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Gujarat High Court

Chetankumar Dashrathlal Rawal vs State Of Gujarat on 28 February, 2018

Author: N. V. Anjaria

Bench: N.V.Anjaria

      C/SCA/5610/2017                                          CAV ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            SPECIAL CIVIL APPLICATION NO. 5610 of 2017

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CHETANKUMAR DASHRATHLAL RAWAL Versus STATE OF GUJARAT ========================================================== Appearance:

MR RASESH RINDANI, AGP for the RESPONDENT(s) No. 1 DS AFF.NOT FILED (N) for the RESPONDENT(s) No. 2,3 MR HS MUNSHAW for the RESPONDENT(s) No. 2 MR RV DESHMUKH for the RESPONDENT(s) No. 3 NOTICE SERVED BY DS for the RESPONDENT(s) No. 2,3 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 28/02/2018 CAV ORDER Heard learned advocate Mr.T.R. Mishra for the petitioner, learned Assistant Government Pleader Mr.Rasesh Rindani for respondent No.1 - State, learned advocate Mr.H.S. Munshaw for respondent No.2 - District Panchayat Service Selection Committee and learned advocate Mr.R.V. Deshkumh for respondent No.3 - Gujarat Panchayat Seva Pasandgi Board.

2. Petitioner is aggrieved because his name did not figure in the select list for the post of Multi Purpose Health Worker (Male). What the petitioner prays by filing this petition, is to declare that the said action of exclusion of his name is contrary to the provisions of Persons with Disabilities (Equal Page 1 of 6 C/SCA/5610/2017 CAV ORDER Opportunity, Protection of Rights and Full Participation) Act, 1995. A consequential prayer is made to include the name of the petitioner in the category of low vision candidate.

3. The petitioner suffers from low vision. Pursuant to advertisement dated 24th November, 2016, the petitioner applied for the post. It is the case that earlier petitions were filed and this Court had directed by order dated 10th February, 2017 passed in Special Civil Application No.1098 of 2017 to permit the petitioner to participate in the recruitment process. When the merit-list was declared on 06th March, 2017, however, the name of the petitioner did not appear, which has led the petitioner to file the present petition.

3.1 It appears that the petitioner also preferred Appeal before the Commissioner of Handicap. He also made representation dated 15th February, 2017. It is the grievance that petitioner's name did not figure in the merit list. It is contended that in the list of selected candidates, all the persons who are having the disability of one leg are included which is not permissible.

3.2 The petitioner has rested his case seeking his claim, on Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995 (hereinafter referred to as 'The Persons with Disabilities Act'). It is further the case of the petitioner that the Page 2 of 6 C/SCA/5610/2017 CAV ORDER Ministry of Social Justice and Empowerment of the Central Government has included low vision in the category of disability, and therefore the State Government has no power to remove the Multi Purpose Health Workers or Vaccinators from the purview of the disability for the purpose of reservation. It is submitted that the government has to strictly follow the category declared by the Central Government.

4. Respondent No.2 by filing affidavit-in- reply, submitted that the State Government has laid down policy and in that regard Resolution dated 11th December, 2013 is relied on. It is contended thereby that the persons with low vision or poor vision or blindness are not entitled for the benefit of reservation in respect of post in question.

5. Adverting straightway to the provisions of the Act, Section 32 deals with the identification of the post which can be reserved for persons with disabilities. It says that appropriate government may identify such posts. It further provides that at periodical intervals not acceding three years, review shall be undertaken of the list of the posts. Section 33 is about reservation of post, being relevant the same is reproduced hereinbelow.

"Section 33. 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) blindness or low vision;

(ii) hearing impairment;

C/SCA/5610/2017 CAV ORDER

(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."

5.1 Thus it is provided that the government shall appoint not less than 3% on the vacancies the persons with disabilities of which 1% shall be reserved for the persons suffering from (a) blindness or low vision, (b) hearing impairment and (c) locomotor disability or cerebral palsy. The Proviso bear significance to dealt with the controversy, which say that in the post identified for each disability, the appropriate government may having regard to the type of work carried on, issue Notification and subject to such conditions specified in such Notification, exempt any establishment under the provisions of the Act. Furthermore, the Government of India has issued Office Memorandum dated 29th December, 2005 declaring the policy with regard to reservation for persons with disabilities wherein the relaxation in standard to fill up the post in respect of one disability category is permitted if the candidates are not available in that category, but in this policy Clause No.22 also it is clarified that the same shall be subject to the fitness of this candidate for the appointment to the post in question.

5.2 Thus the Proviso to Section 33 of the Act above makes it clear that the government has powers Page 4 of 6 C/SCA/5610/2017 CAV ORDER to exempt the application of reservation in particular category out of the three mentioned in the Section, having regard to the type of work attached to the post. The establishment could be exempted by issuing Notification and providing conditions of exemption.

5.3 Resolution dated 11th December, 2013 of the State Government stands on the aforesaid lines, laying down the policy, the Panchayat and Rural Housing Department of the State Government has provided by virtue of the said Resolution that 3% reservation under the Act could be available to only

(a) impaired reach (b) weakness of grip and (c) Ataxic candidates in so far as cadre of Multi Purpose Health Worker is concerned. This is applied in respect of the Multi Purpose Health Worker's post having regard to the nature of job of Multi Purpose Health Workers. A job chart is produced along with the reply which show unmistakably that the Multi Purpose Health Workers have to perform many fold functions relating to health services particularly in rural areas. Looking to the type of job and the nature of work to be performed by the Multi Purpose Health Worker reservation benefit is not given to those who are low vision candidates.

5.4 On perusal of the advertisement for the post pursuant to which the petitioner applied, Clause 1.8 of the advertisement clearly mentioned in accordance with the policy of Resolution dated 11th December, 2013 that the reservation for physically challenged Page 5 of 6 C/SCA/5610/2017 CAV ORDER is available at 3% to the candidates having physical disability of impaired reach, weakness of grip and Ataxic persons.

6. When the persons belonging to the category of low vision are excluded from the purview of reservation for the post of Multi Purpose Health Worker keeping in view the kind and nature of work the Multi Purpose Health Workers would be performing, such decision is as permissible within the scope of Proviso to Section 33 of the Persons with Disabilities Act and the policy framed on the footing of such rationale by the government. Therefore, when the decision conforms the law, sympathy may not have the overriding place. It is difficult to perceive any enforceable right for the petitioner to be sought under the writ jurisdiction. The prayers could hardly be granted.

7. Petition is meritless. It stands dismissed. Interim order stands vacated. Notice is discharged. No costs.

(N. V. ANJARIA, J) Anup Page 6 of 6