Himachal Pradesh High Court
Dinesh Kumar S/O Sh. Krishan Dass vs ) on 15 December, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 15th DAY OF DECEMBER 2021 .
BEFORE HON'BLE MS. JUSTICE JYOTSNA REWAL DUA CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 1866 of 2020 Between:-
DINESH KUMAR S/O SH. KRISHAN DASS, R/O NEAR CIVIL HOSPITAL, GHUMARWIN, DISTRICT BILASPUR, HIMACHAL PRADESH.
.....PETITIONER (BY SHRI MALAY KAUSHAL, ADVOCATE) AND
1. STATE OF HIMACHAL PRADESH THROUGH ADDITIONAL CHIEF SECRETARY (FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.
2. HP STATE CIVIL SUPPLIES CORPORATION LTD., THROUGH THE MANAGING DIRECTOR, BLOCK NO. 16-17, SDA COMMERCIAL COMPLEX, KASUMPTI, SHIMLA, H.P. -171009.
3. THE DIRECTOR, DIRECTORATE FOR EMPLOYMENT OF SCS, OBCS, MINORITIES AND SPECIALLY ABLED, BLOCK NO. 33, SDA COMPLEX, KASUMPTI, SHIMLA, H.P.-171009.
4. SH. VIKAS SIDHU, S/O SH. MOHAN SINGH, HOUSE NO. 74 NEAR LAL KOTHI, FAGLI, SHIMLA, H.P.-171004.
.....RESPONDENTS ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 2 (SH. VIKRANT CHANDEL, DEPUTY ADVOCATE GENERAL, FOR R-1 & R-3, .
SMT. BHAWNA DUTTA, ADVOCATE, FOR R-2 & R-4) WHETHER APPROVED FOR REPORTING? YES _______________________________________________________ This petition coming on for orders this day, the Court passed the following:
r ORDER Respondent No. 4 was selected and appointed by respondent No. 2 as Clerk against the advertised vacancy reserved for visually handicapped visual impaired (Low Vision).
The selection and appointment has been assailed by the petitioner in the instant petition on the ground that disability of respondent No. 4 fell in category of 'blindness' and he was 100% visually handicapped, whereas the post was reserved for 'low vision' visually impaired.
2. Facts 2(i) Respondent No. 2 i.e. H.P. State Civil Supplies Corporation Limited issued an advertisement on 5.12.2014 inviting applications from eligible persons for the post of Clerk to be filled-up on contract basis. The post was meant for visually ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 3 handicapped persons VI (Low Vision). The eligibility conditions prescribed in the advertisement were as under:
.
a) The candidate must be in possession of graduate degree from a recognized university.
b) The candidate should be bonafide resident of Himachal Pradesh.
c) The candidate must have been declared visually handicapped by the competent authority.
d) The age of the candidate should not be over 45 years as on 1.1.2014.
The advertisement also stipulated that the interested candidates having above qualifications could apply for the post of Clerk alongwith attested copies of educational qualification i.e. Matriculation, +2, B.A. and visually handicapped certificate VI Low Vision (LV).
2(ii) The petitioner was suffering from 40% low vision disability. He satisfied the eligibility criteria stipulated in the advertisement and, therefore, applied for the post in question.
Respondent No. 4 Shri Vikas Sidhu also applied for the post in question.
2(iii) On 3.12.2014 respondent No. 2 wrote to the Employment Officer (Placement), Directorate of Employment and Training , Shimla to sponsor the names of visually impaired ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 4 candidates for filling-up the post of Clerk reserved for visually impaired (LV). Reminders in this regard were also sent to the .
Employment Exchange. The Employment Exchange eventually forwarded some names to respondent No. 2 on 26.4.2017.
Respondent No. 2 also published the advertisement in the newspaper on 3.5.2017 inviting applications for filling up the post of Clerk on contract to basis on fixed emoluments. The post as indicated in the earlier advertisement r contractual issued in the year 2014 was again shown to be reserved for visually handicapped visual impaired (LV) persons. The advertisement reads as under:
"The Management of H.P. State Civil Supplies Corporation Limited proposed to fill-up one (1) post of Clerk on contract basis on fixed contractual amount @ Rs. 8.760/- per month ( 5910+1900+950 i.e. 50% of the Grade Pay) reserved for visually handicapped persons Visual Impaired (LV). The essential qualification for this post is as under:
1. The candidate must have passed graduation from any recognized University.
2. He/she should be a bonafide resident of Himachal Pradesh.
3. He/she must have been declared visually handicapped by competent authority.
4. The age of applicant should not be more than 45 years as on 01.01.2017 The interested candidates having above qualification may apply for the post of Clerk on a simple application along with attested copies of each educational qualification i.e. ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 5 Matriculation, +2, BA and visually handicapped certificate Visual Impaired (LV) and the same must reach in the o/o Managing Director, H.P. State Civil Supplies Corporation Limited, Block .
