Gauhati High Court
Page No.# 1/2 vs Ankush Saikia And Anr on 1 May, 2025
Page No.# 1/20
GAHC010105382024
2025:GAU-AS:5338-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/194/2024
OIL AND NATURAL GAS CORPORATION LTD. AND 3 ORS.
REPRESENTED BY ITS CHAIRMAN AND CEO, PLOT NO- 5A-5B, NELSON
MANDELA ROAD, VASANT KUNJ, NEW DELHI-110070
2: THE GENERAL MANAGER (HR) - INCHARGE
CORPORATE RECRUITMENT ONGC
GREEN HILLS TEL BHAVAN DEHRADUN UTTARAKHAND PIN-248003
3: CHIEF MANAGER (HR) RECRUITMENT AND PROMOTION SECTION
ASSAM ASSET ROB-III SECOND FLOOR NAZIRA
DIST- SIVASAGAR PIN-785685
4: MEDICAL OFFICER ONGC HOSPITAL
SIVASAGAR ONGC COLONY
DIST- SIVASAGAR
PIN-78569
VERSUS
ANKUSH SAIKIA AND ANR.
S/O- JITEN SAIKIA, VILL- BHUYAN GAON, P.O AND P.S- AMGURI, DIST-
SIVASAGAR, ASSAM, PIN-785680
2:THE CHAIRMAN
DISTRICT DISABILITY BOARD
SIVASAGAR DIST- SIVASAGAR
PIN-78569
Advocate for the Petitioner : MR. B K DAS, H P NEOG,MR H P GUWALA
Advocate for the Respondent : SC, HEALTH AND F W, FOR CAVEATOR,MR. R BORO,MR. C
BORUAH
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BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of hearing : 24.04.2025
Date of Judgment & Order : 01.05.2025
JUDGMENT & ORDER (CAV)
(N. Unni Krishnan Nair, J.)
Heard Mr. Indraneel Chowdhury, learned senior counsel, assisted by
Mr. B. K. Das, learned counsel, appearing on behalf of the appellants,
herein. Also heard Mr. C. Boruah, learned counsel, appearing on behalf of
respondent No. 1; and Mr. D. Upamanyu, learned counsel, appearing on
behalf of respondent No. 2.
2. The present intra-Court appeal has been instituted by the appellants,
herein, assailing the order, dated 23.04.2024, passed by the learned Single
Judge in WP(c)3832/2023, allowing the same, by directing the appellants,
herein, to appoint the respondent No. 1/writ petitioner against the post of
Junior Technician(Diesel) under the disability category upto 25.10.2025, i.e.
upto the date of validity of the temporary disability certificate issued to
him.
3. The brief facts requisite for adjudication of the issue arising in the
present proceeding, is noticed as under:
The appellants, herein, had issued an advertisement, being
advertisement No. 2/2022(R&P), inviting applications for recruitment,
amongst others, against 9(nine) posts of Junior Technician(Diesel). Out of
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the said 9(nine) posts of Junior Technician(Diesel) advertised, 2(two) posts
were reserved for persons with benchmark disability.
The respondent No. 1, herein, who fulfilled the requisite eligibility
criteria for recruitment against the post of Junior Technician(Diesel), had
submitted his application in pursuance of the said advertisement. The
respondent No. 1, had applied pursuant to the said advertisement for the
said post of Junior Technician(Diesel) against the posts so earmarked for
persons with benchmark disability. The respondent No. 1, in support of his
disability, had placed reliance on a disability certificate issued by the
competent medical authority, Sivasagar, dated 25.05.2022. The respondent
No. 1, in the said certificate, dated 25.05.2022, was certified to be
suffering from hearing impairment and the percentage of his disability was
denoted as 55%. However, the said certificate, dated 25.05.2022, had also
certified the respondent No. 1 to be suffering from a temporary disability
and the said certificate was recommended only for a period of 3 years and
5 months. The said disability certificate, dated 25.05.2022, issued to the
respondent No. 1, was to remain valid till 25.10.2025.
