Bombay High Court
Dharmendra Ravipratap Singh vs Municipal Corporation For Greater ... on 7 September, 2021
Author: Madhav J. Jamdar
Bench: Ujjal Bhuyan, Madhav J. Jamdar
1/36 WPL.12994.2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 12994 OF 2021
Dharmendra Ravipratap Singh ... Petitioner
V/s.
Municipal Corporation for Greater Mumbai & Ors. ... Respondents
...........
Ms. Manjiri Parasnis for the Petitioner.
Ms. Rupali S. Adhate for the Respondents-MCGM.
Ms. Kshitija Kandarkar, Jt. Labour Officer (Labour Department).
Mr. Dilip R. Gosavi, Administrative Officer (Market Department).
..........
CORAM : UJJAL BHUYAN AND
MADHAV J. JAMDAR, JJ.
RESERVED ON : 18th AUGUST, 2021
PRONOUNCED ON : 7th SEPTEMBER, 2021
JUDGMENT:- (PER MADHAV J. JAMDAR, J.)
1. We have heard Ms. Manjiri Parasnis, learned counsel for the Petitioner and Ms. Rupali Adhate, learned counsel for the Respondents.
2. Petitioner by present Writ Petition filed under Article 226 of the Constitution of India is challenging legality and validity of order dated 18th March, 2021 passed by Respondent No. 3-Assistant Commissioner (Market Department), Municipal Corporation for Greater Mumbai and communication dated 18 th March, 2021 of Respondent No.4-Administrative Officer (Market Department), Municipal Corporation for Greater Mumbai.
3. Petitioner was appointed in the post of Labour by Respondent Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 2/36 WPL.12994.2021.doc No.1-Municipal Corporation for Greater Mumbai ( hereinafter referred to as "M.C.G.M.") on 29th September, 2017. By impugned order/communication dated 18th March, 2021 M.C.G.M. terminated services of Petitioner.
4. Before considering the rival submissions it will be useful to narrate the factual position though it is to be noted that broadly there is no dispute about the factual position.
(i) Petitioner suffers 100% disability due to hearing impairment since birth. The relevant portion of disability certificate dated 10th February, 2016 of Petitioner is set out hereinbelow for ready reference:-
Disability Affected Diagnosis Disability (in part of %) Body Hearing Both Ears RIGHT EAR-PROFOUND 100% Impairment SENSORINEURAL HEARING LOSS LEFT EAR-SEVERE SENSORINEURAL HEARING LOSS
(ii) Petitioner appeared for Secondary School Certificate (S.S.C.) Examination conducted in March-2015 and passed the same with 81.20% marks.
(iii) Petitioner appeared for Higher Secondary Certificate (H.S.C.) Examination conducted in February-2017 and obtained 40.92% marks. In said examination one of the subjects was Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 3/36 WPL.12994.2021.doc Marathi for 100 marks and Petitioner obtained 43 marks out of 100 marks in said subject.
(iv) In the meanwhile on 17th October, 2016, Respondent No.1 issued advertisement titled as "Special Recruitment Campaign for disabled candidates-Walk-In-Selection"(hereinafter referred to as "said advertisement"). The said advertisement was only concerning appointment of specially abled candidates and was for total 570 posts, out of which 540 posts for appointment of Labour/Ward Boy/Porter etc. Out of said 540 posts 228 were for persons affected by blindness and low vision, 168 posts for persons affected by loco-motor disability or cerebral palsy and 144 for persons suffering from deafness and hard of hearing.
(v) Following are terms and conditions of said advertisement on which either of the parties have relied upon :-
(a) passing of 10th standard (S.S.C.) or equivalent examination by obtaining minimum 40% marks with Marathi subject of 100 marks.
(b) candidate should be able to read, write and speak in Marathi language.
(c) Clause No. 5 provides that if it is noticed at any point of time that any candidate is not fulfilling the prescribed eligibility and terms and conditions then his candidature can be cancelled at any point and that if such candidate has been appointed then also such candidate can be removed at any time and no communication in that behalf would be entertained.
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(d) Clause No.15 provides that if it is found that a candidate has submitted false information/certificate/documents or suppressed any information then his candidature can be cancelled at any point of time and if such candidate has been appointed then without giving any prior notice to him his appointment can be cancelled.
(vi) Following terms and conditions of the said advertisement are also relevant:-
(a) The selection list will be prepared on the basis of marks obtained by the candidates in the 10th Standard examination.
(b) Candidates suffering from minimum 40% disability are entitled to apply.
(c) Candidate should have necessary knowledge of Marathi, Hindi languages as per the requirement of the post.
(Condition No.20)
(d) Candidate should be a resident of Maharashtra. If the candidate is not having the domicile certificate and further the birth certificate then it is necessary for the said candidate to submit his school leaving certificate. But it is necessary that in the said school leaving certificate the place of birth of the candidate should be mentioned as State of Maharashtra. (Condition No.24) Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 5/36 WPL.12994.2021.doc
(vii) Petitioner submitted application on 10th November, 2016 pursuant to said advertisement for the post of Labour. He inter alia submitted following information:-
Sr. Name of the Total Marks Percentage Year of Total No. Board Marks Obtained Passing Marks in Marathi
1. 10th Standard 500 406 81.20% March-
(S.S.C.) 2015 It is significant to note that the last column regarding marks obtained in Marathi language is kept blank. As far as the type of disability is concerned, i.e. column No. 11, it has been stated that Petitioner is deaf and hard of hearing to the extent of 100%.
