Rajasthan High Court - Jodhpur
Vimla Choudhary vs State Of Rajasthan on 15 December, 2020
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S.B. Civil Writ Petition No. 104/2020
Anadu D/o Ram Lal, Aged About 24 Years, B/c Jat, R/o Gulji Ka
Pana, Khotho Ki Dhani, Tehsil Baytu, District Barmer (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Medical Health And Family Welfare Department,
Government Of Rajasthan, Secretariat, Jaipur (Raj.).
2. Director, Medical And Health Services, Tilak Marg,
Swasthya Bhawan, Jaipur (Raj.).
3. Additional Director (Administration), Medical And Health
Service, Tilak Marg, Swasthya Bhawan, Jaipur (Raj.).
----Respondents
Connected With
(2) S.B. Civil Writ Petition No. 1339/2020
Vimla Choudhary D/o Shri Durga Ram W/o Shri Swaroop Ram,
Aged About 27 Years, Resident Of 92, Mundelo Ka Bas, Bilara,
District Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Department Of
Medical And Health Services, Government Secretariat,
Jaipur, Rajasthan.
2. The Addl. Director (Admn.), Medical And Health Services,
Swasthya Bhawan, Rajasthan, Jaipur.
3. The Addl. Director (Training), Medical And Health
Services, Swasthya Bhawan, Rajasthan Jaipur.
----Respondents
(3) S.B. Civil Writ Petition No. 1364/2020
Seema Kumari Dhobi D/o Shri Lala Ram Dhobi, Aged About 27
Years, R/o Village-Post Bisundani, Tehsil Sawar, District Ajmer
(Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
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Medical And Health Services (Group-Iii), Govt. Of
Rajasthan, Secretariat, Jaipur.
2. The Director (Public Health), Medical And Health Services,
Rajasthan, Swasthya Bhawan, C-Scheme, Tilak Marg,
Jaipur.
3. The Additional Director (Administration), Medical And
Health Services, Rajasthan, Tilak Marg, Swasthya
Bhawan, Jaipur.
----Respondents
(4) S.B. Civil Writ Petition No. 1566/2020
Priyanka Rao D/o Shri Swaroop Singh, Aged About 26 Years, R/o
Village Pahadpura, Tehsil Sanchore, District Jalore (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Medical And Health Service (Group-Iii), Govt. Of
Rajasthan, Secretariat, Jaipur.
2. The Director (Public Health), Medical And Health Services,
Rajasthan, Swasthya Bhawan, C-Scheme, Tilak Marg,
Jaipur.
3. The Additional Director (Administration), Medical And
Health Services, Rajasthan, Tilak Marg, Swasthya
Bhawan, Jaipur.
----Respondents
(5) S.B. Civil Writ Petition No. 2229/2020
Deepa Bai D/o Sahab Ram, Aged About 29 Years, Village 9 Ksb,
Tehsil Raisinghnagar District Sri Ganganagar.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Medical And Health, Government Of Rajasthan,
Secretariat, Rajasthan, Jaipur.
2. The Director, Medical And Health Services, Rajasthan,
Jaipur.
3. Addl. Director (Admn.), Medical And Heatlh Services,
Rajasthan, Jaipur.
----Respondents
(6) S.B. Civil Writ Petition No. 2684/2020
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Parma Devi Bishnoi D/o Shri Kishan Lal, Aged About 35 Years,
R/o Bichpuri, Rajod, Tehsil Degana, District Nagaur (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Medical Health Services (Group-Iii), Govt. Of Rajasthan,
Secretariat, Jaipur.
2. The Director (Public Health), Medical And Health Services,
Rajasthan, Swasthya Bhawan, C-Scheme, Tilak Marg,
Jaipur.
3. The Additional Director (Administration), Medical And
Health Services, Rajasthan, Tilak Marg, Swasthya
Bhawan, Jaipur.
----Respondents
For Petitioner(s) : Mr. Mahaveer Bishnoi, Mr. Hanuman
Singh, Mr. Inderjeet Yadav and Mr.
Kistur Chand - All through CISCO
Webex App
For Respondent(s) : Mr. K.S. Rajpurohit, AAG with Mr.
Shreyansh Mehta
Dr. Imran Sheikh - present in person
JUSTICE DINESH MEHTA
Judgment
Reportable 15/12/2020
1. The present group of writ petitions consists of petitioners,
who have approached this Court, being aggrieved of non-
consideration of their candidature under the PH category
(physically handicapped category).
