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Rajasthan High Court · body

2000 DIGILAW 1398 (RAJ)

Asha Ram v. R. P. S. C.

2000-11-27

A.R.LAKSHMANAN, RAJESH BALIA

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Honble BALIA, J.–This appeal is directed against the order of learned Single Judge dated 29.4.98 in S.B. Civil Writ Petition No. 3993/89 by which the petition filed by the appellant was dismissed. (2). The facts giving rise to this appeal are that in pursuance of advertisement issued by the Rajasthan Public Service Commission, Ajmer, for holding the Joint Competitive Examinations for the post of Lower Division Clerks, applications were invited. The curriculum prescribed for the Joint Competitive Examination, 1986 reveals that different papers were prescribed for ordinary physically fit candidates and those who are physically handicapped. The compulsory paper for both category of candidates was General Hindi carrying 100 marks. The candidates other than handicapped persons were required to opt from the Hindi Typing Test or English Typing Test as the second paper and those who were physically handicapped candidates were to chose one of the two different set of papers namely General English or General Studies or General Knowledge i.e. to say the typing test was not necessary for physically handicapped candidates. An explanation was also attached to the curriculum giving meaning to expression ``physically handicapped, which is reproduced hereunder: ^^Li"Vhdj.k ¼1½ kkjhfjd :i ls fodykax ls vfHkizsr gS vkSj mlesa ,slk O;fDr lfEefyr gS ftlds fdlh ,d ;k nksuksa gkFkksa esa ,slk nks"k ;k fo:irk gS ftlls Vad.k esa O;o/kku gksrk gks ¼blesa vU/kk O;fDr Hkh lfEefyr gS½ ¼2½ bl izdkj kkjhfjd :i ls fodykax gksus ds izek.k Lo:i] vH;FkhZ ls vk;ksx dh ijh{kk esa lfEefyr gksus ds fy, viuk vkosnu izLrqr djrs le; ,d ,sls vf/kdkjh ls tks fd eq[; fpfdRlk ,oa LokLF; vf/kdkjh ls uhps dh jSd dk u gks] ,d izek.k i=k izLrqr djus dh vis{kk dh tkosxhA** (3). In pursuance of this advertisement, the petitioner applied for taking the Joint Competitive Examination, 1986 as a physically handicapped candidate. Alongwith the application he submitted a medical certificate dated 27.12.86 as Annex. 2 issued by Chief Medical & Health Officer, Ratangarh, District Churu, certifying that- `the petitioner is suffering from Ankalosia of Proxiwel Intephelangeal Joint of left middle finger medial deviation of left hand, he cannot type properly with left middle finger. (4). The petitioner was allowed to take examinations as a handicapped candidate under Roll No. 38452 with General Studies and General Knowledge as the second paper and he was declared to have passed the examination as per the result published on 19.4.1989. (4). The petitioner was allowed to take examinations as a handicapped candidate under Roll No. 38452 with General Studies and General Knowledge as the second paper and he was declared to have passed the examination as per the result published on 19.4.1989. However, the petitioner was informed by letter dated 29.8.89 (Annex.4) that on scrutiny of the form, it is found that the petitioner is not a physically handicapped person and, therefore, his selection has been cancelled. Aggrieved with this cancellation of the result vide the said communication Annex. 4 the petition was filed by the appellant on 20th Oct., 1989 on the grounds that the petitioner has fulfilled the requisite condition of being physically handicapped which disabled him to use his finger for typing as certified by competent authority and that the order has been made in breach of principles of natural justice inasmuch as no opportunity of hearing whatever was afforded before cancelling the result entitling the petitioner for selection to the post. No reason were assigned to reject the claim of the petitioner and the correctness of certificate. (5). The reply submitted to the petitioners challenge is that the certificate submitted by the petitioner did not in any way reveal that he was a handicapped person and could not be included in the category reserved for handicapped person so as to entitle him to take benefit under the reserved category for handicapped persons. It was also stated in the reply that certificate was not issued by appropriate authority and therefore the petitioner could not be included in the category of handicapped candidates and on the basis of marks obtained by him his name did not find place amongst general candidates. (6). The learned Judge dismissed the petition on the ground that since RPSC has considered the Certificate Annx. 2 and petitioner cannot be said to be a handicapped person, that finding cannot be challenged in a petition under Art. 226. (7). It has been contended by learned counsel for the appellant before us that on the face of it, petitioner-appellant has fulfilled all the requirements requisite for considering him as a candidate of handicapped category in view of the clear requirement stated in the curriculum extracted above. (7). It has been contended by learned counsel for the appellant before us that on the face of it, petitioner-appellant has fulfilled all the requirements requisite for considering him as a candidate of handicapped category in view of the clear requirement stated in the curriculum extracted above. It was stated in the advertisement in unequivocal terms that a physically handicapped person means and include who has such defect or deformity in his one or both hands which inhibits the candidate in typing and it also includes a blind. The curriculum also required the mode of verification of a candidates being a physically handicapped, who offer to take Joint Competitive of such candidate must be accompanied with a certificate to that effect issued by such medical officer who is not below the rank of Chief Medical & Health Officer. It was also pointed out by referring to Annex. 