8. Considered the submissions of learned advocates for the
parties.
9. At the outset, it is noted that the appellant was appointed as
an Assistant under the Notification dated 07.03.2015. The appellant
has produced the Disability Certificate at Annexure-A, which is not
in dispute. Learned advocates for the parties have sought to
compare the eligibility conditions prescribed in the 2015 and 2016
Notifications. The eligibility conditions under the 2015 Notification
for the posts of Assistant and Assistant Accounts Officer, as well as
those under the 2016 Notification for the same posts, are as
follows:
Post Eligibility Criteria Petitioner's Eligibility Criteria
As per 2015 Disability As per 2016
Notification (Annexure-A) Notification
Assistant Should possess a a) Locomotor disability:
(Annexure - B. medical certificate issued One Leg (OL), One Arm
See Page No.21 of by the competent medical (OA), Both Legs (BL)
the Writ Petition) authority to show physical
defect or deformity to an b) Hearing
extent of minimum 40% Handicapped (HH)
which causes in
interference with the c) Blind (B), Low Vision
normal functioning of BLA- Both Legs and (LV)
bones, muscles and Both Arms affected.
joints. Percentage of
disability is 75%
Assistant a) Locomotor disability: No blindness or low a) Locomotor disability:
Account Officer One Leg (OL), One Arm vision. One Leg (OL), One Arm
(Annexure -D. (OA), Both Legs (BL) No hearing (OA), Both Legs (BL)
impairment.
See Page No. 40 of b) Hearing Handicapped b) Hearing
the Writ Petition) (HH) Handicapped (HH)
c) Low Vision (LV) c) Low Vision (LV)
9.1. The comparison of eligibility conditions and types of
disabilities as prescribed is not in dispute between the parties. As
per Annexure-A, the appellant suffers from a disability affecting
both legs and both arms. The certificate also provides an
assessment of the disability and outlines the nature of the
work/functions that can be performed by the appellant. Under the
2015 Notification, a candidate with a physical difficulty or deformity
to the extent of at least 40%, which caused interference with the
normal functioning of bones, muscles, and joints, was eligible for
the post of Assistant. Similarly, for the post of Assistant Accounts
Officer, candidates with locomotor disability affecting one leg, one
arm, or both legs were eligible. However, under the 2016
Notification, a person with locomotor disability affecting one leg,
one arm, or both legs is eligible for appointment under the PwD
quota.
10. The distinction sought to be made by the respondents in
denying the appellant's appointment is based on the fact that the
appellant suffers from locomotor disability affecting both arms,
whereas the condition under the 2015 Notification was different.
The contention of the respondents cannot be accepted for more
than one reason. Firstly, the appellant, despite suffering from
disability affecting both arms, has already been appointed to the
post of Assistant. The appellant is also eligible for promotion to the
next post in due course, which is the post of Assistant Accounts
Officer. While promoting the appellant to the post of Assistant
Accounts Officer, no additional eligibility criteria have been
prescribed. Further, no such criteria have been placed before the
Court. Therefore, when the appellant is deemed eligible for
promotion to the post of Assistant Accounts Officer, it is difficult to
accept that he is not eligible for direct recruitment to the same post.
What requires consideration, in this context, is the functional
assessment. In determining the suitability or eligibility of a
candidate with a disability, the functional assessment, beyond just
the medical evaluation, is crucial. Annexure-A, the Disability
Certificate, clearly records that the appellant can perform normal
work with both hands, albeit subject to certain restrictions.
11. It is contended by learned Advocate for the appellant that the
functions assigned to the appellant are nearly identical to those to
be performed by the Assistant Accounts Officer. The said
contention merits consideration.
12. Learned advocates for the respondents, while urging
compliance with the conditions of the recruitment notification, are
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unable to dispute that, if the appellant is appointed as Assistant
Accounts Officer, there would be no impediment due to his
disability in performing the functions of the post.
13. The contentions of learned advocates for the respondents,
that once the eligibility conditions, whether with respect to
qualifications or the types of disabilities, are notified, they require
strict compliance, do not warrant detailed deliberation.