The contention of the Respondents is that Petitioner without fulfilling the eligibility criteria applied for the said post and he misrepresented that he passed in Marathi subject.
(viii) Petitioner was appointed by M.C.G.M. as Labour vide appointment order dated 29th September, 2017 in the pay scale of Rs.5200-20200+GP Rs. 1800.
(ix) Petitioner as per the said appointment letter joined service in the establishment of Respondent No.1 on the post of Labour on 9th October, 2017.
(x) Petitioner received letter dated 15 th April, 2019 of Administrative Officer (Marketing Department) of M.C.G.M. informing him that one Mangesh Krushna Ghadi had sought copy of his S.S.C. marksheet under the Right to Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 6/36 WPL.12994.2021.doc Information Act, 2005 and asking his consent for furnishing copy of the same to said Mangesh Ghadi.
(xi) On 30th April, 2019, Petitioner gave consent for furnishing photocopy of his S.C.C. marksheet to said Mangesh Krushna Ghadi.
(xii) On 18th March, 2021, Petitioner was terminated from the services of MCGM in said post of Labour by order passed by Respondent No. 3- Assistant Commissioner (Market Department), M. C. G.M.and said order was communicated to him by letter dated 18th March, 2021 of Respondent No.4- Administrative Officer (Market Department), M.C.G.M.
(xiii) On 26th March, 2021, Petitioner submitted representation regarding his termination to Respondent No. 2-Additional Commissioner (City) of M. C. G.M. The said representation was rejected on 7th May, 2021.
(xiv) On 18th May, 2021, Petitioner submitted another representation to Respondent No. 2-Additional Commissioner (City) of M.C.GM.
(xv) Not getting response, Petitioner filed the present petition on 12th June, 2021.
5. Ms. Manjiri Parasnis, learned counsel appearing for the Petitioner submitted that the impugned order is totally illegal. The same is passed without giving any opportunity of hearing to the Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 7/36 WPL.12994.2021.doc Petitioner. She submitted that the impugned order is violative of the principles of nature justice. According to her, Petitioner has not made any misrepresentation. Petitioner passed H.S.C. examination with Marathi subject of 100 marks in examination conducted in February-2017. As per the terms and conditions of the said advertisement the candidate has to obtain minimum 40% marks out of 100 marks in Marathi in 10th (S.S.C.) or equivalent examination. She submitted that 12th standard examination (H.S.C.) is higher than 10th standard examination (S.S.C.) and therefore, the Petitioner fulfills the condition for appointment. She submitted that in any case said condition will not be applicable to the Petitioner as he is 100% deaf and hard of hearing.
6. In the course of hearing we put a query to learned counsel appearing for the parties whether acquiring of eligibility criteria post advertisement and selection but prior to appointment can save such appointment. In this regard Ms. Manjiri Parasnis fairly pointed out following judgments on said aspect:-
1. Bhupinderpal Singh Vs. State of Punjab (2000) 5 Supreme Court Cases 262.
2. Rekha Chaturvedi Vs. University of Rajasthan 1993 AIR SCW 1488.
3. U.P. Public Service Commission, Allahabad Vs. Alpana. (1994) 2 Supreme Court Cases 723.
4. Rakesh Bakshi & Anr. Vs. State of Jammu & Kashmir & Ors.
Civil Appeal No. 235-236-2019. (2019) 3 Supreme Court Cases 511.
5. S. K. Kushwaha & Kurukshetra University & Anr. Vs. D. K. Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 8/36 WPL.12994.2021.doc Joshi & Ors. Appeal (Civil) No. 6048 of 2000. (2002) 4 Supreme Court Cases 172.
6. Ashok Kumar Sharma & Ors. Vs. Chander Shekar & Ors.
(1997) 4 Supreme Court Cases 18.
7. Ms. Rupali Adhate, learned counsel appearing for the Respondents submitted that Petitioner was not fulfilling the eligibility criteria and therefore, he should not have applied pursuant to the said advertisement. She submitted that Petitioner had not opted for Marathi as special subject of 100 marks in S.S.C. examination and without noticing said aspect Petitioner was appointed. Said aspect was brought to the notice of the authorities by said Mangesh Ghadi who had obtained the information under the Right to Information Act and thereafter, it was realized that Petitioner had suppressed said fact from the Respondents-MCGM. Therefore, his services were rightly terminated on 18 th March, 2021. She relied on above mentioned condition No. 5 and condition No. 15 of the said advertisement to support her contention that no notice was necessary before terminating Petitioner's service. She submitted that Petitioner was appointed through inadvertent error although he was not eligible; therefore he was rightly terminated. To support her contention, Ms. Adhate, learned counsel appearing for the Respondents has relied on following judgments:-
1. District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr. (1990) 3 Supreme Court Cases 655
2. Preetesh Raman Singh Vs. Delhi High Court through Registrar General 2014 0 Supreme (Del) 901 Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 9/36 WPL.12994.2021.doc
8. Submissions made by learned counsel for the parties have received the due consideration of the Court.
9. In the present case following points arise for determination by this Court:-
(i) Whether the impugned order violates the principles of natural justice?
