Rajasthan High Court

Rajasthan Public Service Commission vs Kuldeep Jaiman S/O Shri Narendra Kumar ... on 6 March, 2024

Bench: Manindra Mohan Shrivastava, Bhuwan Goyal

   [2024:RJ-JP:11604-DB]

           HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       BENCH AT JAIPUR

               D. B. Civil Special Appeal (Writ) No. 198/2024

                                              In

                    S. B. Civil Writ Petition No. 13115/2021

    Rajasthan Public Service Commission, through its Secretary,
    Ghoogra Ghati, Ajmer
                                                          ----Appellant-Respondent

Versus

1. Kuldeep Jaiman S/o Shri Narendra Kumar Jaiman, Aged About 29 Years, Resident of House No. 121, Ward No. 10, Khasa Mohalla, Near Khas School, Alwar 301001 (Raj.) Mobile 7891278718 Respondent-Writ Petitioner

2. State of Rajasthan, through Principal Secretary, Department of Personnel, Government of Rajasthan, Government Secretariat, Jaipur-302005

3. The Principal Secretary, Social Justice and Empowerment Department having its Office Government Secretariat, Jaipur

----Proforma Respondents

For Appellant : Mr. Amit Lubhaya Advocate with Mr. Shreyansh Jain Advocate; Ms. Garima Gothwal Advocate and Mr. Dewesh Bajoria Advocate.

For Respondent No. : Mr. Shovit Jhajharia Advocate with Mr. 1 Ankit Kumar Advocate and Mr. Utkarsh Dubey Advocate.

present in person.

HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE BHUWAN GOYAL

Judgment

REPORTABLE

06/03/2024

1. Heard learned counsel for the parties.

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2. This appeal is directed against order dated 14.02.2024

passed by the learned Single Judge, whereby, writ petition filed by

Respondent No. 1 (person with disability) has been allowed and

cost of Rs. 5,00,000/- has been imposed upon the appellant.

3. Shorn of unnecessary details, Respondent No. 1, who suffers

from 100% visual impairment, submitted his application form

pursuant to Advertisement dated 20.07.2021 for appointment

under Rajasthan State and Subordinate Services. The

advertisement was issued by the appellant-Rajasthan Public

Service Commission (hereinafter referred to as 'the RPSC'). The

RPSC gave option to the candidates with disability that they may

bring their own scribe or seek this facility from the RPSC.

Respondent No. 1, admittedly, opted to bring his own scribe. As

the pleadings in the writ petition reveal, Respondent No. 1

reached at examination centre at 9.00 AM. It further appears that

mainly on the ground that Respondent No. 1 had not brought

disability certificate/medical certificate, despite all persuasion, he

was not allowed to appear in the examination. This led to filing of

the writ petition by Respondent No. 1.

4. In the reply filed by the appellant-RPSC, the main ground

which was raised to oppose the relief sought in the writ petition,

was that the instructions applicable to disabled category

candidates required those candidates to bring their disability

certificate at the time of examination. The other ground raised in

the reply to oppose the relief sought in the writ petition was that

Respondent No. 1 was required to inform at the examination

centre one day before the date of examination which was also not

done by him.

[2024:RJ-JP:11604-DB] (3 of 10) [SAW-198/2024]

5. The stand taken by the appellant-RPSC did not find favour

with learned Single Judge leading to specific finding that

Respondent No. 1 was illegally deprived from appearing in the

examination. A heavy cost of Rs. 5,00,000/- has also been

imposed upon the appellant-RPSC by the learned Single Judge.

6. Learned counsel for the appellant-RPSC vehemently

contended and argued in extenso before us that Respondent No. 1

did not comply with the specific requirement of information to

Centre Superintendent a day before the examination that he

would be bringing his own scribe and at the time when he reached

the examination centre, he did not bring his disability certificate.

