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Showing contexts for: Muscular Dystrophy in Shivsankar Karunasankar Pandya vs State Of Gujarat on 7 June, 2021Matching Fragments
4. The brief facts of the case are that the petitioner is suffering from muscular dystrophy and is claiming rights of reservation for employment in category of persons with physical disabilities.
5. Respondent No.3 issued an advertisement inviting applications for appointment on 175 posts of Talati-cum-Mantri [Gram Panchayat, Secretary]. Out of the said 175 posts advertised by the respondent-authorities, 3% posts are reserved for the physically handicapped category candidates as per the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [for short 'the Act, 1995']. The petitioner being physically disabled person with locomotor disability applied for the post of Talati-cum-Mantri pursuant to the aforesaid advertisement dated 24.11.2016 along with disability certificate issued to the petitioner by the Health and Family Welfare Department, Government of Gujarat.
11. Learned advocate Mr. Vaibhav Vyas submitted that in the Act of 1995, muscular dystrophy is not specifically stated C/SCA/8580/2017 JUDGMENT DATED: 07/06/2021 as disease for physical disability. However, such disease is part of locomotor disability by which, the petitioner has difficulty of movement. Learned advocate Mr. Vyas submitted that in the Rights of Person with Disabilities Act, 2016, section 34(1)(c) refers to locomotor disability which includes muscular dystrophy. It was therefore submitted that in the Act, 1995 which was prevailing at the time when the advertisement was issued, only the locomotor disability is stated whereas in the Act of 2016, it is further explained as the Legislature has thought it fit to have inclusive definition of locomotor disability which includes muscular dystrophy. It was therefore, submitted that as the petitioner is having muscular dystrophy of more than 50%, he is suffering from locomotor disability and therefore, would be governed by the physical disability as prescribed under the Act, 1995.
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 C/SCA/8580/2017 JUDGMENT DATED: 07/06/2021 specified in such notifications exempt any Government establishment from the provisions of this section."
19. The above provision of sub-section (1) of section 34 provides that the locomotor disability includes the celebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy. Thus, locomotor disability is a wider term which is now specifically includes muscular dystrophy under the Act, 2016. As per sub-clause (0) of section 2, locomotor disability is defined in the Act, 1995 which reads as under:
"(o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy;"
20. Thus, "locomotor disability" means disability of the bones, joints and muscles leading to substantial restriction of the movement of the limbs or any form of celebral palsy. Whereas, in the Act, 2016, locomotor disability is not defined but the same includes as per clause (c) of sub-section (1) of section 34 of Act, 2016 categories of cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy. Thus in the Act, 1995 muscular dystrophy disability is having wide meaning as defined in clause (o) of section 2. It is pertinent to note that though muscular dystrophy disability is not specifically mentioned in Act, 1995, the same is included in locomotor disability under clause (c) of section 34(1) of the Act, 2016.