Rajasthan High Court - Jodhpur

Priya Patidar vs State Of Rajasthan (2024:Rj-Jd:41191) on 21 September, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:41191]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 13968/2024

Priya Patidar D/o Kailash Chandra Patidar, Aged About 26 Years,
R/o Village Barkheda, Post Swaroopganj, Tehsil Chhoti Sadri,
District Pratapgarh, Rajasthan.
                                                                         ----Petitioner
                                        Versus
1.        State Of Rajasthan, Through The Principal Secretary
          Medical And Health Department, Secretariat, Jaipur.
2.        The   Joint    Secretary,        Medical       And        Health   (Group-3)
          Department, Rajasthan, Udaipur.
3.        The Director, State Institute Of Health And Family Welfare
          Institution, Jaipur.
4.        The Director (Non-Gazetted), Medical And Health Service,
          Rajasthan, Jaipur.
                                                                      ----Respondents


For Petitioner(s)              :   Mr. Vikram Singh Bhawla
For Respondent(s)              :   Mr. N.S. Rajpurohit, AAG assisted by
                                   Mr. S.S. Rathore



                HON'BLE MR. JUSTICE FARJAND ALI

Order

21/09/2024

1. Heard.

2. The controversy involved in this case is squarely covered by

the order passed by the Division Bench of this Court in a batch of

Special Appeals led by D.B. Special Appeal (Writ)

No.572/2023 (State of Rajasthan Vs. Sunita) decided on

31.08.2024 and the same analogy has been followed and

reiterated by a Coordinate Bench of this Court in S.B. Civil Writ

Petition No.12658/2024 (Lokendra Singh Vs. State of

Rajasthan) decided on 09.09.2024 along with two other

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petitions. For the ready reference, the order passed in the case of

Lokendra Singh (Supra) is being reproduced as under:-

Heard learned counsel for the parties. Since, all the above three writ petitions are based on similar facts, therefore, the same are being heard and disposed of by this common order. However, for the sake of brevity, the relief sought for in S.B.Civil Writ Petition No.12658/2024 (Lokendra Singh V/s State of Rajasthan & Ors.) is reproduced as under:-

"(i) the impugned provisional selection list dated 05.07.2024 (Ann.9) may kindly be declared highly arbitrary, unjust and same may kindly be quashed and set aside to the extent of not selecting the PH category candidates.

(ii) the respondents may kindly be directed to conduct the re-medical examination of the petitioner.

(iii) the respondents may kindly be directed to provide appointment to the petitioner on the post of Pharmacist as per his merit in PH category."

Learned counsel for the petitioners submit that despite having a valid disability certificate issued by the competent authority, the petitioners are being subjected to re-examination by the Medical Board. Learned counsel submit that Division Bench of this court in a batch of Special Appeals led by D.B. Special Appeal (writ) No.572/2023 (State of Rajasthan & Ors. V/s Sunita) has decided the appeals filed by the State Government on 31.08.2024 in the following terms:-

"23. We find that the action(s) of appellant-State has resulted in exclusion of eligible and meritorious candidates belonging to the category of "persons with special abilities" and, therefore, the same is contrary to the purpose and object which the legislature intended to achieve by bringing these special beneficial enactments, that is, nondiscrimination, full and effective participation and inclusion in society and equality of opportunity.

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24. It is apposite to note here that Section 3 of the Act of 2016 mandates that the appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others. Thus, if the action of the appellantState in denying appointment to the respondents despite their percentage of disability of 40% or more being approved, based on the findings given by the Medical Board constituted with reference to Note-1 appended to Clause 3 and Clause (viii) of Para No.13 of the advertisement, in relation to minor deformity in other body parts is accepted, the same would counteract the object of the Act of 1995 and Act of 2016. The language used by the appellant-State in Clause 3 and Clause (viii) of Para 13 of the advertisement is required to be read in a manner that it fulfills the intention of the legislature and produces the intended result.

Issue No.2

25. There is no quarrel with regard to the respondents possessing requisites educational qualifications and registration with Rajasthan Nursing Council for appointment on the post of Nurse Grade II and Female Health Worker for the Non-TSP/TSP area against the notified vacancies.