2. The facts in a nut shell are that the respondent State notified
4965 posts of Female Health Worker for the Non-TSP area vide
recruitment notice dated 18.06.2018. Out of those 4965 posts,
3% were kept reserved for persons having 40% or more disability
in one leg (PH-OL Category).
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3. The petitioners have acquired requisite qualification for the
post so notified i.e. Senior Secondary and General Nursing
Midwifery Course (in short "GNM") alongwith requisite registration
with the Rajasthan Nursing Council
4. All the petitioners possess Disability Certificates issued by
the competent authority of the Government of Rajasthan in Form
- IV prescribed under the relevant rules notified by the Central
Government.
5. Petitioners herein, having more than 40% Loco-motor
disability in one leg, aspired for the post of Female Health Worker
so advertised by the State and thus, submitted their application
forms staking their claims against the posts reserved for Physically
Challenged (PH-OL Category).
6. On 14.12.2019, the respondents issued provisional merit list
in furtherance of the above referred recruitment notification,
inspite of securing more marks than some of the enlisted
candidates, petitioners did not find themselves in the said list.
7. On enquiries being made, petitioners were informed that
their candidature has been rejected on the premise that they fell
in "Other Category PH" and not in PH - OL category.
8. Some of the petitioners raised their grievance before the
respondent No.3, but the same remained unheeded and on
18.1.2020, the respondent No.3 released select list, excluding
petitioners' names.
9. The petitioners have asserted in their writ petitions that they
have secured more marks than the cut off marks declared for their
respective categories (PH).
10. On 04.03.2020, at the time of preliminary hearing, it was
brought to the notice of the Court that during document
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verification, the respondents had conducted petitioners' medical
examination and found that their disability was not in conformity
with what was claimed by them.
11. Learned Addl. Advocate General was, however, not in a
position to apprise as to how the petitioners were consigned to
'other PH Category' instead of 'PH - OL category'. Learned counsel
appearing for the petitioners expressed an apprehension that as
the medical examination of the candidates was done on the spot,
there might have been an erroneous assessment of petitioners'
disability. That apart, as there was no prima-facie material to
justify the rejection of the petitioners on the basis of their
classification under 'Other PH Category' or 'Both Leg', the following
order came to be passed by this Court :-
"Counsel for the petitioners submitted that such
examination was done on the spot and hordes of candidates
were examined, hence, possibility of error cannot be ruled
out, given the fact that each of the petitioners do possess
appropriate certificate issued by the competent authority.
In view of the aforesaid, without commenting anything
on correctness of either of the certificates, this Court deems
it appropriate to refer these cases to a Medical Board to be
constituted by Principal, Dr. SN Medical College, Jodhpur for
examining the petitioners' percentage of disability."
The Principal, Dr. SN Medical College, Jodhpur shall
constitute appropriate Medical Board to examine petitioners'
physical condition, which will examine the candidates at
Mathura Das Mathur, Hospital, Shastri Nagar, Jodhpur on
18.03.2020 at 11.00 am.
All the petitioners shall remain present at Mathura Das
Mathur Hospital, Jodhpur on the aforementioned date and
time.
A nominee of the respondent-department shall also
remain present with relevant record and material.
List all these cases on 30.03.2020."
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12. In furtherance of the directions so issued, the Medical Board
of three Doctors examined the petitioners on 18.03.2020 and has
given the following report :-
Sr. App.ID Applicant Father DOB Gen Dignosis Percent Category
No Name Name der Disability Patient
.
1 (CWP No. Andu Ram Lal 07-08-1995 F PPRP BOTH ABOVE BL 104/20) LOWER FORTY 4204310 LIMB PERCENT (> 40% ) 2 (CWP No. Suresh Shukhdev 10-07-1991 M PPRP BOTH ABOVE BL 743/20) Ram LOWER FORTY 3213615 LIMB PERCENT ( > 40%) 3 (CWP No. Ram Sukha 15-05-1996 M MUSCULAR ABOVE BA 1061/20) LalNaik Ram DYSTROPY FORTY BL 3215332 BOTH UPPER PERCENT LIMB AND ( > 40% ) BOTH LOWER LIMB 4 (CWP No. Mohamad Mohamad 24-08-1986 M SPASTIC ABOVE BL 1210/20) Rizwan Salim PARAPEEGIA FORTY 3210321 PERCENT (> 40% ) 5 Leela Devi Abs ent 6 (CWP No. Vimla Durga 12-12-1992 F PPRP BOTH ABOVE BL 1339/20) Choudhary Ram LOWER FORTY 3211069 LIMB PERCENT (> 40% ) 7 3231779 Shiv Pratap Moti 19-01-1990 M POST BELOW OL Singh Singh TRAUMATI C FORTY PARTIAL PERCENT STIFF (> 40% ) LEFT KNEE 8 (CWP No. Seema Lala Ram 01-02-1993 F PPRP BOTH ABOVE BL 1364/20) Kumar Dhobi LOWER FORTY 4203250 Dhobi LIMB PERCENT ( > 40%) 9 (CWP No. Priyanka Swaroop 01-05-1993 F SCOLIOSIS BELOW SPINE 1566/20) Rao Singh FORTY 3267912 PERCENT ( < 40% ) 10 (CWP No. Parma Devi Tulcha 10-03-1985 F PPRP BOTH ABOVE BL 2684/20) Bishnoi Kishan Lal LOWER FORTY 4212498 LIMB PERCENT ( > 40% ) 11 Sunder Abs Faytam ent
13. Respondents herein have placed on record the summary report of all the candidates while also placing their individual report.