14. The issue to be considered is,
" Whether the eligibility criteria regarding the types of
disabilities for candidates under the PwD category can
be relaxed when there is no other eligible candidate in
the category for the post, and the appellant is
functionally suitable to perform the duties of the
notified post.?"
15. It is relevant to refer to the judgment of the Hon'ble Supreme
Court in Re: Recruitment of Visually Impaired in Judicial
Services (supra). In this judgment, the Hon'ble Supreme Court,
while laying down multiple guidelines to address the issues faced
by persons with disabilities, has emphasized one of the key criteria
as the 'Rights-Based Approach'. The same reads as under,
"E. RIGHTS-BASED APPROACH;
41. The spirit of the RPwD Act, 2016 would reveal that the
principle of reasonable accommodation is a concept that
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not only relates to affording equal opportunity to the PwD
but also it goes further as to ensuring the dignity of the
individual by driving home the message that the
assessment of a person's suitability, capacity and
capability is not to be tested and measured by medical or
clinical assessment of the same but must be assessed
after providing reasonable accommodation and an
enabling atmosphere. The judgment of this Court in Vikash
Kumar (supra) assumes increased significance in this
regard. This Court in this case has expounded in detail the
principle of reasonable accommodation by invoking the
social model of disability. In response to the judgment, the
Department of Disability Affairs, Government of India has
notified guidelines for availing of scribes by all persons with
specified disabilities to appear in written examinations
thereby widening the ambit of its earlier guidelines issued
in 2018 confining this privilege only to persons with
benchmark disabilities. Very importantly, while overruling
the earlier decision in Surendra Mohan (supra), this Court
has held that any decision which is innocent to the
principle of reasonable accommodation would amount to
disability-based discrimination and is also in deep tension
with the ideal of inclusive equality. After the judgment
which has focused on a rights-based model and rejection
of the medicalisation of the disability in order to assess the
suitability and capability of PwD, the "suspicion ridden
medical expertise driven model, is directly opposed to the
principle as laid down by this court and also the spirit of the
RPwD Act, 2016.
15.1 Further in conclusion, it is held as under,
67.1. Thus, after considering the pleadings, submissions of
the learned counsel appearing for all the parties, as well as
the legal positions and case laws, we conclude as follows:
(i) Visually impaired candidates cannot be said to be
'not suitable' for judicial service and they are eligible
to participate in selection for posts in judicial service.
(ii) The amendment made in Rule 6A of the Madhya
Pradesh Judicial Service (Recruitment and
Conditions of Service) Rules, 1994 falls foul of
the Constitution, and is hence, struck down to the
extent that it does not include visually impaired
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persons who are educationally qualified for the post
to apply therefor.
(iii) The proviso to Rule 7 of the Madhya Pradesh
Judicial Service (Recruitment and Conditions of
Service) Rules, 1994 relating to additional
requirements, violates the equality doctrine and the
principle of reasonable accommodation, and is
hereby struck down in its application to differently
abled persons who have the requisite educational
qualifications for applying to the posts under judicial
service.
(iv) Relaxation can be done in assessing suitability of
candidates when enough PwD are not available
after selection in their respective category, to the
extent as stated in the relevant paragraphs above,
and in the light of existing Rules and Official
Circulars and executive orders in this regard, as in
the present case.
(v) A separate cut-off is to be maintained and selection
made accordingly for visually-impaired candidates
as has been indicated in the relevant paragraphs in
line with the judgment in Indra Sawhney.
(vi) For the purpose of rights and entitlements of
persons with disabilities, particularly in employment,
and more specifically in respect of the issues
covered in this judgment, there can be no distinction
between Persons with Disabilities (PwD) and
Persons with Benchmark Disabilities (PwBD).
16. If the facts of the present case are examined in light of the
findings and the approach suggested by the Hon'ble Supreme
Court in the judgment referred to supra, it becomes evident that,
while assessing the capacity and capability of a candidate, undue
emphasis cannot be placed on medical or clinical issues alone.
Furthermore, it is held that, when there are insufficient PwD
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candidates available for selection in their respective category,
relaxation of the eligibility criteria may be considered in assessing
the suitability of a candidate.