In pursuance of the said application, the respondent No. 1, herein,
was permitted to appear in the selection process and on conclusion of the
selection process, the respondent No. 1 being qualified, therein, against the
post of Junior Technician(Diesel) reserved for persons with disabilities; the
appellants, herein, issued an offer of appointment, dated 16.05.2023, to
the respondent No. 1, herein.
In terms of the conditions set-out in the said offer of appointment,
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dated 16.05.2023; the respondent No. 1, herein, was required to submit all
his original qualification documents including the Persons with Disabilities
certificate in the prescribed format. The respondent No. 1 was also
required to appear before the medical authority of the appellants, herein,
for his medical examination. The respondent No. 1, accordingly, underwent
the medical examination and the medical authority on examining the
respondent No. 1, had concluded that the respondent No. 1 was suffering
from a temporary disability and accordingly, he was not entitled to be
appointed against the post of Junior Technician(Diesel) for which an offer of
appointment was issued to him on 16.05.2023.
The respondent No. 1, thereafter, vide an e-mail, dated 16.05.2023,
approached the appellants, herein, praying for grant of time for submission
of a permanent disability certificate as per the prevailing guidelines, in the
prescribed format. The said mail was responded to by the appellants,
herein, vide an e-mail, dated 21.06.2023, wherein, the respondent No. 1
was directed to produce the permanent disability certificate in the
prescribed format on or before 29.06.2023. It was further stipulated
therein that in the event, the respondent No.1, herein, fails to produce the
permanent disability certificate by 29.06.2023, the offer of appointment,
dated 16.05.2023, shall automatically without any further reference, stand
cancelled.
The materials brought on record would go to reveal that the
respondent No. 1, herein, had failed to obtain a permanent disability
certificate and accordingly, in view of the stipulations made by the
appellants, herein, in its e-mail, dated 21.06.2023; the offer of
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appointment to the respondent No. 1, herein, against the post of Junior
Technician(Diesel) under the disability category, stood cancelled, after
29.06.2023.
Being aggrieved, the respondent No. 1, herein, approached the writ
Court by way of instituting a writ petition being WP(c)3832/2023, inter alia,
praying for a direction to the appellants, herein, to appoint him as Junior
Technician (Diesel) against the post of Junior Technician(Diesel) reserved
for persons with benchmark disability.
The aforesaid writ petition i.e. WP(c)3832/2023, was contested by the
appellants, herein, who had contended before the learned Single Judge that
it would not be permissible to appoint the respondent No. 1, herein, against
the post of Junior Technician(Diesel) reserved for persons with benchmark
disability by reckoning the temporary disability certificate, dated
22.05.2022, possessed by him.
The learned Single Judge upon considering the materials brought on
record and after hearing the learned counsels appearing for the parties to
the proceeding, was pleased vide order, dated 23.04.2024, to allow the said
writ petition being WP(c)3832/2023, by directing the appellants, herein, to
reckon the temporary disability certificate produced by the respondent No.
1 and to appoint him against the post of Junior Technician(Diesel) under
the disability category upto 25.10.2025, i.e. the date of validity of the
temporary disability certificate of the respondent No. 1, herein. The learned
Single Judge further provided that on expiry of the validity period of the
temporary disability certificate possessed by the respondent No. 1, he shall
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undergo the required medical test before the competent authority and if it
was found that his degree of disability had gone down below the
benchmark of 40%, the appellants, herein, were at liberty to terminate the
service of the respondent No. 1, without any notice. The learned Single
Judge had also provided that in the event, the respondent No. 1 was found
to be having a permanent disability, he shall be allowed to continue.
It is to be noted that in paragraph No. 12 of the order, dated
23.04.2024, passed by the learned Single Judge in WP(c)3832/2023, an
error had occasioned in recording the date of the validity of the temporary
disability certificate possessed by the respondent No. 1, and the date,
therein, was recorded as "25.20.2025". The respondent No. 1 filed an
interlocutory application being IA(c)1236/2024, praying for correction of
the said typographical error. Accordingly, the learned Single Judge vide
order, dated 01.05.2024, corrected the date of the validity of the temporary
disability certificate possessed by the respondent No. 1, herein, as
"25.10.2025".