No. 16-17, SDA Commercial Complex, Kasumpti Shimia-9 on or before 31.05.2017 up to 5:00 PM. The applications received after this date shall be summarily rejected."
2(iv) The selection process commenced.
Interview/screening was conducted by respondent No. 2 on 22.9.2017. Respondent No. 4 with 14.5 marks stood at serial No. 1 and petitioner with 13.36 marks stood at serial No. 2 of the merit list. Respondent No. 4 being at serial No. 1 in the merit list was offered the appointment. He joined his duties and is stated to be continuing to serve in respondent No. 2- Corporation.
3. Contentions 3(i) The grievance of the petitioner is that respondent No. 4 did not satisfy the eligibility conditions mentioned in the advertisement in question. That the post in question was reserved for visually impaired (Low Vision), whereas respondent No. 4 was a blind person. That the medical certificate dated 3.5.2016 appended by respondent No. 4 along with his application though showed the category of his disability as 'Low Vision', however, the remarks on the said certificate were that he was "visually handicapped 100%".
::: Downloaded on - 31/01/2022 23:26:32 :::CIS 6Shri Malay Kaushal, learned counsel for the petitioner submitted that after acquiring the documents .
pertaining to respondent No. 4 under the Right to Information Act, the petitioner on 12.10.2017 represented to respondent No. 2 in respect of respondent No. 4's ineligibility for the post in question. No action was taken by the respondent-Corporation on this representation, compelling the petitioner to file instant petition on 5.1.2018 with the following prayers:
"i) Quash the selection/appointment of respondent no.4 to the post of clerk on contract basis reserved for visually impaired (LV) in respondent no.2 Corporation;
ii) Direct the respondent no.2 to offer the post of clerk on contract basis reserved for visually impaired (LV) in respondent no.2 Corporation, to the applicant, being the next candidate in merit."
3(ii) Ms. Bhawna Dutta, learned counsel appearing for respondents No. 2 and 4 submitted that the post in question was advertised in terms of the policy decision of the respondent-State Government dated 16.1.2006. The post was reserved for visually handicapped personnel. Respondent No. 4 fell in the category of visually handicapped, hence, there was no error in his selection and appointment against the post in ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 7 question. Learned counsel also placed reliance upon the selection criteria adopted in the selection of the candidates .
whereunder maximum of six marks could be allotted to a candidate depending upon the percentage of his disability. In the said criteria two marks were allocated for candidates with visual disability of 40-59%, four marks for candidate with disability of 60-79% and maximum six marks for candidate with disability ranging from 80-100%. Learned counsel submitted that respondent No. 4 suffered from 100% disability and was accordingly given six marks under this head. Respondent No. 4 was highest in the merit list and accordingly he was selected by respondent No. 2 and appointed against the post in question.
3(iii) Respondent No. 3-the Directorate for Empowerment of SCs, OBCs, Minorities and Specially abled in its reply filed on 1.3.2018 submitted that respondent No. 2 had issued the advertisement for the post of Clerk reserved for the person with disabilities Visually Impaired (Low Vision) under Section 32(a) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. That all formalities such as prior identification of posts, advertisement of posts, scrutiny of applications, issuance of call letters and appointment ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 8 letters was done by respondent No. 2 at its own level. The interview for the post in question was held under Chairmanship .
of respondent No. 3. The selection committee recommended name of respondent No. 4 on the basis of record i.e. valid medical certificate issued by the competent authority.
Respondent No. 3 further submitted in its reply that in case incorrect medical certificate was issued to respondent No. 4, then the petitioner should have approached appropriate medical authority for redressal of his grievances. That petitioner's representation had been forwarded to the Health Department on 2.2.2018 to provide clarification "as to whether any person could be given a medical certificate for 100% Low Vision."
4. Observations I have heard learned counsel for the parties and gone through the case file. In my considered view, this petition deserves to be allowed for the following reasons:
4(a) 'Blindness' and 'Low Vision' are two separate nature of disabilities recognized under the Rights of Persons with Disabilities Act, 2016. Section 2(i) in this regard reads as under:-
"2(i) "disability" means-::: Downloaded on - 31/01/2022 23:26:32 :::CIS 9
(i) blindness;
(ii) low vision"
.