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14. Assailing the action of the respondents, learned counsel contended that all the petitioners possess requisite qualification; most of them have got admission in nursing courses on the basis of their physical disability; they have been selected on various contractual posts either under the State Government or with the private agencies working under the aegis of the State Government; the petitioners are having valid certificate(s) issued by the competent authority notified under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996 (hereinafter referred to as "the Rules of 1996") and the Rights of Persons with Disabilities Rules, 2017 (hereinafter referred to as "the Rules of 2017") and such certificates are conclusive proof of their being persons with Loco- motor disability in One Leg. It was furthermore asserted that the petitioners are having more than 40% disability in their one leg and thus, entitled to be considered against the posts reserved for PH category. Counsel for the petitioners vehemently argued that correctness of the certificate cannot be questioned by the respondents.
15. Learned counsel also argued that the respondents have erred in subjecting the petitioners to medical examination at the time of document verification. They submitted that during the course of document verification, the respondents can at the best examine the genuineness or authenticity of the certificate(s) so produced by the candidates, but, they cannot sit over the certificate(s) granted by the competent authority under the Rules of 1996 and 2017. Submission was also made that a provision even for cancellation of certificate has been given under the Rules of 2017 and as such, unless the certificate issued to a candidate is (Downloaded on 18/12/2020 at 08:36:42 PM) (8 of 26) [CW-104/2020] cancelled or revoked by the competent authority, the same cannot be brushed aside. They contended that the certificates issued by the competent authority are undeniable proof of eligibility as persons with locomotor disability.
16. Learned counsel submitted that petitioners were selected for GNM Course under the PH category; passed the course of GNM and have worked as contractual employees while taking advantage of reservation, for which, they have developed a legitimate expectation of being considered under PH - OL category in relation to the posts notified by the State. It was vociferously argued that respondents' action of denying the petitioners, right of such consideration is, arbitrary and violative of their fundamental rights guaranteed by Articles 14 and 16 of the Constitution of India.
17. Mr. K.S. Rajpurohit, learned Addl. Advocate General appearing for the respondent - State submitted that the petitioners are indisputably having physical challenge in one leg and they are having a validly issued certificate, indicating more than 40% impairment in one leg, but it was revealed during the course of examination by both the Medical Boards (during the process of document verification, so also during the examination by the Medical Board constituted under the direction of this Court) that the petitioners' other leg is also having impairment. According to him, the Medical Board found that other leg of the petitioners have problem like shortening or weaker muscle strength, as such, their disability cannot be considered as disability confined to 'one leg'. He asserted that their physical condition is liable to be treated as a disability in 'both legs'.
18. Learned Addl. Advocate General submitted that the petitioners have been found candidates of BL category (both legs) (Downloaded on 18/12/2020 at 08:36:42 PM) (9 of 26) [CW-104/2020] and, therefore, their candidature has been rightly rejected. He gently and submissively invited Court's attention towards certificate issued by the Medical Board, particularly the Muscle Chart, and submitted that the strength/power in petitioners' leg muscles is not up to desired standard and thus, they fall in the category of 'BL' (Both Legs).
19. Heard rival counsel. Also considered the explanation/view point of Dr. Imran Sheikh, the member of the Medical Board, who was asked to remain present vide order dated 02.12.2020.