(ii) Whether Petitioner is not eligible as per the terms and conditions of the said advertisement?
10. It is admitted position that the impugned order dated 18 th March, 2021 terminating the services of the Petitioner was passed without issuing any show cause notice to the Petitioner and without giving any opportunity to the Petitioner.
11. Ms. Adhate, learned counsel for the MCGM has relied on abovereferred condition Nos. 5 and 15 of the said advertisement to support her contention that principles of natural justice are not required to be followed while terminating the service of the Petitioner. As per the condition No. 5 if any candidate is not fulfilling the prescribed eligibility criteria, then his candidature can be cancelled at any point of time and if such candidate is appointed in service, then he can be removed from service at any time. As per condition No. 15, if it is found that if candidate has submitted false information/certificate/documents or suppressed any information then, his candidature can be cancelled at any point of time and if such candidate has been appointed then, without giving any prior notice to him his appointment can be cancelled.
12. However, it is to be noted that Respondents are statutory Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 10/36 WPL.12994.2021.doc authorities constituted under the provisions of Mumbai Municipal Corporation Act, 1888. It is settled position that State authorities are under an obligation to act in just, fair and reasonable manner. A person who has been appointed in the service of MCGM cannot be terminated without giving any opportunity. It is also settled legal position that doctrine of natural justice consists principally of two rules, (i) nemo debet esse judex propria causa i.e. no one shall be a judge in his own cause and (ii) audi alteram partem i.e. no decision shall be given against a party without affording him a reasonable hearing. In the present case there is violation of the second rule.
13. Supreme Court in Canara Bank Vs. Shri Debasis Das reported in AIR 2003 Supreme Court 2041 inter alia observed that notice is the first limb of the principles of audi alteram partem. Notice should apprise the party the case he has to meet, and adequate time be given to the affected party to submit his reply. The discussion in paragraph Nos. 15 and 16 of said Canara Bank judgment is significant and relevant portion of the same is reproduced hereinbelow:-
"15. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 11/36 WPL.12994.2021.doc vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play......"
(Emphasis Supplied)
16. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice."
In paragraph 19 of said Canara Bank judgment it has been observed as follows:-
"19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case and the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." (Emphasis Supplied) 13.1. Thus, on the touchstone of above principles if impugned order is examined then, it is clear that the same is totally illegal and bad-in-law. Petitioner who is in service of a statutory body namely Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 12/36 WPL.12994.2021.doc M.C.G.M., cannot be terminated from service without giving him any notice and without giving him adequate opportunity of hearing.
14. In recent judgment of Supreme Court reported in 2020 SCC Online SC 847 as also in AIR 2020 Supreme Court 5215 State of U.P. Vs. Sudhir Kumar Singh and Ors., after analyzing various judgments on the concept of natural justice, it has been observed in paragraph 39 as follows:-
"39. An analysis of the aforesaid judgments thus reveals: (1)Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
(2)Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest. (3)No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
(4)In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. (5)The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 13/36 WPL.12994.2021.doc should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-
observance of natural justice." (Emphasis Supplied)
15. In the present case, although factual position is largely admitted there is dispute about two issues. The dispute is only to the extent that as per the contention of the Respondents, Petitioner without fulfilling the eligibility criteria applied for the said post and he misrepresented that he had passed in Marathi subject in S.S.C. examination. However, the factual position on record clearly shows that the Petitioner had not misrepresented and authorities have wrongly assumed that Petitioner misrepresented M.C.G.M. Petitioner had kept the column relating to marks in Marathi blank; therefore there was no false disclosure or suppression of facts leading to misrepresentation. The authorities have also failed to take into consideration the aspect whether eligibility conditions as set out in said advertisement are applicable to Petitioner's case. By impugned order drastic action of termination of service of Petitioner was taken. Thus, serious prejudice is caused to the Petitioner as Respondents authorities failed to issue show case notice to him before termination of service, leading to loss of job and livelihood.
16. It is absolutely essential that a person who has been appointed in the employment of a public body like M.C.G.M. cannot be terminated without affording adequate opportunity at least in the facts and circumstances of the present case. Terminating services of an employee by public authority like M.C.G.M. without affording any opportunity will be violative of Articles 14 and 21 of the Constitution of India and also contrary to the principles of natural Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 14/36 WPL.12994.2021.doc justice. The factual position on record clearly show that grave prejudice is caused to Petitioner. Therefore, there is substance in the contention of Ms. Parasnis, learned counsel appearing for the Petitioner that the impugned order of termination of service is illegal as same is contrary to the principles of natural justice.