Referring to instructions (Annexure R-1 appended with reply to

writ petition filed by the appellant-RPSC) under the heading,

"Jqrys[kd (SCRIBE) miyC/k djk;s tkus lEcU/kh lkekU; fn'kk&funsZ'k ", particularly clause 10 and 11, it has been submitted that there

were clear instructions that the candidate with disability was

required to inform the Centre Superintendent a day before the

examination and he was also required to bring the disability

certificate/medical certificate. It has also been argued that

Respondent No. 1 ought to be vigilant, but he was indolent as he

contacted at the examination centre office at 9.45 A.M. only

whereas, examination was to start at 10.00 A.M. The authorities

were entitled to make necessary enquiry with regard to

entitlement of the candidate who appears with a scribe as person

belonging to disabled category. Therefore, if Respondent No. 1-

writ petitioner could not appear in the examination, no fault could

be attributed to the RPSC.

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7. Learned counsel for the appellant further argued that even

assuming that some violation had taken place resulting in denial of

participation of the candidate suffering from disability, as per

provisions contained in Sections 20 and 21 of the Rights of

Persons with Disabilities Act, 2016 (hereinafter referred to as 'the

Act'), the matter is required to be dealt with under those

provisions and only in case of repetition of violation, extreme cost

of Rs. 5,00,000/- could be imposed upon contravention of the

provisions of the Act. It is submitted that learned Single Judge,

while imposing cost, has misconstrued the provisions of Section

89 of the Act with regard to imposition of fine/penalty on the

default. It is also submission of learned counsel for the appellant

that present is not a case where the office of the RPSC had

anything to do with the denial of participation in examination as

alleged. Learned counsel would further submit that examination

centres are engaged by the RPSC with the help of the

administration and if, at any particular examination centre, Centre

Superintendent, for one reason or the other, had disallowed the

person with disability to appear in the examination, liability has to

be fastened only on that person and not on the RPSC. Therefore,

imposition of cost on the RPSC is not justified in law.

8. On the other hand, learned counsel for Respondent No. 1

relied upon the order passed by the learned Single Judge and

would submit that action of the appellant has been found illegal

and, therefore, taking into consideration that because of the fault

on the part of the examination system, a person suffering from

disability lost an avenue of public employment, cost has been

imposed.

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9. We have heard learned counsel for the parties, perused the

record and the order passed by the learned Single Judge.

10. Reply filed by the appellant-RPSC before the learned Single

Judge states the reason for not permitting Respondent No.1 to

appear in the examination that Respondent No. 1 had not

contacted at the examination centre and/or informed Centre

Superintendent about bringing his own scribe at any point of time

prior to the examination and he also did not bring any disability

certificate or proof to establish his disability. In the reply to writ

petition, following averments have been made by the appellant-

RPSC:

"In the instant case, it is admitted by the Petitioner in the Writ Petition itself that he had not informed the examination center and/or the Centre Superintendent about bringing his own scribe at any point of time prior to the examination and he also did not bring any disability certificate or proof to establish his disability.

It is respectfully submitted that the Petitioner (Roll No. 154572) appeared for the Preliminary Examination at Examination Centre 02-0030 (Alwar) on 27.10.2021 at 9:45 AM and requested the Centre Superintendent to permit him to appear under the Blind/Low Vision category with his own scribe. However, upon requesting the Petitioner to provide his Disability/Medical Certificate, the Petitioner submitted that he did not bring his proof of disability and submitted an application that he will provide the same by 2:00 PM. A copy of the representation of the Petitioner is annexed herewith and marked as ANNEXURE R-2."

Except aforesaid, no other ground was averred in the reply

as the reason to deny access to examination.

