Gujarat High Court
Shivsankar Karunasankar Pandya vs State Of Gujarat on 7 June, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/8580/2017 JUDGMENT DATED: 07/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8580 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 8580 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHIVSANKAR KARUNASANKAR PANDYA
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
MR JAYNEEL PARIKH, AGP (5) for the Respondent(s) No. 1
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 07/06/2021
ORAL JUDGMENT
1. Heard learned advocate Mr. Vaibhav Vyas for the petitioner, learned Assistant Government Pleader Mr. Jayneel Parikh for Page 1 of 13 Downloaded on : Sat Jan 15 03:48:14 IST 2022 C/SCA/8580/2017 JUDGMENT DATED: 07/06/2021 the respondent-State and learned advocate Mr. H.S.Munshaw for respondent Nos. 2 and 3 through video conference.
2. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Jainil Parikh and learned advocate Mr. Munshaw waive service of notice of rule for the respective respondents.
3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
(A) Direct the respondent authorities to consider the case of petitioner for appointment on the post of Talati Cum Mantri (Gram Panchayat Secretary), Class-III, pursuant to the advertisement at Annexure-A to this petition, and (B) Declare and hold that the action of the respondent authorities of not considering the case of the petitioner for appointment on the post of Talati Cum Mantri (Gram Panchayat Secretary), Class-III, pursuant to the advertisement at Annexure-A to this petition, is illegal, arbitrary and discriminatory, and (C) Pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to keep vacant one post of Talati Cum Mantri (Gram Panchayat Secretary), Class-III, pursuant to the advertisement at Annexure-A to this petition, and (D) Pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to consider the case of the petitioner for appointment on the post of Talati Cum Mantri (Gram Panchayat Secretary), Class-III, pursuant to the advertisement Page 2 of 13 Downloaded on : Sat Jan 15 03:48:14 IST 2022 C/SCA/8580/2017 JUDGMENT DATED: 07/06/2021 at Annexure-A to this petition, along with other eligible candidates, and (E) Award the cost of this petition, (F) Grant any other relief of pass any other order which the Honourable Court may consider as just and proper in the facts and circumstance of the case and in the interest of justice."
4. The brief facts of the case are that the petitioner is suffering from muscular dystrophy and is claiming rights of reservation for employment in category of persons with physical disabilities.
5. Respondent No.3 issued an advertisement inviting applications for appointment on 175 posts of Talati-cum-Mantri [Gram Panchayat, Secretary]. Out of the said 175 posts advertised by the respondent-authorities, 3% posts are reserved for the physically handicapped category candidates as per the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [for short 'the Act, 1995']. The petitioner being physically disabled person with locomotor disability applied for the post of Talati-cum-Mantri pursuant to the aforesaid advertisement dated 24.11.2016 along with disability certificate issued to the petitioner by the Health and Family Welfare Department, Government of Gujarat.
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6. The petitioner thereafter appeared in the examination conducted by the respondent-authority. In the provisional merit list for appointment of the post of Talati-cum-Mantri, the name of the petitioner was included at Serial No. 275 showing that the petitioner obtained 61 marks. The petitioner thereafter, was informed to remain present for verification of the documents by letter dated 10.03.2017. The petitioner accordingly, appeared for verification of documents. However, though in the final select list of the candidates published on 07.04.2017, cut-off marks prescribed by the respondent- authority for physically disabled persons was kept at 59.100 marks but the name of the petitioner was not reflected in the final select list. It appears that after publication of the final list, the respondent alloted post to the selected candidates but some of the candidates have not been appointed or have not opted for the post.
7. The petitioner therefore, made a detailed representation on 15.04.2017 and approached the respondent authorities to consider his case. However, the petitioner was informed by the respondent authorities that as the petitioner is suffering from muscular dystrophy disease, his case is not considered for appointment on the post in question as physically disabled person. The petitioner has therefore, filed this petition with the aforesaid prayers.
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8. This Court [Coram: Hon'ble Mr. Justice S.G.Shah] passed the following order on 26.04.2017:-
"1. Notice, returnable on 1.5.2017. Learned AGP waives service of notice for respondent No.1 - State. Interim relief in terms of paragraph 8(C) is granted till then.
2. Though there is need to grant interim relief in terms of paragraph 8(C), considering the facts and circumstances emerging from record, prima facie it seems that disability certificate does not seem to be proper inasmuch as it does not disclose the exact disability in any manner whatsoever though it is stated that petitioner is disabled by 'Muscle Disease'. Thereby, percentage of disability is not disclosed. Therefore, let there be a notice to the signatory ot such certificate also, which is produced at Annexure- C, namely, Dr. Anil Maganbhai Solanki, Assistant Professor, Department of Orthopedics, Sir T Medical College, Bhavnagar to explain on oath that how such disability has been assessed and certified. The concerned Doctor is specifically directed to attach the documentary evidence to confirm the disability of the petitioner, the reason for such decision, supported by reference document, including document of medical science.
