Sarvaiya Bhaveshkumar ... vs State Of Gujarat
2022 Latest Caselaw 4022 Guj

    C/SCA/11359/2021                             JUDGMENT DATED: 06/04/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 11359 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                  SARVAIYA BHAVESHKUMAR KARSHANBHAI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR.GAUTAM JOSHI, LD. SENIOR ADVOCATE for VYOM H SHAH(9387)
for the Petitioner(s) No. 1
MS.SURBHI BHATI, AGP for the Respondent(s) No. 1,8,9
MR AMAR D MITHANI(484) for the Respondent(s) No. 2,3,4,6
NOTICE SERVED BY DS for the Respondent(s) No. 5,7
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 06/04/2022

                            ORAL JUDGMENT

1. Heard Mr.Gautam Joshi learned Senior Advocate

with Mr.Vyom Shah learned advocate for the

petitioner, Ms.Surbhi Bhati learned AGP for

C/SCA/11359/2021 JUDGMENT DATED: 06/04/2022

respondent nos.1, 8 and 9 and Mr.Amar Mithani

learned advocate for respondent nos.2, 3, 4 and 6.

Though served, no one appears for respondent nos.5

and 7.

2. This petition under Article 226 of the Constitution of

India, filed by a candidate who suffers from myopic

retinal degeneration, challenges his non-selection to

the post of non-teaching junior clerk under the

respondent university. The case of the petitioner is

that an advertisement was issued on 01.06.2019 for

several posts including the post of junior clerks. The

advertisement stipulated that there will be

reservation for physically disabled candidates if they

suffer disability to the extent of 40% to 75%. The

petitioner applied for the post. He was successful in

the criteria of written test and computer proficiency

test. The merit list for counseling and certificates

was published. The name of the petitioner reflected

at Sr. No.207 and that of the respondent no.7

reflected at Sr. No.470. In case of the petitioner a

remark was made in the merit list that since the

C/SCA/11359/2021 JUDGMENT DATED: 06/04/2022

petitioner suffers from temporary physical disability

which is not of a permanent nature, his candidature

shall not be considered against the reserved vacancy

for physically disabled candidate. This was pursuant

to a certificate issued by the Department of

Empowerment of Persons with Disabilities, Ministry

of Social Justice and Empowerment, Government of

India, of the Superintendent/Civil Surgeon,

Bhavnagar, which indicated that the petitioner

suffered from 40% disability. The remark further

indicated that it was temporary for five years given

by the General Hospital, Botad.

3. Mr.Joshi learned Senior Advocate for the petitioner

would submit that aggrieved by his non-selection, he

approached the competent authorities under the

Right of Persons with Disabilities Act 2016. The

authority by an interim order dated 24.09.2021,

ordered that the petitioner be reexamined and a

fresh certificate be obtained in view of the earlier

certificate, certifying the disability of the petitioner

for a period of five years Based on this interim

C/SCA/11359/2021 JUDGMENT DATED: 06/04/2022

order, the petitioner approached the Board of

Referees MNG Institute of Ophthalmology and a

certificate was granted on 20.10.2021, opining that

the petitioner suffered from a disability which is

permanent and may be progressive. Armed with this

certificate, the petitioner would therefore contend

that the mark of non-selection on the ground of the

petitioner being temporarily disabled, was

inappropriate.

4. Mr.Amar Mithani learned counsel appearing for the

respondent university, drawing the Court's attention

to the affidavit in reply field by one Harish Vasudev

Pandya, Registrar of the Navsari Agricultural

University would submit that 257 posts were

advertised in the category of Class-III junior Clerks.

94,427 candidates applied. 850 candidates were

called for the proficiency test and as per the

advertisement, 6 posts were to be filled in the

category of physically handicapped candidates which

included 18 handicapped candidates who appeared

under the merit list.

C/SCA/11359/2021 JUDGMENT DATED: 06/04/2022

5. Mr.Mithani would rely on the communication of the

Ministry of Social Justice and Empowerment,

Government of India, clarifying that if a person has a

disability of a temporary nature and the person had

progress or regress, it would not be appropriate to

give reservation in jobs to persons with benchmark

disability of temporary nature as at the time of their

percentage of disability reduces below 40%.

Accordingly they would be out of the definition of

person with benchmark disability.

6. The stand of the University, in Mr.Mithani's

submission therefore is that since the certificate of

the Superintendent, Bhavnagar Hospital, certified

the petitioner as possessing temporary disability, the

candidature of the petitioner was rightly rejected.

7. Reading the certificate and the ailment suffered by

the petitioner, it is apparent that the nature of

ailment i.e. myopic retinal degeneration is by virtue

of its term a progressive and an incurable physical

condition. The certificate of the Bhavnagar Civil

C/SCA/11359/2021 JUDGMENT DATED: 06/04/2022

Surgeon cannot be taken into consideration once,

pursuant to the interim order passed by the

competent authority under the Right to Disabilities

act, the Institute of Ophthalmology, though non-

certifying the percentage of disability, has

unequivocally stated that the petitioner has a

permanent disability which may be progressive.

8. In light of this certificate, though Mr.Mithani would

submit that rather than continue to pursue this

petition, the petitioner should obtain appropriate

final orders in the appeal which is pending, no

fruitful purpose would be served in continuing the

appeal under the Disabilities Act in light of the

certificate issued by the MNJ Institute of

Ophthalmology, certifying permanent and

progressive disability of the petitioner.

9. Accordingly, the action of the respondent authorities

in not including the petitioner on the ground that he

suffers temporary disability is held to be bad. The

disability suffered by the petitioner is admittedly

C/SCA/11359/2021 JUDGMENT DATED: 06/04/2022

permanent and progressive and the petitioner is

entitled to have his name included in the physically

handicapped category and entitled to appointment

as a junior clerk from the date the last candidate in

the physically handicapped category is selected

along with all consequential benefits. The

compliance of these directions shall be made within

a period of 10 weeks from the date of receipt of copy

of this order.

10. The petition is allowed in the aforesaid terms. Rule

is made absolute to the aforesaid extent.

(BIREN VAISHNAV, J) ANKIT SHAH