20. Before dilating on the question, which has come up for consideration, it would be better to sail through the relevant statutory provisions. Hence, they are being quoted hereinfra:
(a) Section 2 (t) of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Act of 1995'):-
"2(t)."person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;"
(b) Section 2(r) and Rule 2(s) of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as 'the Act of 2016') :-
"Definitions.-
xxx xxx xxx xxx xxx xxx xxx xxx 2(r) "Person with benchmark disability" means a person with not less than forty per cent. of 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;(Downloaded on 18/12/2020 at 08:36:42 PM)
(10 of 26) [CW-104/2020] 2(s) "Person with disability" means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;"
(c) Section 3 of the Act of 2016 :
"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.
(2) The appropriate Government shall take steps to utilise the capacity of persons with disabilities 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."
(d) Section 34 of the Act of 2016 :
"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:-(Downloaded on 18/12/2020 at 08:36:42 PM)
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(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:(Downloaded on 18/12/2020 at 08:36:42 PM)
(12 of 26) [CW-104/2020] 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."
(e) Section 58 of the Act of 2016 :-
"58. Procedure for certification.-(1) Any person with specified disability may apply, in such manner as may be prescribed by the Central government, to certifying authority having jurisdiction, for issuing of a certificate of disability.
(2) On receipt of an application under sub-
section (1), the certifying authority shall assess the disability of the concerned person in accordance with relevant guidelines notified under section 56, and shall, after such assessment, as the case may be,-
(a) issue a certificate of disability to such person, in such form as may be prescribed by the Central Government;
(b) inform him in writing that he has no specified disability.
(3) The certificate of disability issued under this section shall be valid across the country.
(f) Rules 35 and 36 of the Rajasthan Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 2011 (hereinafter referred to as "the Rules of 2011") :- (Downloaded on 18/12/2020 at 08:36:42 PM)
(13 of 26) [CW-104/2020] "35. Eligibility.- Notwithstanding anything
contained in any rules or orders for the time being in force regulating the recruitment and conditions of service of persons appointed to the various services or posts in connection with the affairs of every establishment including the Government Department. Persons with Disabilities shall be eligible for appointment to the posts identified for them under rule 36 of these rules provided they fulfill the qualifications laid own in the relevant recruitment or service rules for the posts and are functionally able to perform the duties of the posts of the said services.
36. Reservation for Persons with Disabilities.- In every establishment three percent of the vacancies shall be reserved for persons or class of Persons with Disabilities of which one percent each shall be reserved for persons suffering from;-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) Locomotor disability or cerebral palsy. In the posts identified for each disability by the Government of India under section 32 and such reservation shall be treated as horizontal reservation:
Provided that where the nomenclature of any post in the State Government is different from the post in Government of India or any post in the State Government does not exist in any department of the Government of India, the matter shall be referred to the Committee constituted under rule 38 for identification of the equivalent post in the State Government. The Committee shall identify the equivalent post on (Downloaded on 18/12/2020 at 08:36:42 PM) (14 of 26) [CW-104/2020] the basis of nature of job and responsibility of each post."
(g) Rule 18 of the Rules of 2017 :
"18. Issue of certificate of disability.-(1) On receipt of an application under rule 17, the medical authority or any other notified competent authority shall, verify the information as provided by the applicant and shall assess the disability in terms of the relevant guidelines issued by the Central Government and after satisfying himself that the applicant is a person with disability, issue a certificate of disability in his favour in Form V, VI and VII, as the case may be.
(2) The medical authority shall issue the certificate of disability within a month from the date of receipt of the application.
(3) The medical authority shall, after due examination-
(i) issue a permanent certificate of disability in cases where there are no chances of variation of disability over time in the degree of disability or
(ii) issue a certificate of disability indicating the period of validity, in cases where there is any chance of variation over time in the degree of disability.
(4) If an applicant is found ineligible for issue of certificate of disability, the medical authority shall convey the reasons to him in writing under Form VIII within a period of one month from the date of receipt of the application.
(5) The State Government and Union territory Administration shall ensure that the certificate of disability is granted on online platform from such date as may be notified by the Central Government.(Downloaded on 18/12/2020 at 08:36:42 PM)
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(h) Rule 19 of the Rules of 2017 :
"19. Certificate issued under rule 18 to be generally valid for all purposes.- A person to whom the certificate issued under rule 18 shall be entitled to apply for facilities, concessions and benefits admissible for persons with disabilities under schemes of the Government and of non-
Governmental organizations funded by the Government."