2, about the genuineness of which there is no dispute, that it has been issued by Chief Medical & Health Officer, Ratangarh and, therefore, it cannot be said that the certificate was not issued by an appropriate authority competent to issue such certificate. The certificate also discloses that the petitioner-appellant was suffering from such a defect or deformity in the joint of middle figure of his left hand which affects the typing capability of his middle finger of the left hand. Therefore, it is submitted by Mr. Bishnoi, learned counsel for the appellant, that the respondent Commission had cancelled the selection of the petitioner as a physically handicapped person on wholly untenable and non-existent ground without application of mind to the existing facts and the learned Single Judge erred in not considering the fact that denying the petitioner consideration for his appointment in the category of physically handicapped candidate on the basis of marks obtained as such in the Joint Competitive Examination, 1986 was wholly arbitrary and unjust affecting the rights of the petitioner under Art. 14 and 16 of the Constitution and the Court ought to have exercised its extra-ordinary jurisdiction to protect the petitioner from the breach of his fundamental rights. It was further pointed out by the learned counsel for the petitioner that the appointment in pursuance of 1986 examination have not yet finalised inasmuch as the matter of selection of 1986 Joint Competitive Examination has been subject matter of litigation and as late as on 16.9.1999 the Rajasthan Public Service Commission has issued Press Note which has been published in Rajasthan Patrika dated 20th Sept., 1999 inviting fresh applications from those candidates who have passed the Joint Competitive Examination, 1986 in pursuance of the directions issued to the State Govt. by the Supreme Court of India alongwith an affidavit in proforma annexed with the Press Note, and therefore, the petitioners case is liable to be considered by the respondents as a case of physically handicapped person who had passed 1986 examination by ignoring Annex. 4 which has been issued wholly arbitrarily denying the petitioner equal opportunity in the matter of employment notwithstanding that he has passed the examination of 1986 as a physically handicapped person, the category to which he belongs. The copy of aforesaid press note as published in Rajasthan Patrika was placed on record. (8). Mr. Joshi, learned counsel appearing for the Commission invited attention to the provisions of the Rajasthan Employment of Physically Handicapped Rules, 1976 particularly to Rule 2(v) and Rule 7 of which reads as under:- 2(v) ``Physically Handicapped means and includes the following categories of Physically handicapped persons:- (A) Blind:-The blind are those who are suffering from either of the following conditions:- (i) total absence of sight; and (ii) visual acuity not exceeding 6/60 or 20/200 (snellan) in better eye with correcting lenses. (B) Deaf and/or Mute:-(i) The deaf are those in whom the sense of hearing is non-functional for ordinary purpose of life. (ii) The mute are those who can not speak. (C) Orthopaedically handicapped:-The orthopaedically handicapped are those who have a major physical defect for deformity which cause an interference with normal functioning of bones, muscles and joints. Rule 7 of the Rules of 1976 reads as under: 7. Ascertaining the decree of disability and functional capacity of the Physically handicapped and relaxation from medical examination on appointment to Government Service. (C) Orthopaedically handicapped:-The orthopaedically handicapped are those who have a major physical defect for deformity which cause an interference with normal functioning of bones, muscles and joints. Rule 7 of the Rules of 1976 reads as under: 7. Ascertaining the decree of disability and functional capacity of the Physically handicapped and relaxation from medical examination on appointment to Government Service. (1) A certificate of the physically handicapped shall be obtained from the Medical Officer not below the rank of:- (i) A reader in the concerned speciality where there is a Medical College; and (ii) A Junior Specialist in the concerned speciality or Chief Medical & Health Officer at Places where there is no Medical College. (2) The certificate of disability required to be obtained under sub-rule (1) above shall be furnished by the Medical Officer in Form -II, Form -III, Form-IV and Form -V appended to these rules. (3) Such of the Physically Handicapped persons, who are appointed to any reserved or earmarked posts in any Government Department, shall not be subject to the usual Medical Examination provided in the respective Service rules on first entry into Government Service and the relevant Service Rules shall be deemed to have been amended to this extent. (9). Pointing out to the Form IV meant for orthopaedically handicapped, it was pointed out by the learned counsel for the respondent that Certificate Annex. 