26. As per the respondents, in conformity with Section 32 of the Act of 1995, a committee was constituted for identification of posts for different categories of disabilities. The said committee had taken a decision that the posts in question should only be filled with candidates having disability in one leg- OL. Indisputably, the respondents are claiming consideration of their candidature against the posts reserved for PH OL- one leg category. Learned Single Bench on 04.10.2020 at the time of preliminary hearing of the writ petitions, directed the respondents to appear before a Medical Board comprising of three doctors. The report furnished by the Medical Board established that the respondents are having permanent disability of more than 40% in one leg. However, Medical Board on examining the respondents, also found that the other leg/body part is also having some deformity such as shortening or weaker muscle strength.

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27. It is pertinent to note that learned Single Bench in order to ascertain the percentage of disability and the nature of disability suffered by the respondents directed one of the doctors who was member of the above mentioned Medical Board to remain present before the Court and recorded his statements in the following manner:

"32. During the Court proceedings, Dr. Imran Sheikh in unequivocal terms informed that the Board has given the report in the format provided to it by the respondents. It was fairly admitted by him that all the candidates, who appeared before the Board on 18.03.2020, were having at least 40% disability in one of their legs and in addition thereto, had little or more deformity in other leg, for which the Board has given the report dated 18.03.2020 and treated them to be PH- 'BL'."

28. The language of Section 2(t) of the Act of 1995 and Section2(r) and Rule 2(s) of the Act of 2016 is clear and unambiguous that reservation is to be extended to all the persons having disability to the extent of 40% or more.

29. A bare look at the disability certificates issued in favour of the respondents indicates that the percentage of disability expressed/disclosed by the doctors in the medical examination report(s)/disability certificate(s) issued in favor of the respondents is with reference to a particular leg/limb only. There is nothing on record to establish/indicate the percentage of disability suffered by the respondents in other leg/other body part. In the opinion of this Court, if a person is suffering from disability to a certain extent in other leg or body part the same by any stretch of imagination cannot be construed to mean that the candidate shall not be fit to perform his/her duty. Partial deformity/ shortening/ weakening of muscular strength in other body part would not render a person ineligible to be appointed on the advertised post, particularly when he/she is capable of performing all the duties and functions attached to the advertised post.

30. The intention of the legislation in bringing the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Rights of Persons with Disabilities Act, 2016 is to ensure full participation of the people with disabilities in public employment. A welfare state is under an obligation to ensure that the person suffering from disabilities should not be deprived from public

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employment despite their possessing eligibility and merit to hold the post on hyper-technical grounds or for ipse-dixit reasons. All-round efforts are required to be made to ensure that no opportunity is left out for integration of persons with special abilities into the social main stream to achieve the ultimate object of enacting aforementioned special legislations viz., all persons with special abilities shall get a dignified life full of equal opportunities without any discrimination.

32. In view of aforesaid discussion, the action of the appellant-State in denying appointment to the respondents under the PH category (PH-OL category) is declared bad in the eye of law.

33. We uphold the direction issued by the learned Single Judge to the appellant- State to prepare a fresh select/merit list for PH category by placing the eligible respondents at appropriate place in the select/merit list in their own category, keeping in view the observations recorded by this Court with respect to above issues.

34. The necessary exercise in conformity with this order shall be undertaken by the appellant- State within a period of 2 months from the date of this Judgment. No order as to costs."

Learned counsel for the respondents is not in a position to refute the submission made by learned counsel for the petitioners.

Resultantly, the present writ petitions are disposed of with a direction to the respondents to consider the case of the petitioners in the light of judgment rendered by Division Bench of this court in the case of State of Rajasthan V/s Sunita (supra).

3. In the present case also, the petitioner is a physically

handicapped person and after examination by the duly constituted

Medical Board, a disability card dated 22.11.2011 has been

issued in her favour by the Department of Social Justice and

Welfare, Govt. Of Rajasthan. The same is annexed with the

petition as Annexure-3.

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4. I have minutely gone through the certificate issued in favour

of the petitioner and even a glimpse of which makes it abundantly

clear that she has an amputated hand (45% locomotor disability).

5. In view of the above, the instant Writ Petition is allowed and

it is ordered that if the candidature of the petitioner is rejected on