(i) Rule 13 of the Rajasthan Medical & Health Subordinate Service Rules, 1965 (hereinafter referred to as 'the Rules of 1965'):-
"13. Physical Fitness :- A candidate for direct recruitment to the Service must be in good mental or bodily health and free from any mental or physical defect likely to interfere with the efficient performance of his duties as a member of service and if selected must produce a certificate to that effect from a Medical Authority notified by the Government for the purpose. The Appointing Authority may dispense with production of such certificate in the case of candidate promoted in the regular line of promotion, or who is already serving in connection with the affairs of the State if he had already been medically examined for the previous appointment and the essential standards of medical examination of the two posts held by him are to be comparable for efficient performance of duties of new post and his age has not reduced his efficiency for the purpose.
21. Before dwelling upon other issues, it would be better to examine the question as to whether the respondents were (Downloaded on 18/12/2020 at 08:36:42 PM) (16 of 26) [CW-104/2020] justified in subjecting the petitioners and other candidates to medical examination during the process of document verification?
22. A perusal of the subject advertisement dated 18.06.2018, particularly Note-1 appended with Clause-3 stipulates that a person having disability other than OL - one leg will not be eligible/entitled for appointment qua the reserved post. Whereas Note-2 provides that the benefit of reservation shall be available to disabled person only on the basis of opinion of Medical Board constituted/certificate issued by the Department. Note-1 & 2 are reproduced hereunder :
"3- vkj{k.k
uksV%& 1- 40 izfr"kr ;k blls vf/kd One Leg Locomotor (OL)
Disability gksus ij gh fnO;kax vH;fFkZ;ksa ds fy;s vkjf{kr inksa gsrq ik= ekuk tk;sxkA 40 izfr"kr ls de OL Disability gksus ij vius iSr`d oxZ esa lkekU; vH;fFkZ;ksa dh rjg vkosnu dk ik= gksxkA One Leg ds vfrfjDr fdlh vU; izdkj dh fu%"kDrrk gksus ij fo"ks'k ;ksX;tu vH;fFkZ;ksa ds fy;s vkjf{kr inksa ds fo:) fu;qfDr gsrq ik= ugha gksxkA 2- bl foKfIr ds lanHkZ esa foHkkx }kjk xfBr esfMdy cksMZ dh jk;@izek.k i= ds vk/kkj ij gh fo"ks'k ;ksX;tu vH;fFkZ;ksa dks vkj{k.k dk ykHk ns; gksxkA
23. Clause-VIII of para No.13 of the advertisement giving general directions is also to the same effect, which is also being reproduced :
"13- lkekU; funsZ"k %&
(viii) fo"ks'k ;ksX;tu vH;fFkZ;ksa dks bl HkrhZ gsrq foHkkx }kjk xfBr esfMdy cksMZ dh jk;@izek.k i= ds vk/kkj ij gh vkj{k.k dk ykHk ns;
gksxkA ftlds fy;s vH;FkhZ dks foHkkx }kjk vkeaf=r fd;s tkus ij esfMdy cksMZ ds le{k mifLFkr gksuk gksxkA"
24. According to the conditions of the advertisement, the candidates vying for the post reserved for disabled person would be subjected to examination by a Medical Board, if they do not have certificate.(Downloaded on 18/12/2020 at 08:36:42 PM)
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25. A perusal of the conditions of advertisement clearly reveals that the benefit of reservation was available on the basis of opinion of the Medical Board or the certificate. Condition of the advertisement, particularly Clause 13(viii) uses the punctuation :
"/", which means that either of the two namely (i) the certificate or (ii) the opinion of the Medical Board was to be considered for the purpose of grant of reservation.
26. Indisputably, the petitioners had furnished their disability certificate(s) issued by the competent authority alongwith the applications form(s) and had produced the same at the time of document verification. Such being the position, the respondents could not have required the petitioners to undergo the medical examination.
27. In considered opinion of this Court, the medical examination before selection was required to be done only for the candidates, who had applied under disabled/PH category and did not possess the certificate issued by competent authority. But if a candidate was having a certificate issued by competent authority - her examination by Medical Board was not required.
28. Petitioners have approached this Court and raised a grievance that their disability certificates cannot be ignored/over-
looked. Be that as it may, after hearing learned counsel for the parties, on 04.03.2020, the Court directed the Principal, Dr. S.N. Medical College to constitute a Medical Board for examining "petitioners' percentage of disability".
29. A perusal of the order dated 04.03.2020 clearly shows that the Medical Board was required to examine and report exact percentage of petitioners' disability, whereas the members of the (Downloaded on 18/12/2020 at 08:36:42 PM) (18 of 26) [CW-104/2020] Board, instead of giving percentage of disability, have indicated that their percentage of disability is 40% and more. It was incumbent upon the Board to show percentage of disability in each leg but, on the contrary, they have given a sweeping remark that disability is above 40%, but in both the legs.