4. The order, dated 23.04.2024, passed by the learned Single Judge in
WP(c)3832/2023, being under challenge in the present proceeding; the
operative portion, thereof, is extracted hereinbelow:
"10. In the present case in hand, it is undisputed that the Temporary Disability
Certificate issued to the petitioner which is valid up to 25.10.2025 has been issued by
the Competent Board. This Court has also considered the medical report of the
petitioner made by the Medical Officer of ONGC and in the said report it is also clearly
stated that there is impairment in the left ear and both the right ear and left ear are
defective.
11. Considering that the petitioner is holding a Temporary Disability Certificate,
this Court does not see any reason as to why the ONGC authorities should refrain
themselves from giving appointment to the petitioner only on the ground that he is
holding a Temporary Disability Certificate and more particularly when he has
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successfully passed the recruitment process.
12. After examining the balance of convenience and in the interest of justice, the
ONGC authorities are directed to issue appointment order to the petitioner to the post
of Junior Technicians (Diesel) under the disability category up to 25.20.2025, i.e., the
date of validity of the Temporary Disability Certificate of the petitioner. This Court
makes it clear that this shall not be a precedent in future for other cases. It is further
made clear that after the expiry of the validity period of the Temporary Disability
Certificate of the petitioner, he shall undergo the required medical tests before the
Competent Board and if it is found that his degree of disability has gone down below
the bench mark of 40%, the ONGC authorities are giving liberty to terminate the
service of the petitioner without any notice. However, in the event that he is found to
be having a permanent disability, he shall be allowed to continue.
13. It is made clear that the appointment of the petitioner should be given at the
earliest but not later than 2(two) months from today."
5. Assailing the order, dated 23.04.2024, passed by the learned Single
Judge in WP(c)3832/2023; Mr. Chowdhury, learned senior counsel,
appearing for the appellants, herein, at the outset, has submitted that the
respondent No. 1, herein, cannot be offered an appointment against the
post of Junior Technician(Diesel) by reckoning him to be a person with
benchmark disability, in-as-much as, the respondent No. 1 only possess a
temporary disability certificate.
6. Mr. Chowhdury, learned senior counsel, by referring to the provisions
of Section 2(s) of the Rights of Persons with Disabilities Act, 2016, has
submitted that a "person with disability" means a person having long term
physical, mental, intellectual or sensory impairment which, in interaction
with barriers, hinders his full and effective participation in society equally
with others.
7. Mr. Chowdhury, learned senior counsel, by referring to the cause for
the hearing impairment suffered by the respondent No. 1, herein, has
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submitted that the respondent No. 1 is suffering from "Chronic Suppurative
Otitis Media (CSOM) with Mastoiditis of both ears", which is a chronic
infection of the middle ear. The learned senior counsel has further
submitted that a perusal of the medical opinion available on record, would
go to reveal that the said ailment suffered by the respondent No. 1, herein,
can be cured by Modified Radical Mastoidectomy operation and his hearing
would get better.
8. Mr. Chowdhury, learned senior counsel, by referring to the directions
passed by this Court vide order, dated 24.06.2024, in the present
proceeding, has submitted that this Court had required the competent
authority to examine the respondent No. 1, herein, afresh, for the purpose
of issuance of permanent disability certificate to him. The learned senior
counsel has submitted that in pursuance of the said directions passed by
this Court vide order, dated 24.06.2024; the competent medical authority
of the Government of Assam had examined the respondent No. 1, herein,
on 11.07.2024, and on such examination, the District Disability Board,
Sivasagar, had found the respondent No. 1 to be suffering from "Chronic
Suppurative Otitis Media (CSOM) with Mastoiditis of both ears", which is a
chronic infection of the middle ear. Further, on examining the extent of
disability of the respondent No. 1, herein, the District Disability Board,
Sivasagar, had opined that the respondent No. 1 was suffering from 51%
disability.