17. If the facts of the case are tested by applying the principles
laid down by the Hon'ble Supreme Court, the analysis is threefold.
Firstly, the appellant is already appointed as an Assistant, and he
would be eligible for promotion to the post of Assistant Accounts
Officer. If he can be deemed fit for promotion to the post of
Assistant Accounts Officer, it would be unreasonable to declare
him ineligible for the same post through direct recruitment. The
functions to be performed by the Assistant and Assistant Accounts
Officer are, as submitted, almost identical, a point which is not
disputed by the respondents. Secondly, although Annexure-A, the
Disability Certificate, certifies that the appellant suffers from a
disability affecting both legs and both arms, it also provides a
functional assessment of the appellant. According to the certificate,
the appellant is eligible to perform light duties, which include sitting,
writing with his hands, and performing normal work with both
hands. This functional assessment qualifies the appellant to be
appointed as Assistant Accounts Officer. Thirdly, as held by the
Hon'ble Supreme Court, if there is no other eligible candidate under
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the PwD quota available in the respective category, the eligibility
criteria may be relaxed. Upon such relaxation, the appellant would
be eligible for the post of Assistant Accounts Officer.
18. The Learned Single Judge proceeded to consider the case of
the appellant as though he were challenging the eligibility
conditions prescribed in the notification. However, the case of the
appellant was based on the functional assessment of his disability,
which he contends renders him eligible for appointment as
Assistant Accounts Officer. The Disability Certificate certifies that
the appellant suffers from locomotor disability affecting both legs
and both arms. However, in assessing his functional capacity, the
certificate clearly states that the appellant is able to perform light
duties, including sitting and using both hands. This distinction was
not considered by the Learned Single Judge. In light of the
judgment of the Hon'ble Supreme Court referred to supra, the
assessment of suitability must not be based solely on the medical
certificate, but also on the functional assessment of the candidate.
19. Another unjustifiable finding recorded by the Learned Single
Judge is that the post of Assistant Accounts Officer is not a
promotional post, but rather a direct recruitment post. Learned
Advocate for the appellant contended that the post of Assistant
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Accounts Officer can be filled by promotion, a fact which is not
disputed by the respondents.
20. Insofar as the finding of the Learned Single Judge, that once
a candidate participates in the selection process without objection,
he is estopped from challenging the process at a later stage, is
concerned, such a situation does not arise in the present case. The
appellant has not challenged the eligibility conditions or the
selection process. What the appellant has pleaded is his eligibility
for the post of Assistant Accounts Officer.
21. The finding of the Learned Single Judge, that eligibility
criteria cannot be compromised or altered to favor an individual
contrary to the prescribed criteria, is not disputed. However, what
needs to be examined in the present case is the application of this
principle in the context of a candidate seeking selection under the
PwD category. Such a situation has been addressed by the
Hon'ble Supreme Court in the case referred to supra, where it was
held that relaxation of the eligibility criteria can be considered in
assessing the suitability of a candidate when sufficient PwD
candidates are not available for selection in their respective
category.
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22. For the reasons recorded as above, the order of learned
Single Judge suffers from infirmities and requires interference of
this Court. The order of learned Single Judge is not sustainable.
23. In light of the aforesaid reasons, the following,
Order
(i) Writ Appeal is allowed.
(ii) The judgment and order dated 27.09.2024 in Writ
Petition No. 5666 of 2018 is set aside.
(iii) The appellant is held to be eligible for the post of
Assistant Accounts Officer under the reservation for
persons with disabilities.
(iv) The respondents are directed to appoint the appellant
to the post of Assistant Accounts Officer.
(v) The appellant is entitled to notional seniority as per the
final list published pursuant to the notification dated
08.09.2016.
(vi) The process of including the appellant's name in the
final selection list, issuing the order of appointment,
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and determining the seniority list shall be completed
within eight weeks from the date of this order.
In view of disposal of main appeal, pending interlocutory
application, if any, stands disposed of.
Sd/-
(N. V. ANJARIA)
CHIEF JUSTICE
Sd/-
(K. V. ARAVIND)
JUDGE
MV