11. Heavy reliance has been placed on instructions (Annexure R-

1 appended with reply to writ petition filed by the appellant-

RPSC), particularly Clauses 10 and 11 which are reproduced as

below:

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"10- ,sls ijh{kkFkhZ ftUgksaus vius vkosnu esa fu%'Drrk ugha Hkjh gS ;k Jqrys[kd dh lqfo/kk gsrq dsUnzk/kh{kd dks ijh{kk izkjEHk gksus dh fnukad ls iwoZ gh lwpuk ugha nh gS ;kfpfdRlk izek.ki= izLrqr ugha fd;k gS] dks ;g lqfo/kk ns; ugha gksxhA ,sls ijh{kkFkhZ] tks vpkud nq?kZVuko'k ys[ku dk;Z ls vLFkk;h :i ls vleFkZ gq, gSa] mUgsa Jqrys[kd dh lqfo/kk ns; ugha gksxhA

11- ;fn fdlh ijh{kk esa dfri; iz'u fp= ;k vkd`fr vk/kkfjr gS] rks vk;ksx muds iz'u i= esa bu iz'uksa dks gVkrs gq, vkSj buds LFkku ij u, iz'u j[krs gq, i`Fkd ls iz'u i= rS;kj djk ldrk gS] D;ksafd n`f"Vckf/kr (Blind/Low Vision) ijh{kkFkhZ ,sls iz'uksa dks ns[k ugha ikrs gSaA bl izdkj ,sls n`f"Vckf/kr (Blind/Low Vision) ijh{kkFkhZ] ftudks Jqrys[kd miyC/k djk;k tk;sxk] mu ijh{kkfFkZ;ksa gasrq iz'u i= vyx ls fn;s tk ldrs gSaA fdarq ;g vko';d ugha fd ls lqfo/kk izR;sd ijh{kk esa nh gh tk;s tgk¡ vk;ksx }kjk n`f"Vckf/kr ijh{kkFkhZx.k ds fy, vyx ls iz'u i= rS;kj djkus dk fu.kZ; fy;k tk;sxk ogk¡ i`Fkd ls funsZ'k tkjh fd;s tk;saxsA ;fn vH;FkhZ ds izos'k i= esa dsVsxjh Blind/Low Vision fy[kh gqbZ gS] fdUrq vH;FkhZ ml Js.kh esa ugha vkrk gS vFkkZr og n`f"Vckf/kr gksus dk fpfdRldh; izek.k i= izLrqr ugha djrk gS] rks mls vU; lkekU; iz'u i= fn;k tk,xk ,oa ftldk fu.kZ; dsUnzk/kh{kd Lo;a ds Lrj ij djsaxsA"

On literal reading of the aforesaid clauses, it is clear that the

instructions were applicable in only those cases where the persons

suffering from disability seek facility of scribe from the RPSC.

These instructions do not apply in cases where a candidate

decides to bring his own scribe. It is not in dispute that

Respondent No. 1 had clearly stated in his application that he

would be bringing his own scribe. If that be the admitted position,

none of the provisions contained in the aforesaid instructions are

applicable to a candidate who is suffering from disability and has

chosen to bring his own scribe. Therefore, there was no

requirement for Respondent No.1 to inform the Centre

Superintendent a day before the examination. No other

instructions have been brought to our notice which show that in

case a candidate chooses to bring his own scribe, in that event

also, he is required to inform the Centre Superintendent a day

before the examination. In fact, Clause 10 clearly provides that

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those candidates, who have not disclosed disability in their

application form or not given any information for providing facility

of scribe to Centre Superintendent a day before the examination

or have not produced medical certificate, they would not be

entitled to the facility. The word, " lqfo/kk" (facility) which has been

used in Clause 10 refers to the facility of scribe to be provided by

the RPSC and it apparently has no application in a case where the

candidate brings his own scribe.

12. The requirement of bringing disability certificate for a

candidate who brings his own scribe is not reflected in any other

rules of examination brought to our notice or in any conditions,

instructions stated in the advertisement including Annexure R-1

appended with reply to writ petition filed by the appellant-RPSC,

on which heavy reliance has been placed by learned counsel for

the appellant-RPSC.