Section 2(b) defines "blindness" as under:
"(i) total absence of sight; or
(ii) visual acuity not exceeding 6/60 or 20/200
(snellen) in the better eye with correcting lenses; or
(iii) limitation of the filed of vision subtending an angle of 20 degree or worse;"
Section 2(u) defines low vision as:-
"person with low vision" means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device;"
4(b) It is the respondents' pleaded and canvassed case that the post in question was advertised in terms of the policy/instructions of the respondent-State dated 16.1.2006 (Annexure R-1). Being relevant, the contents thereof are extracted hereinafter:
"No. PER.(AP)-C-B(12)-1/2006 Government of Himachal Pradesh Department of Personnel (AP-III).
Dated: Shimla-171 002, the 16" January, 2006 From ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 10 The Principal Secretary (Pers), to Government Himachal Pradesh.
.
To
1. All the Secretaries to the Govt. of Himachal Pradesh.
2. All the Heads of Departments in Himachal Pradesh.
3. All the Deputy Commissioners in Himachal Pradesh
4. All the Chairmen/Managing Directors/Secretaries/ Registrars of all the Public Sector Undertakings/ Corporations/Boards/Universities etc. in Himachal Pradesh.
Subject: Providing of reservation to the disabled persons in respect of Class-I to IV posts/service to be filled in by direct recruitment-Instructions therefor regarding.
I am directed to say that the State Government has provided 3% reservation to the disabled persons in direct recruitment in respect of Class-III and IV posts/services vide Department of Personnel letter No. Karmik(NI-II)B(12)-11/76, dated 22.01.1981, which has further been split up 1% each to the Blind, Deaf and Orthopedically Handicapped vide Department of Personnel letter No. Karmik (NI-11) B(12)-11/76, dated 11.05.1981. Thereafter, 3% reservation has also been provided to the disabled persons in respect of Class-I and II posts/services direct recruitment by the State Government vide Department of Personnel letter No. PER. (AP)-C- B(12)-1/99, dated the 2nd December, 1999.
2. Pursuant to these instructions, 1% reservation has been distributed to all the Visually Impaired Persons without considering the percentage of their disability. This matter was under consideration of the Government for quite some-time past. After a through scrutiny of the matter it has now been decided by the Government that henceforth, 1% reservation provided to the Visually impaired Persons ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 11 may be distributed further in between the totally blind and low vision persons in the ratio of 2:1 respectively, subject to the condition that this .
reservation will be given to them out of their own 1% quota i.e.their total percentage of reservation in services shall not exceed the limit of 1% reservation distributed to this category of the disabled persons.
3. These instructions may please be followed strictly and also brought to the notice of all concerned for compliance.
Yours faithfully,
Deputy Secretary (Pers.) to the
r Govt. of Himachal Pradesh"
4(c) The above extracted policy pertains to providing
reservation to disabled persons in State services through direct recruitment. The instructions state that vide letter dated 11.5.1981 the 3% reservation available to the disabled persons in direct recruitment in State services has been split up 1% each to the blind, deaf and orthopedically handicapped category. The 1% reservation for the visually impaired persons has been further split up between totally blind and low vision persons in the ratio of 2:1. It is not in dispute that the post in question was advertised by the respondent-corporation for visually handicapped persons VI visually impaired (LV). The advertisement (already extracted above) clearly stated that ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 12 interested candidates satisfying the requisite educational qualifications criteria alongwith visually handicapped visually .
impaired (LV) certificate were to apply for the post. Respondent No.2 in para-3 of its reply on merits filed to the writ petition has also stated that the vacancy was reserved for visually impaired (LV) handicapped persons under 1% reservation for category of visually impaired (low vision).
hereinafter:-
r to The para is extracted "3. That Para 3 of the application is wrong hence denied. It is submitted that Respondent No. 4 Sh. Sidhu son of Sh. Mohan Singh has been offered appointment as clerk on contract basis against the vacancy reserved for visually impaired (LV) handicapped person being eligible, under 1% reserved for category of Visually impaired (Low Vision) as per instruction contained in letter No. PER(AP)-
C-B(12)1/2015 dated 16.1.2006 (Annexure 'R-1)."
Also, in its correspondence with Employment Exchange (Annexures R-2 to R-5), respondent No. 2 had stated that "post comes in the share of reservation of physically handicapped persons for general category which is earmarked for category of disabled Visual Impaired (Low Vision).........."
4(d) The medical certificate for physically handicapped persons appended by respondent No.4 alongwith his ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 13 application has been placed on record. As per this certificate dated 3.5.2016, respondent No.4 was suffering from low vision, .
disability but in the remarks column it was stated that he was a case of 'visually handicapped 100%'. The petitioner in his representation to respondent No.2 sent on 12.10.2017 complained that respondent No.4 was 100% visually disabled (blind), whereas the post in question was advertised by respondent No.2 as reserved for visually impaired (LV). It appears that during the pendency of the present petition, action was taken by respondent No.2 on the representation of the petitioner for verifying the disability of respondent No.4.