9. Mr. Chowdhury, learned senior counsel, has submitted that in the
temporary disability certificate issued to the respondent No. 1, on
22.05.2022, his disability was quantified at 55%. However, during the
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examination of the respondent No. 1 by the District Disability Board,
Sivasagar, in response to the directions of this Court, vide order, dated
24.06.2024; his disability was found to have improved upto 51%.
Accordingly, the learned senior counsel has submitted that the disability
suffered by the respondent No. 1 being a temporary one with a scope for
improvement after due and proper treatment; the said disability suffered
by the respondent No. 1 would not qualify him to be treated as a person
entitled to be extended with an appointment against the post reserved for
persons with benchmark disability.
10. Mr. Chowdhury, learned senior counsel, by referring to the order,
dated 23.04.2024, passed by the learned Single Judge in WP(c)3832/2023,
has submitted that the learned Single Judge only by reckoning the
temporary disability certificate possessed by the respondent No. 1, had
proceeded to direct for his appointment against the post of Junior
Technician(Diesel). However, while proceeding to pass the said direction,
the learned Single Judge had not reckoned the fact that such extension of
appointment in favour of the respondent No. 1, herein, would have the
effect of denying the appointment to a person who is suffering from
permanent hearing impairment and such a course of action, if adopted,
would go against the provisions of the Rights of Persons with Disabilities
Act, 2016.
11. Mr. Chowdhury, learned senior counsel, has submitted that although
the learned Single Judge in the impugned order, dated 23.04.2024, in
WP(c)3832/2023, had held that the same would not be a precedent in
future for further cases; other candidates who also possess a temporary
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disability certificate, had already in pursuance of the said order, dated
23.04.2024; staked their claim for being considered for temporary
appointment.
12. In support of the stand taken by the appellants, herein, in the matter,
Mr. Chowdhury, learned senior counsel, has relied upon a communication,
dated 24.12.2021, issued by the Ministry of Social Justice & Empowerment,
Department of Empowerment of Persons with Disabilities(DIBYANGAN),
Government of India. The learned senior counsel has submitted that in
terms of the contentions contained therein, in case of temporary disability
certificates, there being a likelihood that the percentage of disability may
reduce below 40%, it was held by the authorities that it would not be
appropriate to extend the benefit of reservation to candidates having
temporary disability certificates.
13. In the above premises, Mr. Chowdhury, learned senior counsel
appearing for the appellants, herein, has submitted that impugned order,
dated 23.04.2024, passed by the learned Single Judge in WP(c)3832/2023,
would be called to be interfered with, failing which, it was contended that it
would cause prejudice to persons suffering from permanent disability.
14. Per contra, Mr. Boruah, learned counsel appearing for the respondent
No. 1, herein, has submitted that it is not disputed that the respondent No.
1 suffers from hearing impairment and the temporary disability certificate
as issued to him, was so issued in terms of the provisions of Rule 18(3)(ii)
of the Rights of Persons with Disabilities Rules, 2017. The learned counsel
has further submitted that the temporary disability certificate being one of
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the certificates mandated to be issued certifying the disability of a person
by the competent authority; the learned Single Judge had not committed
any error in requiring the appellants, herein, to appoint the respondent No.
1 against the Junior Technician (Diesel) in terms of the offer of appointment
made to him on 15.06.2023.
15. Mr. Boruah, learned counsel, has submitted that the respondent No.
1, had undergone treatment for the hearing impairment suffered by him.
However, the treatments undergone by the respondent No. 1 had not
resulted in any improvement of his hearing and accordingly, the learned
counsel has submitted that the respondent No. 1 was entitled to be issued,
a permanent disability certificate which has not been issued to him by the
competent authority for reasons not known.
16. Mr. Boruah, learned counsel, has disputed the conclusions reached by
the District Disability Board, Sivasagar, which had examined the respondent
No. 1 on 11.07.2024, in pursuance of the directions passed by this Court in
the present proceeding vide order, dated 24.06.2024, and he has further
submitted that the opinion of the said Board as well as the determination of
the disability suffered by the respondent No. 1, herein, at 51%, as was so
made without any basis, whatsoever, and the same would be required to be
discarded by this Court.