30. The Medical Board has gone a step ahead and has reported that the petitioners are having disability in their second leg also. That was reported on the basis of strength of their muscle. Matter does not end here they have gone to the extent of reporting that petitioners are not able to discharge the work of Nurse/Female Health Worker. Said part of the report reads thus :-
"izekf.kr fd;k tkrk gS fd vH;FkhZ Jh@lqJh vunq dk "kkjhfjd ijh{k.k djus ds mijkUr ge esfMdy cksMZ ds lnL; bl fu.kZ; ij igaqps gS fd vH;FkhZ dh mDr fnO;kaxrk vH;FkhZ }kjk foKfIr vuqlkj vkosfnr in ds nkf;Roksa dks] ftuesa layXu lwph esa fn;s x;s nkf;Ro lfEefyr gSa] iw.kZ djus esa ck/kd fl) gksxh@ugha gksxh ,oa fnO;kaxrk ds bl izdkj ds lkFk jktLFkku fpfdRlk ,oa LokLF; v/khuLFk lsok fu;e 1965 ds fu;e 13 ds rgr vH;FkhZ vkosfnr in ds nkf;Roksa dks fofHkUu ikfj;ksa esa yxkrkj 8 ?kaVs rd lkekU; :i ls ,oa vkikrdkyhu ifjfLFkfr;ksa esa vko";drkuqlkj lEiUu dj ldsxk@ugha dj ldsxkA ¼tks ykxw u gks mls dkV nsa½ "
31. Hence, evaluation of petitioners by Medical Board, ignoring their disability certificates was per-se illegal and further, the report of the Board constituted pursuant to the order of this Court being faulty and beyond the scope of reference, is liable to be ignored.
32. During the Court proceedings, Dr. Imran Sheikh in unequivocal terms informed that the Board has given the report in the format provided to it by the respondents. It was fairly admitted by him that all the candidates, who appeared before the Board on 18.03.2020, were having at least 40% disability in one of their legs and in addition thereto, had little or more deformity in (Downloaded on 18/12/2020 at 08:36:42 PM) (19 of 26) [CW-104/2020] other leg, for which the Board has given the report dated 18.03.2020 and treated them to be PH- 'BL'.
33. Now, adverting to the basic reason for which the respondents have nixed petitioners' right of being considered as 'OL category' that petitioners are having some impairment in other leg also; this Court is of the considered opinion that such approach is illegal, arbitrary and iniquitous, to say the least.
34. A candidate is entitled to be considered under the PH category for the post of Female Health Worker if she is physically challenged in one leg and such disability is 40% or more. The fact that a candidate is having some problem in other leg or even in other part of the body, does not expel or throw him out of his/her category of 'OL'. The pre-requisite condition for claiming reservation is, that a candidate should have 40% or more disability in one leg.
35. The reservation provides a handicap to a handicapped person, with the help of which he is placed at equal pedestal with other candidates. If a normal human being with some or small deformity or disability cannot be denied appointment, this Court wonders how and why the petitioners can be denied appointment, merely because they have some additional problem or disability.
36. Once a candidate has been found entitled for reservation, his eligibility or entitlement has to be reckoned on such basis. Thereafter, such disability, for which he has been given reservation is required to be ignored. The State is obliged to treat him as a normal candidate and also bound to ignore additional minor rather inconsequential issues/ailments.
37. Petitioners, out of this bunch of petitions, are having minor additional impairment in their other leg. Similar disability may be (Downloaded on 18/12/2020 at 08:36:42 PM) (20 of 26) [CW-104/2020] in other part of the body also, such as upper limb (hand) ear or eye. But such disability by itself cannot be a ground to deny them benefit of reservation, which the framers of law have conferred upon them, as a matter of right, so that they can lead their life with self respect, self esteem and dignity.
38. According to provisions of Rule 13 of the Rules of 1965, all candidates are required to produce a certificate of fitness before joining. The petitioners who are having benchmark disability are also required to produce a certificate of fitness as contemplated under Rule 13 of the Rules. If they are able to perform the duties of the post they have been selected for, and a certificate by the prescribed authority/competent authority is produced, the appointing authority cannot deny them appointment/joining.
39. The respondents cannot throw the petitioners out of the race and refuse to issue them appointment orders without giving them an opportunity to produce a certificate as contemplated under Rule 13 of the Rules.
