingly the
candidature   of     the   appellant   was     adjudged   as   an
unreserved candidate, thereby relegating the appellant to a
lower merit rank foreclosing his right to be appointed. It is
submitted that when the result was declared, certain
candidates    were     shown    to     be    considered   in   the
handicapped category. It is thus submitted that if the
appellant knew that the reservation for handicapped
persons was available in the selection in question, then
appellant would have applied as handicapped candidate. It
is thus lastly contended that by not mentioning any
reservation for handicapped category, the respondent
employer has not only denied rightful consideration of the
appellant for public employment available to him underArticle 16of Constitution of India, but has also violated the
object of the beneficial legislation contained in Persons withDisabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act,1995.The scrutiny of the impugned order passed by the
learned Single Judge discloses that the petition failed on
account of the appellant having left, the space forW.A.No.34/2013handicapped in the OMR sheet/application form, as blank
leading to the appellant being considered as an unreserved
category candidate.After hearing the learned counsel for rival parties and
considering the material placed on record,     this Court is of
the considered view that even if the contention of the
appellant is treated to be true, that he was denied the
rightful claim of being considered for public employment on
account of the State having failed to mention any
reservation for handicapped category persons in the
advertisements, the undeniable is that the disability
certificate (vide P-5 in W.P.) of suffering from 40% mild
disability was issued on 26.06.2009 which is subsequent in
point of time to the process of recruitment in question which
took place in 2008.Even before this Court in the present writ appeal, the
appellant is unable to demonstrate that the disability as
reflective from the above said certificate P-5 existed, even
when the appellant applied for recruitment in question.In view of the above, this Court is afraid that no relief
can be granted to the appellant for having failed to establish
existence of disability of 40% at the time of applying for
recruitment to the post of Patwari in 2008.W.A.No.34/2013Thus, we concur with the view taken by the learned
       Single Judge of dismissal of the petition, but for a different
       reason as stated above.Consequently this writ appeal is dismissed.
             No order as to cost.(Sheel Nagu)                                   (S.K. Palo)
           Judge                                          Judge
sh/-