17. Mr. Boruah, learned counsel, has submitted that the learned Single
Judge had only directed the appellants, herein, to appoint the respondent
No. 1, herein, against the post of Junior Technician(Diesel) by reckoning the
temporary disability certificate possessed by him till the period of its
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validity till 25.10.2025, with further direction that on expiry of the validity
period of the temporary disability certificate possessed by the respondent
No. 1; he would be required to undergo the required medical test before
the competent medical authority for determining whether the degree of
disability suffered by the respondent No. 1 had gone below the benchmark
of 40%. The learned counsel has highlighted that in the event, on such
examination, if the degree of disability of respondent No. 1 had gone below
40%; the learned Single Judge had provided that the appellants, herein,
would be at liberty to terminate the service of the respondent No. 1 without
further notice. Accordingly, it is submitted by the learned counsel that no
prejudice was caused to the appellants, herein, in the matter.
18. Mr. Boruah, learned counsel, has further submitted that given the
nature of ailment suffered by the respondent No. 1 leading to his hearing
impairment, there exists no scope for improvement in hearing of the
respondent No. 1 and accordingly, even if the medical examination is so
conducted in the matter in respect of the respondent No. 1, herein, after
25.10.2025, i.e. after the validity period of the temporary disability
certificate issued to him, is over; the degree of disability suffered by the
respondent No. 1 would not go below the benchmark of 40%.
19. In the above premises, Mr. Boruah, learned counsel for the
respondent No. 1, has submitted that this Court would be pleased to
uphold the directions passed by the learned Single Judge vide order, dated
23.04.2024, in WP(c)3832/2023, and provide an avenue of employment to
the respondent No. 1, who is undoubtedly, a person with benchmark
disability.
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20. We have heard the learned counsels appearing for the parties and
also perused the materials available on record.
21. The facts, as noticed hereinabove, leading to the issuance of the offer
of appointment to the respondent No. 1, dated 16.05.2023, to the post of
Junior Technician(Diesel) against the category reserved for persons with
benchmark disability; is not disputed and accordingly, the same is not
reiterated herein.
22. The respondent No. 1, herein, had applied for the post of Junior
Technician(Diesel) in pursuance of the advertisement No. 2/2022(R&P) by
projecting himself to be a person with disability. In support of his such
claim, the respondent No. 1 had relied upon a certificate issued to him by
the District Disability Board, Sivasagar, dated 25.05.2022. However, a
perusal of the said certificate, dated 25.05.2022, would go to reveal that
while the respondent No. 1 was held to be suffering from hearing
impairment, the degree of such disability was quantified at 55%. The said
certificate also held that the disability suffered by the respondent No. 1 was
temporary in nature and accordingly, the said certificate, dated
25.05.2022, was recommended for a period of 3 years and 5 months only.
The validity of the said certificate was to the extent till 25.10.2025. The
respondent No. 1, herein, was offered appointment against the post of
Junior Technician (Diesel) vide communication, dated 16.05.2023, and in
terms of the conditions, thereof, he was to provide the originals of all the
certificates, including the disability certificate, in addition to undergoing the
medical examination to be conducted by the Doctors of the appellants,
herein. The respondent No. 1, herein, underwent the medical examination
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and the examining Doctor had concluded that the hearing impairment
suffered by the respondent No. 1, herein, was temporary in nature and
accordingly, he was held to be not entitled to be appointed against the post
of Junior Technician (Diesel) under the quota reserved for persons with
benchmark disability.
23. Accordingly, the appellants, herein, did not allow the respondent No.
1 to join against the post of Junior Technician (Diesel). The respondent No.