40. This Court fails to comprehend that how the petitioners - who have been given admission in GNM Course, notwithstanding their physical conditions; who have been selected for contractual employment after taking benefit of reservation; who are having requisite educational qualification and experience of working as Female Health Worker/Nurse with the State, and other private agencies; who have cleared all the practical examinations, can be considered, rather branded as not capable of discharging their duties effectively !
41. Contention of the respondents that the petitioners do not have enough strength in their muscles is absolutely untenable. If the candidates, who have not claimed reservation, have been (Downloaded on 18/12/2020 at 08:36:42 PM) (21 of 26) [CW-104/2020] offered appointment without being subjected to muscle strength test, there can be no reason to test petitioners' muscle strength and non-suit them on such count.
42. All the petitioners before this Court are having 40% or more impairment/disability in one of their legs. A person who is having impairment to the extent of 40% or more, is bound to have over- bearing impact on his other leg also. Naturally, because of more use of other leg or due to shifting of more body weight on stronger leg. This natural consequence should not lead to more adversities, than the nature has already posed to them.
43. Rule 35 of the Rules of 2011 clothes a Person with Disability, with an eligibility to hold post identified by the State Government. Rule 35, which begins with a non- obstante clause. At the same time, Rule 36 not only insulates but also provides a pole to a person suffering from the designated disability so that he can vault the social and emotional barrier and land on a level playing field and compete with his more fortunate counter parts.
44. Rule 35 of the Rules of 2011 has been enacted to eclipse the effect of the service rules relating to physical fitness such as Rule 13 in the Rules of 1965, in the manner that if a person is suffering from the disability enumerated in Rule 36 of the Rules of 2011, irrespective of being physically unfit, he/she is to be offered appointment on the earmarked posts.
45. But at the same time, it cannot be said as a natural corollary, that a person with further disability in other leg or other body part is unfit to be appointed on the post of Female Health Worker.
46. A person with impairment in one leg (OL) has been notified to be appointed for the post of Female Health Worker, as required by Rule 36. It means that 3% seats are required to be reserved (Downloaded on 18/12/2020 at 08:36:42 PM) (22 of 26) [CW-104/2020] for persons with impairment in one leg. It is pertinent that such reservation is available only to persons having disability to the extent of 40% or more. Consequent to the provisions contained in Rule 35, no one can say that a person with 40% or more disability in one leg is not fit to perform a work of a Female Health Worker.
47. In case of Rekha Meena Vs. State of Raj. & Ors., reported in 2020(2)RLW1212 (Raj.), this Court had made certain observations in para Nos.36 to 45, which can be gainfully quoted hereunder :-
"36. It is pertinent to note that the Act of 1995; the Act of 2016; so also the Rules of 2011 have been enacted with a view to not only provide equal opportunities, but also to ensure full participation of the person having physical or mental challenges. The provisions of the Act and Rules of 2011 are beneficial and reformative in nature and thus, even in a case of ambiguity, an endeavor should be made to harmonize the provisions to achieve the object for which they were enacted.
37. The nature has already been unkind and unjust to the petitioner. The State cannot add salt to her injury by denying her legitimate right and make her think the worst, that alas her disability was 16% more, so that she could at least claim reservation, if not equality. In an egalitarian society like ours, such regressive approach of the State cannot be tolerated on the touchstone of our Constitutional framework.
38. This Court is at pains to record that the provisions which have been enacted to provide crutch* to one class of disabled, have been used to crush another class.
39. The State cannot be oblivious of Rule 56 of the Rules of 2011, which enjoins upon it to give employment to disabled person. Rule 56 of the Rules reads thus:
"Employment/Training - Disabled persons shall be given employment/training commensurate as per their ability."
40. In the present era, where the parliament has enacted the Rights of Persons with Disabilities Act, 2016 - an Act to give effect to United Nations Convention on the Right of Persons with Disabilities and matter connected therewith or incidental thereto, while keeping in mind the avowed object of empowering Persons with Disabilities, the impugned action of the respondents turns (Downloaded on 18/12/2020 at 08:36:42 PM) (23 of 26) [CW-104/2020] out to be wholly unsustainable, against human rights and emerges as inhumane, to say the least.
41. It will be apt to be reminded of some of the salutary provisions of the Act of 2016, which are being reproduced hereinbelow:
"2(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."
"3(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.
(2) The appropriate Government shall take steps to utilise the capacity of persons with disabilities 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."
