Lalubhai Rayajibhai Patel vs State Of Gujarat
2022 Latest Caselaw 1461 Guj

     C/SCA/19173/2017                                  JUDGMENT DATED: 09/02/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 19173 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                           Sd/­

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

2     To be referred to the Reporter or not ?                              YES

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

4     Whether this case involves a substantial question of law as           NO
      to the interpretation of the Constitution of India or any
      order made thereunder ?

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                         LALUBHAI RAYAJIBHAI PATEL
                                   Versus
                        STATE OF GUJARAT & 3 other(s)
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Appearance:
MR PA JADEJA(3726) for the Petitioner(s) No. 1
MR. AYAAN PATEL, AGP for the Respondent(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1,2,4
NOTICE SERVED BY DS for the Respondent(s) No. 3
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    CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 09/02/2022

                               ORAL JUDGMENT

1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent­state. At request of the parties the rule is made returnable forthwith and case is taken of for final hearing as now the pleadings are complete.

C/SCA/19173/2017 JUDGMENT DATED: 09/02/2022

2. This petition under Article­226 of the Constitution of India is filed seeking directions to declare the petitioner having locomotor disability as eligible to participate in the recruitment process for the post of Live Stock Inspector. The petitioner is having a disability of one leg, which is locomotor disability. The petitioner had applied pursuant to the Advertisement for the post of Live Stock Inspector being Advertisement No.134/2017­18.

3. It is submitted that out of the post advertised, 11 posts were kept reserved for the persons with disability under the provisions of the Rights of Persons with Disabilities Act, 2016 herein after referred to as 'PWD Act, 2016'. However, such 11 posts were reserved for the persons who had disability with vision and hearing impaired, no posts were reserved for the persons with locomotor disability.

4. It is the case of the petitioner that as the petitioner was holding requisite education qualification, had applied. As there was no specification regarding disability in the advertisement and therefore, the petitioner was eligible for applying to the post as a person with disability. It is submitted that the respondent - Authorities are required to undertake the periodic assessment to specify the nature of disability and that the persons with such disability, are able to perform the nature of duties and accordingly the petitioner was capable of performing the duty of the Live Stock Inspector as the scope of work specified for Live Stock Inspector, which the petitioner is able to perform. It is submitted that the PWD Act, 2016 was passed in the year 2016 and the Act of 2016 specifies the categories of disability, which are required to be kept under reservation. He draws attention of this Court to Section­34 of the PWD Act, 2016 and submitted that Clause­(c) of Section­34(1) provides for the persons with locomotor disability to be a category for whom the reservation can be made.

5. Learned Advocate for the petitioner has thereafter submitted that now the Government itself has come out with the Resolution dated 17­12­ 2021, where the locomotor disability of one leg was considered to be category for which the reservation is to be made.

6. Learned AGP opposing to the petition submitted that the process for the

C/SCA/19173/2017 JUDGMENT DATED: 09/02/2022

recruitment was under the Advertisement of the year 2017, but the procedure for requisitioning such posts for the Advertisement had commenced in the year 2016 and at that time, Act of 1995 was in place and therefore, the disability with the petitioner is facing would not be treated as the disability recognized for the purpose of reservation. He therefore, relied upon the Communication dated 23­10­2008, which according to him is in the exercise of the power of the State for treating the nature of category of disability for the purpose of reservation and therefore, the Communication of 2008 exempts the persons with disability of one leg from the category of reservation. In view of the provision of the Act of 1995, the State Government was within its power to do so. It is submitted that even as per the Act of 2016, the Government is required to undertake an exercise for identifying the posts for reservation as per Section­33 and accordingly, the Government Resolution of 17­12­2021 was issued and according to that now the persons with locomotor disability (one leg disability) were treated to be category for which the reservation would apply.

7. In rejoinder, learned Advocate for the petitioner submitted that even on the basis of recruitment process carried out, even today, as against total advertised posts of 400, 22 posts reserved, only 4 posts are filled up and rest are remaining vacant. It is therefore, submitted that even if the provision of Act are to be applied, vacant seats will have to be carried forward into the next process of recruitment. Therefore, it is submitted that case of the petitioner be considered as the petitioner is eligible in all other respect.

8. Learned Advocate has thereafter relied upon the decision of the Hon'ble Apex Court in case of Justice Sunanda Bhandare Foundation v/s. Union of India and another reported in (2017) 14 SCC 1, to contend that the benevolent legislation has to be seen in the manner in which the benefit is in fact available to the persons with disability.

9. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the Advertisement for the recruitment of Live Stock Inspector was made on 26­07­2017 being Advertisement No.133/2017­18.

10. It is pertinent to observe here that The PWD Act, 2016 was published in the Gazette on 28th December, 2016 and has come into

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force on 19th April, 2017.