1, had, thereafter, vide an e-mail, dated 16.05.2023, requested the
appellants, herein, to grant to him an opportunity to produce the
permanent disability certificate. In response to the same, the appellants,
herein, vide an e-mail, dated 21.06.2023, afforded an opportunity to the
respondent No. 1 to produce the permanent disability certificate latest by
29.06.2023. It was further stipulated in the said e-mail, dated 21.06.2023,
that in the event, the permanent disability certificate is not produced by the
respondent No. 1 on or before 29.06.2023, the offer of appointment, dated
16.05.2023, shall automatically, without any further reference, stand
cancelled.
24. The respondent No. 1, herein, had not produced the permanent
disability certificate within the extended period of time as granted to him by
the appellants, herein. The respondent No. 1, had, thereafter, approached
the writ Court by way of instituting a writ petition being WP(c)3832/2023,
assailing the e-mail, dated 21.06.2023, with a further direction to the
appellants, herein, to appoint him against the post of Junior
Technician(Diesel) reserved for persons with benchmark disability. The
respondent No. 1, admittedly, possesses only a temporary disability
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certificate and the validity of the same, would come to an end on
25.10.2025.
25. Noticing the facts arising in the present proceeding, this Court vide
order, dated 24.06.2024, had directed the respondent No. 1, herein, to
appear before the competent authority for carrying-out an examination
with regard to the disability suffered by him for the purpose of issuing to
him, a permanent disability certificate. In terms of the said directions
passed by this Court vide order, dated 24.06.2024, the respondent No. 1,
herein, had appeared before the District Disability Board, Sivasagar, on
11.07.2024. The District Disability Board, Sivasagar, on examination of the
respondent No. 1, herein, had come to a conclusion that the respondent
No. 1 was suffering from "Chronic Suppurative Otitis Media (CSOM) with
Mastoiditis of both ears", which is a chronic infection of the middle ear.
Further, on the basis of the examination of the hearing impairment of the
respondent No. 1, herein; the District Disability Board, Sivasagar, had
determined that he was suffering from 51% disability. The concerned
Board, accordingly, opined that the respondent No. 1, herein, was not
eligible to be issued with a permanent disability certificate and he was only
entitled to be issued with a temporary disability certificate.
26. The recruitment, in question, as initiated vide advertisement No.
2/2022(R&P), had reserved 2(two) posts out of the 9(nine) posts of Junior
Technician(Diesel) put up for recruitment, to be filled up by persons with
benchmark disability. Although Section 2(r) of the Rights of Persons with
Disabilities Act, 2016, defines "person with benchmark disability" to mean a
person with not less than forty per cent, however, Section 2(s) of the said
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Act of 2016, defines a "person with disability" to mean 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.
27. The competent medical authority while issuing the temporary
disability certificate to the respondent No. 1, herein, had specified that the
same would be valid only for a period of 3 years and 5 months i.e. till
25.10.2025. The limited period of validity as assigned to the temporary
disability certificate issued to the respondent No. 1, herein, would go to
reveal that the respondent No. 1 cannot be brought within the meaning of
a "person with disability" in terms of the definition as provided for the same
under the provisions of Section 2(s) of the Rights of Persons with
Disabilities Act, 2016.
28. Further, what is to be noticed is that the examination of the
respondent No. 1, herein, carried-out by the District Disability Board,
Sivasagar, on 11.07.2024, would go to reveal that the degree of disability
suffered by the respondent No. 1, had improved from 55% as it stood on
25.05.2022, to 51%, on 11.07.2024. Accordingly, the contention raised by
the authorities of the District Disability Board, Sivasagar, as well as by the
appellants, herein, in the present proceeding, to the effect that the hearing
impairment suffered by the respondent No. 1, herein, is temporary in
nature and can be improved on being properly treated; cannot be said to
be erroneous.
29. The Ministry of Social Justice & Empowerment, Government of India,
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vide communication, dated 24.12.2021, in response to a clarification
sought for in the matter by the appellants, herein, with regard to the offer
of appointment to posts under the Government of India and Central
Government Public Sector Undertakings to persons with temporary
disabilities, had stipulated that in cases where a person has been issued
with a temporary disability certificate, there being a likelihood that the
percentage of disability may reduce below the benchmark of 40%, it would
not be appropriate to extend benefit of reservation to candidates having
temporary disability certificates. The said stipulation made in the said
communication, dated, 24.12.2021, is in tune with the definition of
"persons with disability" as provided under the provisions of Section 2(s) of
the Rights of Persons with Disabilities Act, 2016.