13. In the writ petition, Respondent No. 1-writ petitioner clearly

stated that he reached the examination centre at 9.00 A.M. In the

reply, stand of the appellant-RPSC is that Respondent No. 1

contacted in the office at examination centre at 9.45 A.M. The

appellant has failed to produce any register which records the

attendance of the candidates including Respondent No. 1 along

with time that he reported for examination at 9.45 A.M.

Therefore, there is no reason for this Court to disbelieve the

statement made by Respondent No.1. In case, even according to

the appellant, Respondent No. 1 reached examination centre 15

minutes before the examination, it is quite apparent that the

appellant was insisting to produce disability certificate and that

[2024:RJ-JP:11604-DB] (8 of 10) [SAW-198/2024]

was the operative reason for not allowing Respondent No. 1 to

appear in the examination.

Therefore, the findings recorded by the learned Single Judge

that there was no requirement of submitting disability certificate

as Respondent No. 1 had decided to bring his own scribe, in view

of our observations as above, are just and proper.

14. We find that Respondent No. 1, who is a person with

disability, was not treated with appropriate sensitivity by Centre

Superintendent. There could have been way out to ensure that

Respondent No. 1 appears in the examination. Nothing prevented

the authorities from allowing Respondent No.1 to write the

examination with the help of scribe. In the absence of there being

any provision in the advertisement that irrespective of whether a

candidate with disability has brought his own scribe or has sought

facility of scribe, production of disability certificate would be

necessary to allow him/her to appear in the examination,

insistence on a candidate suffering from disability to produce

disability certificate just before examination, if we may say so, is

completely illegal and atrocious. The writ petitioner is also present

in the Court and he is apparently blind. His certificates show that

he suffers from 100% vision disability.

15. Learned counsel for the appellant has strenuously urged

before us on the aspect of cost that according to the scheme of

the Act, first contravention only entails a fine of Rs. 10,000/-, that

too in a case, commission of offence is proved as provided under

Section 89 of the Act. It is only on repetition of violation that

fine/penalty could go up to Rs. 5,00,000/-.

[2024:RJ-JP:11604-DB] (9 of 10) [SAW-198/2024]

16. Present is not a case where this Court is dealing with a case

arising out of an order relating to proof of commission of offence

under the provisions of the Act. Present is a case where this Court

finds that because of lack of sensitivity and inappropriate dealing

with the candidate with disability, he was deprived from appearing

in a competitive examination to seek public employment. Denial

of proper treatment and disregard to rights of a disabled person is

a serious matter and more so, when it is as a result of wrong done

by the officials of the public institution. The legislative intent of

the Act aims at providing all facilities enumerated under the law

including reservation and other benefits to persons with disability

and officials of the public institutions dealing with persons with

disability are duty bound and obliged under the law to give proper

treatment and facilities to the persons with disability rather than

finding technical fault and denying their legitimate right on hyper

technical grounds. This is what has happened in the present case

and prompted learned Single Judge to impose cost upon the

RPSC.

The argument that if something wrong has been done,

Centre Superintendent is individually responsible, does not

absolve the RPSC of its responsibility as an examination

conducting agency, particularly when a candidate belonging to

disabled category has lost an avenue of public employment

because of the illegalities committed by those who were involved

in the process of conducting examination, working as an agent of

the RPSC.

17. We are, therefore, of the view that present is a classic

example of insensitivity in the matters of dealing with the persons

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with disability. The officials, who are involved in the process of

conducting examination and directly dealing with the persons with

disability are required to be properly trained and sensitised. For

this purpose, the RPSC is directed to issue comprehensive

directions to all the institutions and officials concerned in this

regard. The State Government is directed to ensure that

sensitisation programmes are periodically conducted for all those

who are dealing with the conduct of examinations so that the

situation which was created in the present case is not repeated in

future.

18. Subject to aforesaid observations and directions to the

respondents, we are not inclined to interfere with the order passed

by the learned Single Judge.