The Bombay High Court allowed a writ petition challenging the judgment dated 14-7-2022 rendered by the learned Administrative Tribunal whereby it had found that the petitioner was rightly refused appointment and dismissed the original application.
The Court observed that the subject advertisement makes no reference to the Government Resolution dated 27-2-2009 nor is it specified in the subject advertisement that the posts shall be reserved for a particular disability.
Brief Facts:
On 20-2-2019 the Deputy Director, Health Services, Nagpur Division, Nagpur published an online advertisement to fill the post of Medical Staff (Class-III) in the State of Maharashtra. The online advertisement provided that seven posts are reserved for the disabled. The petitioner responded to the online advertisement since she was qualified and eligible and was possessing the requisite Disability Certificate. She appeared for the written examination and on 28-4-2021, she received communication informing her that the select list is published online and, in that regard, the petitioner may appear for verification of documents on 04-5-2021.
On 14-5-2021, the Deputy Director of Health Services informed the District Orthopedic Officer, General Hospital, Chandrapur conveying that the petitioner was selected for the post of Staff Nurse Private (50%) (SC) from the Disabled Category and that her documents were verified on 04-5-2021. On 22-6-2021, the petitioner received communication from the Deputy Director, Health Services which inter alia conveyed that in view of the Government Resolution dated 27-2-2009, the post of Staff Nurse Private (50%) is reserved for candidates who have a physical impairment and not hearing impairment and the petitioner is declared not eligible for appointment.
The Petitioner made representations, which went unheard. Petitioner went to MAT which also accepted the argument of the respondents. Hence, this petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner reiterated the submissions which did not find favor with the MAT.
Contentions of the Respondent:
The Learned Counsel for the Respondent supported the judgment of the MAT placing reliance on Government Resolution dated 27-2-2009.
Observations of the Court
The Court observed that the claim of the petitioner is unjustly rejected and that the MAT fell in error in dismissing the original application. It noted that having identified posts in the establishment that can be reserved for persons with disability, the appropriate Government is obligated to review, at periodical intervals not exceeding three years the list of posts identified and update the list taking into consideration the developments in technology.
Further, the Court remarked that the reliance placed on the Government Resolution dated 27-2-2009 is clearly misplaced. The subject advertisement made no reference to the Government Resolution dated 27-2-2009 nor is it specified in the subject advertisement, in contradiction with the advertisements issued for filling in vacancies in certain divisions other than Nagpur Division, that the posts shall be reserved for a particular disability. This is because the statutory scheme of Section 32 of the Act 1 of 1996 and Section 33 of the Act of 2016 is vastly different, inasmuch as while Act 1 of 1996 empowers the State Government to identify the posts, the Act of 2016 entrusts the task of identification of posts to an expert committee with representation of persons with benchmark disabilities for identification of such posts.
Considering the schematic difference between the provisions of Act 1 of 1996 and the Act of 2016, the Government Resolution dated 27-2-2009 cannot be deemed to have been issued under a corresponding provision of the Act of 2016.
The decision of the Court:
The Bombay High Court, allowing the petition, held that the petitioner is entitled to be appointed as Staff Nurse Private (50%) (Group-C) with effect from the date on which the other candidates in the recruitment process are issued appointment orders.
Case Title: Ku. Sonal d/o Namdeo Meshram vs The State of Maharashtra & Anr.
Coram: Hon’ble Justice Rohit B. Deo and Hon’ble Justice Vrushali V. Joshi
Case no.: WRIT PETITION NO. 8509 OF 2022
Advocate for the Petitioner: Mr. P.S. Sahare
Advocate for the Respondents: Mr. M.K. Pathan
Read Judgment @LatestLaws.com
Picture Source :