Petitioner's representation was forwarded to the Director Health and Family Welfare Department on 2.2.2018 to provide clarification as to whether any person could be given a medical certificate for low vision disability in case of 100% visual handicap.
Further communications in this regard received from the Health & Family Department have been placed on record as Annexures R/9 to R/11. The sum total of these documents is that disability certificate issued to respondent No. 4 on 3.5.2016 was reviewed by the two member Committee of Eye Surgeons ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 14 of Deen Dayal Upadhyaya Hospital, Shimla. The committee reported that the category of disability in the disability certificate .
of respondent No.4 was erroneously marked as low vision. The disability suffered by respondent No.4 fell in the category of blindness. He was visually handicapped to the extent of 100%.
The committee's report dated 18.01.2019 is extracted hereinafter:-
r to "With due regards, it is submitted that in the disability certificate of Vikas Sidhu S/o Late Sh. Mohan Singh, the category was erroneously marked as low vision but he fall in the category of blindness as his visual acuity is FC 1 foot in both eyes due to bilateral optic atrophy and is visually handicapped to the extent of 100% as has already been mentioned in his disability certificate, hence it may be treated as blindness. Further it is stated that if necessary, he may be asked to appear before board on any working day."
The medical examination of respondent No.4 was conducted afresh by the State Medical Board. The fresh medical certificate issued to him on 19.03.2019 has also been placed on record, whereunder category of his disability has been described as 'blindness' with the remarks 'visually handicapped 100%'.
::: Downloaded on - 31/01/2022 23:26:32 :::CIS 15The above documents have been placed on record by respondent No. 2 with the submission that medical record .
reflects 100% blindness of respondent No. 4.
5. Conclusion From the above discussion it becomes quite clear that :-
5(i) 'Blindness" and 'Low Vision' are two separate nature 2016.
r to of disabilities under the Rights of Persons with Disabilities Act, 5(ii) 1% reservation available to persons suffering from visual disability was split up in the ratio of 2:1 for totally blind and low vision persons, respectively.
5(iii) The post in question was advertised for visually impaired persons suffering from 'low vision' disability and not for visually impaired persons suffering from 'blindness'.
5(iv) Respondent No.4 applied as a candidate suffering from disability of low vision. His medical certificate dated 3.5.2016 described him as falling in the category of 'low vision', however, it also stated that he was 100% visually handicapped person. He was selected and appointed on the basis of this medical certificate.::: Downloaded on - 31/01/2022 23:26:32 :::CIS 16
5(v) On the representation of petitioner, the disability certificate of respondent No.4 was got verified again by .
respondent No.2 from the State Health and Family Welfare Department. The medical expert committee constituted for this purpose held that respondent No.4 was 100% visually handicapped. Nature of disability suffered by him was 'blindness' and not 'low vision'. That the category of disability in the medical certificate of respondent No. 4 issued on 3.5.2016, was wrongly marked as 'low vision' instead of 'blindness'.
Respondent No. 4 was also medically examined by State Medical Board thereafter. The disability certificate issued to respondent No. 4 on 19.3.2018 described nature of his disability as 'blindness' with 'visual handicap 100%.' 5(vi) The criteria formed by Selection Committee for awarding 6 marks to the persons suffering from 100% visually impairedness is of no help to respondent No.4. The post in question was reserved for visually impaired (low vision). This has also been mentioned at the top of the result sheet prepared by the selection committee. Nature of disability suffered by respondent No. 4 fell in the category of 'blindness' and not 'visually impairedness (low vision)'.
::: Downloaded on - 31/01/2022 23:26:32 :::CIS 175(vii) During hearing of the case, learned counsel for the petitioner, to show different treatment of instant case by .
respondent No. 2 also placed on record a list of candidates rejected by respondent No.2 on 1.9.2021 for direct recruitment to the post of Junior Office Assistants (IT) to filled up on contract basis. The post therein was statedly reserved for visually impaired (LV). The list shows that applications of several candidates had been rejected by respondent No.2 on the ground that nature of disability mentioned in their certificates was 'Blindness', whereas the post was reserved for 'Low Vision' category of Visually Impaired disability.
For all the aforesaid reasons, I find merit in the present writ petition. Accordingly, the writ petition is allowed. The selection and appointment of respondent No.4 against the post in question is quashed and set aside. Respondents No.2 and 3 are directed to offer appointment against the post in question to the petitioner, who is next in the merit list within a period of three weeks from today. Pending miscellaneous application (s), if any, shall also stand disposed of.
Jyotsna Rewal Dua Judge 15th December, 2021 (vs) ::: Downloaded on - 31/01/2022 23:26:32 :::CIS