3. Considering the medical certificate produced at Annexure-C, petitioner is directed to appear before the Civil Surgeon at Civil Hospital, Ahmedabad. The Civil Surgeon of Civil Hospital, Ahmedabad is directed to form a Medical Board comprising of three Doctors of concerned subject to examine the petitioner and to ascertain that whether he has any physical disability/ impairment or not. If petitioner is having any physical disability or impairment, then, such Board shall certify the same with percentage and reasons so also actual loss of locomotive capacity of the petitioner, if any. The Board shall file its report through the office of the Government Pleader, Gujarat High Court before this Court on the returnable date.Page 5 of 13 Downloaded on : Sat Jan 15 03:48:14 IST 2022
C/SCA/8580/2017 JUDGMENT DATED: 07/06/2021
4. For the above purpose, let there be a separate Yadi to the Civil Surgeon, Civil Hospital, Ahmedabad. The petitioner is permitted to take such Yadi and to serve it to the Civil Surgeon, Civil Hospital, Ahmedabad. Direct service is permitted."
9. Thereafter, following order was passed on 06.11.2007 [Coram:
Hon'ble Mr Justice N.V.Anjaria]:
"Learned advocate Mr.Munshaw seeks time to file reply, he however submits that the petitioner is yet to appear before the Civil Surgeon, Civil Hospital, Ahmedabad as per the directions contained in paragraphs 3 and 4 of order dated 26 th April, 2017 by this Court.
Learned advocate Mr.Vaibhav Vyas for the petitioner states that petitioner will approach the competent authority of the Civil Hospital for the purpose of seeking compliance of the directions in the order to get himself examined as regards disability.
In order that both that aforesaid exercise could be completed and the further developments are reported, stand over to 28 th November, 2017."
10. Pursuant to the aforesaid order, the competent authority of the Civil Hospital conducted the medical examination of the petitioner and submitted the report with regard to physical disability of the petitioner before this Court which shows that the petitioner is suffering from muscular dystrophy and he is adjudged by the Medical Board of having 50% disability.
11. Learned advocate Mr. Vaibhav Vyas submitted that in the Act of 1995, muscular dystrophy is not specifically stated Page 6 of 13 Downloaded on : Sat Jan 15 03:48:14 IST 2022 C/SCA/8580/2017 JUDGMENT DATED: 07/06/2021 as disease for physical disability. However, such disease is part of locomotor disability by which, the petitioner has difficulty of movement. Learned advocate Mr. Vyas submitted that in the Rights of Person with Disabilities Act, 2016, section 34(1)(c) refers to locomotor disability which includes muscular dystrophy. It was therefore submitted that in the Act, 1995 which was prevailing at the time when the advertisement was issued, only the locomotor disability is stated whereas in the Act of 2016, it is further explained as the Legislature has thought it fit to have inclusive definition of locomotor disability which includes muscular dystrophy. It was therefore, submitted that as the petitioner is having muscular dystrophy of more than 50%, he is suffering from locomotor disability and therefore, would be governed by the physical disability as prescribed under the Act, 1995.
12. A reference was made to section 33 of the Act, 1995 to point out that sub-clause (iii) of section 33 refers to locomotor disability and it was therefore, submitted that the case of the petitioner is squarely covered by section 33 of the Act, 1995 read with section 34(1)(c) of the Act, 2016. Learned advocate Mr. Vyas therefore, submitted that the respondent authorities are required to consider the case of the petitioner as physically disabled person for the post of Talati-cum-Mantri. It was submitted that as one post is ordered to be kept vacant pursuant to the order passed by this Court on 26.04.2017, the Page 7 of 13 Downloaded on : Sat Jan 15 03:48:14 IST 2022 C/SCA/8580/2017 JUDGMENT DATED: 07/06/2021 respondent may be directed to appoint the petitioner as Talati- cum-Mantri considering his physical disability.
13. On the other hand, learned advocate Mr. Munshaw submitted that the case of the petitioner is not considered as a physically disabled person as on verification of documents and after considering the provisions of the Government resolution dated 11.12.2013, the committee of the respondent no.3 did not include the name of the petitioner in the final select list as the petitioner was not considered as having any physical disability. Learned advocate Mr. Munshaw heavily relied on the Government Resolution dated 11.12.2013 to point out that according to the said resolution of the Panchayat Rural Housing and Rural Development Department, 3% of the total post is required to be filled up by physically challenged candidates belonging to three different categories only viz. (i) low vision (moderate) (ii) hearing handicapped (moderate) and
(iii) difficulty in movement or cerebral palsy. Reference was also made to order dated 26.04.2017 passed by this Court and submitted that as the petitioner is found to have muscular dystrophy, he cannot be considered as physically disabled person as the said category does not fall within clause (iii) of section 33 of the locomotor disability or cerebral palsy which is also prescribed in the Government Resolution dated 11.12.2013.