17. As regards second point, whether Petitioner fulfills eligibility criteria, it is significant to note that he is suffering from hearing impairment in both ears and the said disability is 100%. It is also mentioned in the disability certificate of the Petitioner issued by Government of Maharashtra that the said condition is permanent, non-progressive but not likely to improve.
18. The said advertisement was issued as a special recruitment campaign for specially abled persons. It was a special recruitment drive under the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "1995 Act" ). The Rights of Persons with Disabilities Act, 2016(hereinafter referred to as " 2016 Act" ) came into force on 27th December, 2016. By Section 102 of the said 2016 Act, the 1995 Act was repealed. However, sub-Section (2) of Section 102 of 2016 Act provides that notwithstanding the repeal of the said 1995 Act anything done or any action taken under the said 1995 Act shall be deemed to have been done or taken under the corresponding provisions of the 2016 Act. Thus provisions of both these enactments will be crucial for deciding the question involved in the present case. We may also mention that the said recruitment process was dehors any recruitment rules as it was meant to recruit Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 15/36 WPL.12994.2021.doc only persons with disabilities in terms of the 1995 Act, which was the dominant purpose of the special recruitment campaign. Before considering the eligibility criteria set out in the said advertisement and applicability of the same to Petitioner, it is necessary to set out hereinbelow the important aspects of "1995 Act" and "2016 Act"
19. Hereinafter we will consider relevant provisions of "1995 Act."
(a) Preamble of the said 1995 Act is as follows:-
"An Act to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region.
WHEREAS the Meeting to Launch the Asian and Pacific Decade of Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asia and Pacific held at Beijing on 1st to 5th December,1992, adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region;
AND WHEREAS India is a signatory to the said Proclamation;
AND WHEREAS it is considered necessary to implement the Proclamation aforesaid." (Emphasis Supplied)
(b) The statement of object and reasons of said 1995 Act is set out hereinbelow:-
"Statement of Objects and Reasons.-The meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992, adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and the Pacific Region. India is a signatory to the said Proclamation and it is necessary to enact a suitable legislation to provide for the following:-
Sonali
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(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis, non-disabled persons;
iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down strategies for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision for the integration of persons with disabilities into the social mainstream.
(Emphasis Supplied)
(c) Section 2(i) of 1995 Act defines "disability", Section 2(b) defines "blindness"; Section 2(l) defines "hearing impairment"
and Section 2(o) defines "locomotor disability". The said provisions are set out hereinbelow for ready reference:-
"2(i) "disability" means-
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) loco motor disability;
(vi) mental retardation;
(vii) mental illness;"
"S.2(b) "Blindness" refers to a condition where a person suffers from any of the following conditions, namely:-
Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 17/36 WPL.12994.2021.doc
(i) Total absence of sight; or
(ii)Visual acuity not exceeding 6160 or 201200 (snellen) in the better eye with correcting lenses; or
(iii)Limitation of the field of vision subtending an angle of 20 degree or worse;"
"S.2.(l) "hearing impairment" means loss of sixty decibels or more in the better year (sic) in the conversational range of' frequencies;"
"S.2.(o) "locomotor disability" means disability of the bones, joint muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy;"
(d) Section 32 of 1995 Act is regarding identification of posts which can be reserved for persons with disabilities and Section 33 is regarding reservation of posts. Section 38 concerns schemes for ensuring employment of persons with disabilities. Sections 32, 33 and 38 are set out hereinbelow for ready reference:-
"32. Identification of posts which can be reserved for persons with disabilities- Appropriate Governments shall-
(a) identify posts, in the establishments, which can be reserved for the persons with disability;
(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology."
"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;
(iii) loco motor disability or cerebral palsy, in the posts identified for each disability:
Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 18/36 WPL.12994.2021.doc 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."
"38. Schemes for ensuring employment of persons with disabilities.-
(1) The appropriate Governments and local authorities shall by notification formulate schemes for ensuring employment of persons with disabilities, and such schemes may provide for-
(a) the training and welfare of persons with disabilities;
(b) the relaxation of upper age limit;
(c) regulating the employment;
(d) health and safety measures and creation of a non-
handicapping environment in places where persons with disabilities are employed;
(e) The manner in which and the person by whom the cost of operating the schemes is to be defrayed; and
(f) constituting the authority responsible for the administration of the scheme."
20. Now we will note relevant provisions of the "2016 Act".
(a) The preamble of 2016 Act is set out hereinbelow:-
"An Act to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto.
WHEREAS the United Nations General Assembly adopted its Convention on the Rights of Persons with Disabilities on the 13th day of December, 2006;
AND WHEREAS the aforesaid Convention lays down the following principles for empowerment of persons with disabilities,-
(a) respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
(b) non-discrimination;
(c) full and effective participation and inclusion in society, Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 19/36 WPL.12994.2021.doc
(d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) equality of opportunity;
(f) accessibility;
(g) equality between men and women;
(h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities;
AND WHEREAS India is a signatory to the said Convention; AND WHEREAS India ratified the said Convention on the 1st day of October, 2007;
AND WHEREAS it is considered necessary to implement the Convention aforesaid." (Emphasis Supplied)
(b) The statement of objects and reasons of said 2016 Act are set out hereinbelow:-
"Statement of Objects and Reasons.-The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. The Act defines Persons with Disabilities as those having not less than forty per cent. disability and identified seven categories of disabilities, namely, blindness, low vision, hearing impairment, locomotor disability, mental retardation, mental illness and leprosy-cured.