11. In the opinion of the Court when the Advertisement was issued on 26­07­2017, the PWD Act, 2016 had come into force . Therefore, all the provisions of PWD Act, 2016 will apply with full force and would include Section­34, which provides for the reservation for the category of the persons who are mentioned in that Section. Section­34 provides for appropriate Government to appoint in the Government establishment not less than 4% of the total number of vacancies in the cadre strength in each group, which are in each group of posts, which are meant to be filled with the persons with benchmark disability. The benchmark disability were provided for under Clause­(a) to (e), where Clause­(c) provides for locomotor disability, including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy.

12. In the opinion of the Court therefore, the Advertisement when provided for the reservation of 11 posts restricting it to the disability with partial blindness or hearing impaired, would be against the provision of the Act itself. The category of locomotor disability was very much the category with benchmark disability to be included in the reservation and therefore, the petitioner, who is the persons with disability of one leg, which may be treated as locomotor disability was eligible to claim to be considered in the reserved category as provided under Section­34 of the PWD Act, 2016.

13. The case of the petitioner has bettered with passage of time, as the Government with due deference to the provisions of the PWD Act, 2016 has issued the Government Resolution dated 17­12­2021, wherein for the post of Live Stock Inspector, disability of one leg has been recognized as the category for the reservation.

14. While considering the case of the petitioner, the Court has also taken into consideration the purpose of the Act as expressed by the Hon'ble Apex Court in decision of Vikash Kumar v/s. Union Public Service Commission and others reported in (2021) 5 SCC 370, wherein the Hon'ble Apex Court in Para­60, 61 and 62, has held as under:

"60. At the heart of this case lies the principle of reasonable

C/SCA/19173/2017 JUDGMENT DATED: 09/02/2022

accommodation. Individual dignity undergirds the 2016 RPwD Act. Intrinsic to its realization is recognizing the worth of every person as an equal member of society. Respect for the dignity of others and fostering conditions in which every individual can evolve according to their capacities are key elements of a legal order which protects, respects and facilitates individual autonomy. In seeking to project these values as inalienable rights of the disabled, the 2016 RPwD Act travels beyond being merely a charter of non­discrimination. It travels beyond imposing restraints on discrimination against the disabled. The law does this by imposing a positive obligation on the State to secure the realization of rights. It does so by mandating that the State must create conditions in which the barriers posed by disability can be overcome. The creation of an appropriate environment in which the disabled can pursue the full range of entitlements which are encompassed within human liberty is enforceable at law. In its emphasis on substantive equality, the enactment of the legislation is a watershed event in providing a legal foundation for equality of opportunity to the disabled.

61. As a social construct, disability encompasses features broader and more comprehensive than a medical condition. The 2016 RPwD Act, recognizes that disability results in inequality of access to a range of public and private entitlements. The handicaps which the disabled encounter emerge out of disability's engagement with the barriers created by prejudice, discrimination and societal indifference. Operating as restraining factors, these barriers have origins which can be traced to physical, social, economic and psychological conditions in society. Operating on the pre­existing restraints posed by disability, these barriers to development produce outcomes in which the disabled bear an unequal share of societal burdens. The legislation has recognized that remedies for the barriers encountered by the disabled are to be found in the social environment in which they live, work and co­habit with others. The barriers encountered by every disabled person can be remedied by recognizing comprehensive rights as inhering in them; rights which impose duties and obligations on others.

62. The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion.

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Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individuals' dignity and worth is respected. Under this route, the "powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realization of these ends."

15. In that view of the matter also the petitioner is required to be treated as a candidate eligible for the post of Live Stock Inspector reserved for the persons with disability under the category of Section­34 (1)(c) with locomotor disability.

16. Taking into consideration the present state of affair, which is now on record to indicate that out of 22 seats reserved for the persons with disability, only 4 seats have been filled up. It would be appropriate to direct the respondents to consider the petitioner to be eligible candidate as the person with disability for the reserved post of Live Stock Inspector (Class­3) and therefore, the petitioner is declared as eligible candidate to the aforesaid post and if the petitioner is found otherwise eligible in all other regards that is to say with regards to the other qualifications then, the petitioner be offered post of Live Stock Inspector (Class­3).

17. At this stage, learned Advocate for the petitioner states under instruction that the appointment that may be issued be treated from the date of his appointment and that the petitioner shall not make any claim with regards to his appointment from the date of advertisement or the day on which the other candidates were appointed pursuant to the Advertisement No.133/2017­18 dated 26­07­2017.

18. In view of the aforesaid the petition stands allowed to the aforesaid extent. Rule is made absolute with no order as to costs. Direct service is permitted.

Sd/­ (A.Y. KOGJE, J) PARESH SOMPURA