30. Accordingly, in view of the admitted position that the respondent No.
1, herein, till date, has not been issued with a permanent disability
certificate; accepting his claim for being appointed against the post of
Junior Technician(Diesel), in the considered view of this Court, would have
the effect of causing injustice to candidates suffering from hearing
impairment of permanent nature, which is clearly impermissible.
31. Having drawn the above conclusions, we would now proceed to
examine the directions passed by the learned Single Judge vide order,
dated 23.04.2024, in WP(c)3832/2023.
32. The learned Single Judge by noticing that the respondent No. 1,
herein, had possessed a temporary disability certificate; proceeded to hold
that there was no reason as to why the appellants, herein, had refrained
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from appointing the respondent No. 1, more particularly, when he had
come out successful in the said recruitment process. Basing on the said
conclusion, the learned Single Judge had proceeded to direct the
appellants, herein, to appoint the respondent No. 1, against the post of
Junior Technician (Diesel), under the disability category upto 25.10.2025
i.e. the date of validity of the temporary disability certificate possessed by
the respondent No. 1. The learned Single Judge further provided in the said
order, dated 23.04.2024, passed in WP(c)3832/2023, that on expiry of the
validity period of the temporary disability certificate possessed by the
respondent No. 1, herein, he would be required to undergo the medical
examination before the competent medical authority and in the event, his
degree of disability had fallen below the benchmark of 40%; the appellants,
herein, were at liberty to terminate the service of the respondent No. 1,
without any further notice. The learned Single Judge had also held that in
the event, the respondent No. 1, herein, on such examination, was found
to be suffering from a permanent disability, he should be allowed to
continue.
33. The appellants, herein, have submitted that there exists no provision
in their organization for affecting appointment on conditional basis. Further,
the appointment of a person with temporary disability, would have the
effect of denying the benefit of reservation provided for persons with
benchmark disability, to a person who otherwise suffers from permanent
hearing impairment and is covered by the provisions of Section 2(s) of the
Rights of Persons with Disabilities Act, 2016.
34. The respondent No. 1, herein, admittedly, not having fulfilled the
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requisites for being considered as a person with disability, for the purpose
of extending to him, the benefit of reservation mandated for persons with
disability; the respondent No. 1, herein, was not entitled to be extended
with the benefit of the appointment as has now been extended to him by
the learned Single Judge vide the impugned order, dated 23.04.2024,
passed in WP(c)3832/2023.
35. In view of the medical opinion available on record pertaining to the
disability suffered by the respondent No. 1, herein, and the same having
univocally disclosed such disability suffered by the respondent No. 1, to be
temporary in nature; we are not in a position to take a contrary view with
regard to such medical opinion. Accordingly, we are of the considered view
that the learned Single Judge had erred in accepting the temporary
disability certificate possessed by the respondent No. 1, herein, for the
purpose of directing the appellants, herein, to appoint him as Junior
Technician(Diesel) against the posts reserved for persons with disability.
36. In such view of the matter, the appointment of the respondent No. 1,
herein, having the effect of depriving persons otherwise satisfying the
criteria mandated for being considered against posts reserved for persons
with disability; we are of the considered view that the directions passed by
this Court, vide order, dated 23.04.2024, in WP(c)3832/2023, would
mandate an interference.
37. In view of the above discussions, the impugned order, dated
23.04.2024, passed by the learned Single Judge in WP(c)3832/2023,
cannot be sustained and accordingly, the said order, dated 23.04.2024,
Page No.# 20/20
passed by the learned Single Judge in WP(c)3832/2023, stands set aside.
38. Resultantly, the present writ appeal stands allowed and consequently,
the writ petition filed by the respondent No. 1, being WP(c)3832/2023,
stands dismissed. However, there shall be no order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