2. Over a period of time, the conceptual understanding of the rights of persons with disabilities has become more clear and there has been world-wide change in approach to handle the issues concerning persons with disabilities. The United Nations adopted its Convention on the Rights of Persons with Disabilities laying down the principles to be followed by the State Parties for empowerment of persons with disabilities. India signed the said Convention and subsequently ratified the same on the 1st day of October, 2007. The Convention came into effect on the 3rd day of May, 2008. Being a signatory to the Convention, India has an international obligation to comply with the provisions of the said Convention which required an entirely new legislation.
3. In 2010, an Expert Committee constituted under the Chairmanship of Dr. Sudha Kaul, Vice-Chairperson, Indian Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 20/36 WPL.12994.2021.doc Institute of Cerebral Palsy, Kolkata submitted its report in 2011, suggesting a Draft Bill relating to the Rights of Persons with Disabilities. The draft Bill was extensively debated upon at various levels involving State Governments and Union Territories and various stakeholders.
4. The salient features of the Rights of Persons with Disabilities Bill, 2014, inter alia, are:-
(i) Nineteen specified disabilities have been defined;
(ii) the persons with disabilities enjoy various rights such as right to equality, life with dignity, respect for his or her integrity, etc, equally with others;
(iii) duties and responsibilities of the appropriate Government have been enumerated;
(iv) all educational institutions funded by appropriate Government shall provide inclusive education to the children with disabilities;
(v) a National Fund is proposed to provide financial support to persons with disabilities;
(vi) stakeholders' participation in the policy making through Central and State Advisory Boards;
(vii) increase in reservation in posts from existing three per cent. to five per cent. in the vacancies for persons or class of persons with benchmark disabilities in every establishment and reservation of seats for students with benchmark disabilities in higher educational institutions;
(viii) setting up of National Commission and State Commission to act as Grievance Redressal Mechanism, monitor implementation of the proposed legislation replacing the Chief Commissioner and State Commissioners for persons with disabilities, respectively;
(ix) guidelines to be issued by the Central Government for issuance of certificates of specified disabilities;
(x) penalties for offences committed against persons with disabilities; and
(xi) Court of Session to be designated as Special Court by the State Government in every district to try offences."
(Emphasis Supplied) (c ) Section 2(c) of 2016 Act defines "barrier", 2(f) defines "communication", 2(h) defines "discrimination", 2(i) defines "establishment", 2(k) defines "Government establishment", 2(r) defines "persons with bench mark disabilities", Section Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 21/36 WPL.12994.2021.doc 2(s) defines "person with disability" and Section 2(zc) defines "specified disability". The relevant provisions are reproduced hereinbelow for ready reference:-
(c) "barrier"means any factor including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors which hampers the full and effective participation of persons with disabilities in society;
(f)"communication"includes means and formats of communication, languages, display of text, Braille, tactile communication, signs, large print, accessible multimedia,written, audio, video, visual displays, sign language, plain-language, human-reader, augmentative and alternative modes and accessible information and communication technology;
(h) "discrimination"in relation to disability, means any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation;
(i) "establishment" includes a Government establishment and private establishment;
(k)"Government establishment" means a corporation established by or under a Central Act or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 2 of the Companies Act, 2013 (18 of 2013) and includes a Department of the Government;
(r)"person with benchmark disability" means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;
(s)"person with disability"means a person with long term physical, mental, intellectual or sensory impairment which, in Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 22/36 WPL.12994.2021.doc interaction with barriers, hinders his full and effective participation in society equally with others;
(zc)"specified disability" means the disabilities as specified in the Schedule;
(d) The relevant portion of said schedule referred to in Section 2(zc) is reproduced hereinbelow for ready reference:-
B. Visual impairment--
(a) "blindness"means a condition where a person has any of the following conditions, after best correction--
(i) total absence of sight; or
(ii) visual acuity less than 3/60 or less than 10/200 (Snellen) in the better eye with best possible correction; or
(iii) limitation of the field of vision subtending an angle of less than 10 degree.
(b) "low-vision"means a condition where a person has any of the following conditions, namely:--
(i) visual acuity not exceeding 6/18 or less than 20/60 upto 3/60 or upto 10/200 (Snellen) in the better eye with best possible corrections; or
(ii) limitation of the field of vision subtending an angle of less than 40 degree up to 10 degree.
C. Hearing impairment--
(a) "deaf" means persons having 70 DB hearing loss in speech frequencies in both ears;
(b) "hard of hearing"means person having 60 DB to 70 DB hearing loss in speech frequencies in both ears;
(e) Section 3 of 2016 Act is regarding equality and non-
discrimination and Section 20 provides for non-discrimination in employment. Section 21 concerns equal opportunity policy. Said Sections are set out hereinbelow for ready reference:-
"3. "Equality and non-discrimination".--
(1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others.
Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 23/36 WPL.12994.2021.doc (2) The appropriate Government shall take steps to utilise the capacity of persons with dis abilities by providing appropriate environment.
(3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.
(4) No person shall be deprived of his or her personal liberty only on the ground of disability.
(5) The appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities."
"20.Non-discrimination in employment.--
(1) No Government establishment shall discriminate against any person with disability in any matter relating to employment: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section.
(2) Every Government establishment shall provide reason able accommodation and appropriate barrier free and conducive environment to employees with disability.
"21. Equal opportunity policy.--
(1) Every establishment shall notify equal opportunity policy detailing measures proposed to be taken by it in pursuance of the provisions of this Chapter in the manner as may be prescribed by the Central Government.
(2) Every establishment shall register a copy of the said policy with the Chief Commissioner or the State Commissioner, as the case may be."
(f) Chapter VI of 2016 Act containing Section 31 to 37 contains special provisions for persons with bench mark disabilities. Section 33 is regarding identification of posts for reservation and Section 34 provides for reservation. The relevant portion of Sections 33 and 34 is reproduced hereinbelow for ready reference:-
Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 24/36 WPL.12994.2021.doc "33. Identification of posts for reservation.--The appropriate Government shall--
(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;
(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and
(iii) undertake periodic review of the identified posts at an interval not exceeding three years.
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:
21. Thus the following are the important aspects of "1995 Act"
and "2016 Act" as culled out from the abovereferred relevant provisions of both the enactments. The said important aspects are as follows:-
(i) The main objects behind said two enactments are:-
(a) To ensure full and effective participation of differently abled persons and their inclusion in society.
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(b) To ensure equality in treating differently abled persons.
(c) To create barrier free environment for differently abled person.
(d) To remove any discrimination against differently abled persons in sharing of development benefits.
(e) To ensure integration of differently abled person into the social mainstream.
(f) To ensure equality of opportunity.
(g) To ensure accessibility.
(ii) It is the statutory duty of State authorities to take various
steps to further the objectives of said enactments.
(iii) It is the duty of the State authorities to identify posts in the establishments which can be reserved for specially abled persons.
(iv) Once posts are identified by the State authorities for appointing differently abled persons, the State authorities should ensure that criteria prescribed for recruitment to said posts shall not themselves become a barrier thereby hampering full and effective participation of specially abled person to apply for said post. Such action would amount to discrimination of specially abled person.
(v) It is the statutory responsibility of State authorities to take steps to utilize the capacity of persons with special ability by providing appropriate environment.
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(vi) It is the statutory responsibility of State authorities to provide
appropriate barrier-free and conducive environment to employees with special ability.
22. It is very clear that both "1995 Act" and "2016 Act" are enacted for protection of rights of specially abled persons and to create barrier-free environment for specially abled persons. One of the object of said enactments is to remove discrimination against specially abled persons in the sharing of development benefits vis-a- vis, non-disabled persons. Another object of both these Acts is to make special provisions for the integration of specially abled persons into the social mainstream. These Acts are enacted for empowerment of specially abled persons. They are enacted for protection of inherent dignity and individual autonomy of specially abled persons. They are enacted to ensure their free and effective participation and inclusion in society with the object of acceptance of specially abled persons as part of human diversity and humanity. They are enacted for the purpose of ensuring that due opportunity is provided to specially abled persons and for respecting their acceptance.
23. In (2010) 7 S.C.C. 626 in the case of Government of India through Secretary and Anr. Vs. Ravi Prakash Gupta and Another in paragraph 22 following observations are made with respect to "1995 Act".
"22.We have examined the matter with great care having regard to the nature of the issues involved in relation to the intention of the legislature to provide for integration of persons with disabilities into the social main stream and to lay down a strategy for comprehensive development and Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 27/36 WPL.12994.2021.doc programmes and services and equalization of opportunities for persons with disabilities and for their education, training, employment and rehabilitation amongst other responsibilities. We have considered the matter from the said angle to ensure that the object of the Disabilities Act, 1995, which is to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific Region, is fulfilled." (Emphasis Supplied)
24. In (2014) 14 S.C.C. 383 in the case of Justice Sunanda Bhandare Foundation Vs. Union of India and Another , Supreme Court made observations regarding approach to be adopted by the Government authorities while implementing the provisions of "1995 Act". Paragraph 9 of said judgment is as follows:-
"9. Be that as it may, the beneficial provisions of the 1995 Act cannot be allowed to remain only on paper for years and thereby defeating the very purpose of such law and legislative policy. The Union, States, Union Territories and all those upon whom obligation has been cast under the 1995 Act have to effectively implement it. As a matter of fact, the role of the governments in the matter such as this has to be proactive. In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic. A little concern for this class who are differently abled can do wonders in their life and help them stand on their own and not remain on mercy of others. A welfare State, that India is, must accord its best and special attention to a section of our society which comprises of differently abled citizens. This is true equality and effective conferment of equal opportunity."