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14. It was further submitted that in view of the above fact situation, when the petitioner is not having any physical disability as prescribed by the Government Resolution, the respondent No.3 has rightly not considered the petitioner as physically disabled person as the respondent No.3 is bound by the Government Resolution and Government Policy for appointment of the person who are considered as physically disabled person.
15. Learned AGP Mr Parikh submitted that at the relevant time, when the advertisement was issued by the respondent No.3, the Government resolution dated 11.12.2013 and the provisions of the Act, 1995 were in operation which do not include muscular dystrophy as a disease which entitles the petitioner to be considered as physically disabled person and therefore, the respondents have rightly not considered the petitioner under the provisions of the Act, 1995 read with Government Resolution dated 11.12.2013 as eligible person for the post of Talati-cum-Mantri giving the benefit of 3% reservation to the petitioner.
16. Having heard learned advocates for the respective parties having gone through the materials on record it is not in dispute that pursuant to the order passed by this Court on 26.04.2017, the petitioner was examined by the medical expert and report is placed before this Court that the petitioner is Page 9 of 13 Downloaded on : Sat Jan 15 03:48:14 IST 2022 C/SCA/8580/2017 JUDGMENT DATED: 07/06/2021 having muscular dystrophy and was adjudged having 50% physical disability.
17. The only question therefore requires to be considered in this petition is, whether the petitioner would fall within clause
(iii) of section 33 of the Act, 1995 which reads as under:
Reservation of posts.--Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from--
(i) xxx xxx xxx
(ii) xxx xxx xxx
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
18. On perusal of the aforesaid provisions it is clear that every appropriate Government is to appoint in establishment such percentage of vacancy not less than 3% for the persons or class of persons with disability of which 1% each shall be reserved for person suffering from blindness or low vision, hearing impairment and locomotor disability or celebral palsy. According to the petitioner, the petitioner would fall in sub Page 10 of 13 Downloaded on : Sat Jan 15 03:48:14 IST 2022 C/SCA/8580/2017 JUDGMENT DATED: 07/06/2021 clause (iii) of section 33 of locomotor disability and for that purpose heavy reliance is placed by the petitioner on section 34 of the Rights of Person with Disabilities Act, 2016 [For short 'Act,2016] which reads as under:
"34. Reservation.--(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses
(a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:--
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:
Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:
Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be Page 11 of 13 Downloaded on : Sat Jan 15 03:48:14 IST 2022 C/SCA/8580/2017 JUDGMENT DATED: 07/06/2021 specified in such notifications exempt any Government establishment from the provisions of this section."
19. The above provision of sub-section (1) of section 34 provides that the locomotor disability includes the celebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy. Thus, locomotor disability is a wider term which is now specifically includes muscular dystrophy under the Act, 2016. As per sub-clause (0) of section 2, locomotor disability is defined in the Act, 1995 which reads as under:
"(o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy;"
20. Thus, "locomotor disability" means disability of the bones, joints and muscles leading to substantial restriction of the movement of the limbs or any form of celebral palsy. Whereas, in the Act, 2016, locomotor disability is not defined but the same includes as per clause (c) of sub-section (1) of section 34 of Act, 2016 categories of cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy. Thus in the Act, 1995 muscular dystrophy disability is having wide meaning as defined in clause (o) of section 2. It is pertinent to note that though muscular dystrophy disability is not specifically mentioned in Act, 1995, the same is included in locomotor disability under clause (c) of section 34(1) of the Act, 2016.
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21. Therefore, I am of the view that the definition of locomotor disability as given in clause (o) of section 2 of the Act, 1995 cannot be given a restrictive meaning than what is included in section 34(1)(c) of the Act 2016.
22. Thus looking from any point of view, muscular dystrophy is part of locomotor disability and the respondent authorities have committed error by not considering the same as part of locomotor disability of the petitioner.
23. Accordingly, the petitioner is entitled for reservation to get the benefit of of the provisions of section 33 of the Act, 1995 for the post of Talati-cum-Mantri for which he had applied as physically disabled person.
24. In view of the foregoing reasons, the petition succeeds and is accordingly allowed. As this Court vide order dated 26.04.2017 has directed the respondents to keep one post vacant, the respondents are directed to issue the appointment order to the petitioner as Talati-cum-Mantri within a period of four weeks from the date of receipt of copy of this order. Rule is made absolute to the aforesaid extent. No order as to costs.
In view of disposal of the petition, Civil Application also stands disposed of.
(BHARGAV D. KARIA, J) JYOTI V. JANI Page 13 of 13 Downloaded on : Sat Jan 15 03:48:14 IST 2022