"4 (1) The appropriate Government and the local authorities shall take measures to ensure that the women and children with disabilities enjoy their rights equally with others.
(2) The appropriate Government and local authorities shall ensure that all children with disabilities shall have right on an equal basis to freely express their views on all matters affecting them and provide them appropriate support keeping in view their age and disability."
42. A combined reading of above provisions, particularly the highlighted part(s), reveals that the Act of 2016 casts a duty upon the appropriate Government, which, in the present case is the State Government, to ensure that Persons with Disability are not discriminated against.
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43. In this regard a look at Rule 13 of the Rules of 1965 shows that so far as physical fitness is concerned, the same is required to be ascertained only after a candidate is selected, whereas the respondents have put the petitioner to medical test, inspite of the fact that she had not claimed any reservation as a disabled person. Such action/act amounts to discrimination and the same is violative of not only Sections 3(3) of the Act of 2016, but also infringes Article 14 and 21 of the Constitution of India guaranteed to the petitioner.
44. Expanse of right to life guaranteed under Article 21 of the Constitution of India has been held to be wide enough to include within its lap, right to live with dignity.
45. Rejection of petitioner's candidature, consequent to her physical challenge in her arm amounts to denial of fair opportunity to public employment; thus, the same is violative of Section 4 of the Act of 2016 also, which adjures or requires the State Government to take all measure to ensure that the women and children with disabilities enjoy equal rights."
48. Reference of the judgment of Varsha Narwani Vs. State of Rajasthan & Ors : SB Civil Writ Petition No.13034/2018, decided by Coordinate Bench of this Court on 14.05.2019, may also be relevant, facts of which case are more or less identical to the cases in hands.
49. In the case of Varsha Narwani (supra), the petitioner having 40% visual impairment, applied for the post of Assistant Radiographer; while such post was reserved for OL and HI. The petitioner having applied under general category though found place in merit list, but was denied appointment. She approached the Court by way of a writ petition, which was allowed by holding that the respondents have wrongly rejected her candidature. A Medical Board was ordered to be constituted to submit a report regarding her fitness to perform duties of a Radiographer. Report (Downloaded on 18/12/2020 at 08:36:42 PM) (25 of 26) [CW-104/2020] was favourable to the petitioner and so was the decision of this Court.
50. Rejection of petitioners' candidature, on account of their minor additional physical challenge amounts to denial of fair opportunity in public employment. The same is, thus, violative of Section 4 of the Act of 2016, which adjures or requires the State Government to take all measures to ensure that the women and children with disabilities enjoy equal rights. Impunged decision of the respondents is clearly violative of Article 14 of the Constitution of India, which enjoins upon the State to treat all citizens with equality and fairly.
51. As an upshot of the discussion and enunciation foregoing, these writ petitions are allowed, holding that the respondents were not justified in subjecting the petitioners to medical examination. It is also held that respondents were not justified in rejecting petitioners' candidature treating them to be from other PH Category - (BL), simply because they have additional deformity in their second leg also.
52. Though, the Medical Board has reported that Ms Priyanka Rao (petitioner in SBCWP No.1566/2020) has disability less than 40%, but since the medical report(s) have been discarded and the petitioner is having 42% disability as per her disability certificate issued by the competent authority, she is also held entitled for reservation given for the PH OL category.
53. The petitioners shall appear in the Office of respondent No.2 on 28th December, 2020 at 11 am. Respondent No.2 or his nominee shall examine petitioners' original disability certificate(s) (Downloaded on 18/12/2020 at 08:36:42 PM) (26 of 26) [CW-104/2020] and if their respective certificates show them to be having 40% or more disability in one leg, they shall be treated eligible.
54. The respondents shall, thereafter, prepare fresh select list for PH category and place the eligible petitioners (after verification of documents) at appropriate place in the select list, of course in their own category.
55. Appointment orders be issued latest by 31st of January, 2021.
56. The petitioners shall produce a certificate of fitness issued by a competent Medical Authority notified by the Government for this purpose. The certificate should clearly indicate that petitioners' physical difficulty is not likely to interfere with the efficient performance of their duties as Female Health Worker, as stipulated in Rule 13 of the Rules of 1965. The competent authority shall not be influenced by the medical reports, which have been annulled/discarded by this Court and record his independent finding on his own assessment.
57. Stay petitions too stand disposed of accordingly."
(DINESH MEHTA),J ArunV/-(m-3, 8, 9, 10, 12 & 14) (Downloaded on 18/12/2020 at 08:36:42 PM) Powered by TCPDF (www.tcpdf.org)