(Emphasis Supplied)
25. In (2013) 10 S.C.C. 772 Union of India and Another Vs. National Federation of the Blind and Others , the Supreme Court in paragraph Nos. 23 and 50 observed as follows:-
"23. India as a welfare State is committed to promote overall development of its citizens including those who are differently Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 28/36 WPL.12994.2021.doc abled in order to enable them to lead a life of dignity, equality, freedom and justice as mandated by the Constitution of India. The roots of statutory provisions for ensuring equality and equalization of opportunities to the differently abled citizens in our country could be traced in Part III and Part IV of the Constitution. For the persons with disabilities, the changing world offers more new opportunities owing to technological advancement, however, the actual limitation surfaces only when they are not provided with equal opportunities. Therefore, bringing them in the society based on their capabilities is the need of the hour."
(Emphasis Supplied) "50. Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right to make a useful contribution to their own lives and to the lives of their families and community."
26. We will hereinafter examine facts of the present case on the touchstone of the relevant aspects of the said enactments set out in earlier part of this judgment and the principles set out in the above referred judgments of the Supreme Court. It is significant to note that both these enactments are social welfare legislations enacted for the benefit of persons with disabilities and its provisions must be so interpreted in order to fulfill its objective. The Supreme Court has observed that the role of the State authorities should be proactive and approach and attitude of the executive must be liberal and relief oriented and not obstructive.
27. The important terms and conditions of said advertisement relevant for the present discussion are as follows:-
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(i) passing of 10th standard (S.S.C.) or equivalent examination by obtaining minimum 40% marks with Marathi subject of 100 marks.
(ii) candidate should be able to read, write and speak in Marathi language.
(iii) Candidate should have necessary knowledge of Marathi, Hindi languages as per the requirement of the post. (Condition No.20)
(iv) Candidate should be a resident of Maharashtra. (Condition No.24)
28. Petitioner is suffering from 100% hearing impairment of both ears. Admittedly, Petitioner is having 100% disability. He is suffering from said disability since his birth. Section 2(c) of the 2016 Act inter alia defines "barrier" to mean any factor including communicational which hampers the full and effective participation of specially abled persons in society. Section 2(f) inter alia defines "communication" as including means and formats of communication, languages etc. Thus, identifying post of "Labour" for specially abled candidates and thereafter putting eligibility conditions which will act as barrier is totally contrary to the provisions of the said enactments. Section 3 of the "2016 Act" is regarding equality and non-discrimination. Sub- section (2) of section 3 of 2016 Act provides that State shall take steps to utilize the capacity of persons with disabilities by providing appropriate environment. Sub-section (3) of section 3 of 2016 Act provides that specially abled person shall not be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim. In Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 30/36 WPL.12994.2021.doc the light of these provisions it is also to be noted that Petitioner was in the service of the M.C.G.M. on the post of Labour since 29 th September, 2017 till his termination on 18 th March, 2021 i.e. for about 3 years and 6 months. It is not the contention of M.C.G.M. that the Petitioner had failed to perform his duties as Labour during the said 3 years and 6 months in view of lack of said eligibility criteria i.e., in not having Marathi subject of 100 marks in S.S.C. examination. Thus, applicability of the above eligibility requirements are required to be considered keeping in mind various provisions of the said enactments, object behind the same and the disability which he is suffering.
29. While considering the question of applicability of said eligibility condition to Petitioner's case, it is absolutely essential to adopt a pragmatic approach which will further the object behind "1995 Act" and "2016 Act". Thus, the terms and conditions of the said advertisement are required to be understood and interpreted in a manner which will ensure full and effective participation of specially abled persons and their inclusion in society. The said advertisement also reserves certain seats for persons who suffer from blindness. Person who suffers from 100% blindness may not be able to write Marathi (except in braille)and will not be able to read Marathi (except in braille). Thus, to fulfill objective behind enacting "1995 Act" and "2016 Act" in full and effective manner in the present case it is absolutely necessary that the terms and conditions of the said advertisement are required to be interpreted and applied in a sensible manner by taking a practical and reasonable approach. It is also very necessary to show flexibility as per the requirements of Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 31/36 WPL.12994.2021.doc individual cases. Thus, while considering the applicability of said terms and conditions it is also required to keep in mind nature of disability suffered by a particular specially abled person who has applied for posts identified for specially abled person. All the specially abled persons can not be judged by applying the same yardstick.
30. One of the essential qualification as set out in the said advertisement is that a candidate should be able to write, read and speak Marathi language. Condition No. 20 stipulates that candidate should have necessary knowledge of Marathi and Hindi languages as per the requirements of the post. In fact, eligibility condition of passing of S.S.C. or equivalent examination by obtaining minimum 40% marks in Marathi subject is to ensure that candidate should be able to write, read and speak Marathi language. Admittedly, Petitioner is suffering from 100% hearing impairment. Therefore, he may not be able to speak Marathi or for that matter any spoken language. Thus, it is absolutely essential to adopt liberal approach which will further the object behind "1995 Act" and "2016 Act"
while considering the question of applicability of said eligibility condition to Petitioner's case.
