Allahabad High Court
Siddharth vs State Of U.P. Thru. Prin. Secy. Law ... on 7 April, 2023
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 17 Case :- WRIT - A No. - 1345 of 2023 Petitioner :- Siddharth Respondent :- State Of U.P. Thru. Prin. Secy. Law Deptt. Of U.P. Civil Secrett. Lko. And 2 Others Counsel for Petitioner :- In Person Counsel for Respondent :- C.S.C.,Raj Kumar Upadhyaya (R.K.Upadhyaya) Hon'ble Dinesh Kumar Singh,J.
1. Since the petitioner, who appears in person, has not been able to address the Court properly, the Court has requested Dr. V.K. Singh, Advocate, to assist the Court in disposal of this writ petition.
2. Heard Dr. V.K. Singh, learned amicus curiae and Sri R.K. Upadhyaya, learned counsel for the U.P. Public Service Commission.
3. The present petition under Article 226 of the Constitution of India has been filed seeking a Writ of Certiorari quashing the notification dated 27.1.2023 issued by the Examination Controller, U.P. Public Service Commission, Prayagraj (for short ?Commission?) with further to issue a Writ of Mandamus commanding the opposite parties to issue the admit card and permit the petitioner to appear in the U.P. Judicial Service Civil Judge (Junior Division) Examination, 2022.
4. The petitioner participated in the prelims examination by the orders of this Court in respect of the recruitment to the posts of Civil Judge (Junior Division) which were advertised vide advertisement dated 10.12.2022. The petitioner is a disabled man. His medical certificate issued by the Chief Medical Officer, Lucknow would disclose that petitioner is 60% permanent physically disabled in relation to Muscular Dystrophy and his both legs are effected. The petitioner is having Locomotor Disability in both legs.
5. The petitioner is present in person before this Court and the Court can also observed that petitioner has disability in his both legs. The advertisement issued for the post of Civil Judge (Junior Division) would disclose that four posts have been reserved for physically disabled persons as provided under the Rights of Persons with Disabilities Act, 2016 (for short 'Disabilities Act, 2016'). One such post is reserved for Locomotor Disability of one leg/both legs. No one can dispute that petitioner has Locomotor Disability in both legs.
6. The technical plea of the learned counsel for the Commission is that since in the medical certificate it has written that the petitioner has Muscular Dystrophy in both legs, he cannot be treated to be a candidate belonging to the category of Locomotor Disability in both legs. Such construction placed by the learned counsel for the Commission goes against the provisions of Section 34 of the Disabilities Act, 2016. For the sake of convenience, Section 34 of the Disabilities Act, 2016 would read 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 clause (a), (b) and (c) and one per cent for persons with benchmark disabilities under clause (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 specified in such notifications exempt any Government establishment from the provisions of this section.
(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.
(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.?
7. Locomotor Disability includes cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy. The Muscular Dystrophy is a sub-category of Locomotor Disability. If a post has been reserved for a candidate belonging to Locomotor Disability and the petitioner has Locomotor Disability in both legs, he has to be treated as a person belonging to Locomotor Disability category.
8. Learned counsel for the Commission has vehemently submitted that the Government has not identified any post for a person, who is having disability of Muscular Dystrophy.
9. If the advertisement runs contrary to the express provisions of law, it has to be ignored as the provision in the Disabilities Act, 2016 is a beneficial legislation with an object to provide dignity to the persons. The provisions of the statute are to be interpreted in a beneficial manner. If in the advertisement, the post has been reserved for a person having Locomotor Disability, but it leaves out Muscular Dystrophy as a sub-category of Locomotor Disability, the advertisement is defective and the person cannot be ousted if he has Muscular Dystrophy in both legs. Such a person is to be treated as person with Locomotor Disability. Further, this disability will not come on the way of the petitioner to perform the functions of Civil Judge (Junior Division), if he is selected.
10. In view thereof, the present petition is allowed and the Commission is directed to declare the result of the petitioner of the preliminary examination and if he has cleared the exam, he should be allowed to appear in the main examination.
11. This Court puts its appreciation on record for able assistance of Dr. V.K. Singh, Advocate, in disposal of this petition.
Order Date :- 7.4.2023 Rao/-