31. In a recruitment of this nature dealing with persons with disabilities, authorities should adopt pragmatic and sensitive approach and not hypertechnical approach. Otherwise identification of posts in establishments by State authorities for specially abled persons will become redundant by prescribing eligibility criteria which will act as barrier, rather than facilitating the object of the two Acts. Such actions will be discriminatory and contrary to the Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 32/36 WPL.12994.2021.doc provisions of "1995 Act" as well as "2016 Act".
32. Thus, it is clear that the qualifications as contained in said advertisement are to be understood and interpreted in pragmatic manner, in the light of object of the aforesaid enactments which are to be fulfilled and for furthering the said object. The eligibility conditions are also required to be understood and interpreted from the point of view of the disability which the particular specially abled person is suffering.
33. It has been mentioned in the petition that Petitioner is a resident of Kalwa, District-Thane and has taken education in Maharashtra. It is further stated in the petition that Petitioner is brought up in the State of Maharashtra, specially around Mumbai and Thane, and therefore, he is well acquainted with Marathi language from childhood.
34. It is also significant to note that Petitioner has not made any misrepresentation to the M.C.G.M. He has produced his marksheet of 10th standard and in the column regarding marks obtained in Marathi subject, the same is kept blank. It is clear that there is no misrepresentation or suppression by Petitioner. Thus, there is no substance in the contention of Respondents that Petitioner has misrepresented or suppressed certain information.
35. We find that the authorities have adopted very hyper-technical approach and has completely ignored the object to be achieved under both the enactments. If the qualification which is set out in Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 33/36 WPL.12994.2021.doc the advertisement is very strictly construed, then that will violate the object of both the enactments and will act as barrier and will be discriminatory. Thus, the said qualification as set out in the advertisement will not apply to the Petitioner who is suffering from 100% disability of hearing impairment.
36. Ms. Manjiri Parasnis, learned counsel for the Petitioner and Ms. Rupali Adhate, learned counsel for the Respondents relied on several authorities on the aspect of relevant date of application of eligibility criteria to be considered for selection. In fact we had put up a query as to whether subsequent acquisition of qualification or higher qualification would save the selection or appointment as Petitioner had Marathi as a subject in the H.S.C. examination securing 43% marks. Almost all the judgments which are cited by both the sides takes the view that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications. It is further held that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. It has been held that in the absence of fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for scrutiny of the qualifications will be the last date for making the applications.
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37. Ms. Rupali Adhate, learned counsel for the Respondents also relied on the case reported in Preetesh Raman Singh (supra) and particularly on paragraph 14 of the same. The said paragraph is as follows:-
"14. This Court lately in State of Gujarat v. Arvind Kumar T. Tiwari AIR 2012 SC 3281 held: A person who docs not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules, and would therefore, he void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (Sec. Prit Singh v. S. K. Mangal 1993 Supp (1) SCC 714 and Pramod Kumar v. U. P. Secondary Education Services Commission (2008) 7 SCC
153.)".
38. There is no dispute about the abovereferred legal position. However, the same is not relevant for the present case, as we have come to the conclusion that the above referred qualifying conditions are not applicable to the Petitioner having regard to the fact that it was a special recruitment drive for providing employment to persons with disabilities in terms of the two enactments. As we have seen the dominant object is to recruit persons with disabilities. The focus therefore should be to fulfill the dominant objective by facilitating such recruitment and not by erecting barrier. We may remind ourselves that disability knows no barrier. As Supreme Court has said employment is a key factor in the empowerment and inclusion of people with disabilities. This must always be borne in mind by the employer while conducting such recruitment.
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39. Ms. Rupali Adhate, learned counsel for Respondents also relied on the judgment in the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another (supra) and particularly on paragraph No.6 of the same. The said paragraph 6 is set out hereinbelow:-
"6. It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had applied for the post because they did not possess the qualifications mentioned in the advertise- ment. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudu- lent practice. We are afraid that the Tribunal lost sight of this fact."
39.1. However, in the present case, as we have already discussed, Petitioner was appointed on the basis of his 100% disability and marks obtained by him in 10 th standard examination, question of any misrepresentation or practicing fraud does not arise. Thus the above observations are not applicable in the facts and circumstances of this case.
40. We have already observed and held that the impugned termination order is totally illegal and bad in law as the same is violative of the principles of natural justice and Articles 14 and 21 of the Constitution of India.
41. In the light of above discussion, we allow the Writ Petition and Sonali ::: Uploaded on - 07/09/2021 ::: Downloaded on - 08/09/2021 04:41:10 ::: 36/36 WPL.12994.2021.doc pass the following order:-
ORDER
(i) Impugned order dated 18th March, 2021 of Respondent No. 3-
Assistant Commissioner (Market Department) of M.C.G.M. and communication dated 18th March, 2021 of Respondent No.4-Administrative Officer (Market Department) of M.C.G.M. are quashed and set aside.
(ii) Respondents are directed to forthwith restore the services of the Petitioner in the post of Labour in terms of his appointment order dated 29th September, 2017 with continuity of service and all consequential benefits, including arrears of salary.
(iii) Writ Petition is allowed in above terms.
(MADHAV J. JAMDAR, J.) (UJJAL BHUYAN, J.)
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