2 does not conform to the requirement of Rule 7 about the certificate to be in the prescribed form. It was contended by the learned counsel that definition of `Physically handicapped who are orthopaedically handicapped envisages such orthopaedic person who has a major physical defect or deformity which causes interference in the normal functioning of bones, muscles and joints. The certificate in question does not certify the petitioner-appellant to be orthopaedically handicapped person as defined under rule 2(V) inasmuch as it does not say that the petitioner suffers from any major physical defect or deformity which causes an interference with normal functioning of bones, muscles and joints. The certificate in question does not certify the petitioner-appellant to be orthopaedically handicapped person as defined under rule 2(V) inasmuch as it does not say that the petitioner suffers from any major physical defect or deformity which causes an interference with normal functioning of bones, muscles and joints. It was also urged faintly that Rule 5 of the Rules of 1976 provides for registration of physically handicapped persons with the designated agencies and as the petitioner did not hold a certificate from a designated agency of the area with the Director of Employment, Rajasthan to be included in the list of disabled persons, the petitioner cannot be considered to be an applicant in that category and therefore his claim has rightly been rejected. It was also urged by the learned counsel for the respondent that since the matter relates to the selections required to be made in pursuance of Joint Competitive Examinations, 1986, the petition itself was filed belatedly after three years in 1989 and now almost 14 years have elapsed, no relief can now be granted to the petitioner in respect of such concluded process of employment. (10). Having given our anxious consideration to the rival contentions and material placed before us, we are of the opinion that the appeal as well as the writ petition merit acceptance. Rules of 1976 are piece of beneficial legislation to ameliorate the conditions of physically handicapped persons and to make employment opportunities available to them atleast to a minimum level. It is in furtherance of this objective the reservation for physically handicapped persons for appointment to the post in subordinate ministerial and class IV services have been envisaged and it has envisaged rela-xation of physical and medical standards for physically handicapped persons. While including blinds in the category of physically handicapped category, specific conditions have been prescribed as to the level of blindness which brings case of any candi-date within the category so also in the category of deaf and/or mute. The criterion has also been laid down and so also for the orthopaedically handicapped it has been stated that a major physical defect or deformity which causes interference in the normal functioning of bones, muscles and joints. Thus, the guideline is clear that any default or deformity which interferes with normal functioning of any joint; muscle or bone, is considered as major defect or deformity u/R.2(v) as orthopaedic handicapped. (11). Thus, the guideline is clear that any default or deformity which interferes with normal functioning of any joint; muscle or bone, is considered as major defect or deformity u/R.2(v) as orthopaedic handicapped. (11). It may be seen from perusal of Annex. 2 that no reason has been assigned for stating that on scrutiny petitioner was not found a physically handicapped. Reasons have been sought to be supplied in the reply. One reason stated by the respondent was that the certificate was not by an appropriate authority. It was explained that. `the petitioner is required to submit the certificate from appropriate authority viz. Employment Exchange or office of the Employment Exchange, Reader or Junior Specialist of the Medical College. The petitioner submitted the certificate of Chief Medical & Health Officer, which also does not declare that the petitioner is a handicapped person. (12). The certification of such handicap has been left under Rule 7 to be certified by the Medical Officers of different levels. Clause (ii) of sub Rule (1) of Rule 7 clearly envisages Chief Medical & Health Officer at a place where there is no medical college as an appropriate authority who can issue a certificate of physically handicap for the purposes of the Rule. Annex. 2 is a certificate issued by the Chief Medical & Health Officer of Ratangarh where undisputedly there is no medical college. This contention raised in the reply filed in the writ petition in this regard has not been persued by the learned counsel for the respondent and in our opinion rightly so in view of the clear provisions of Rule 7 as well as the clear requirement of the certificate required to be filed alongwith the application in the curriculum produced hereinabove. Therefore, atleast one of the contentions raised in reply to the writ petition was patently incorrect, needing no argument. It has not been satetd even in the reply why Chief Medical & Health Officer was not the appropriate authority. From Rule 7 quoted above, one wonders wherefrom the requirement of Employment Exchange in the matter of issuing certificate has been picked up. A physical condition can only be certified by a medical man and that is what the Rule 7 provides by designating different rank of Medical Officers who are the appropriate authority for issuing such certificate which includes Chief Medical & Health Officer also. A physical condition can only be certified by a medical man and that is what the Rule 7 provides by designating different rank of Medical Officers who are the appropriate authority for issuing such certificate which includes Chief Medical & Health Officer also. It nowhere envisages that such certificate could be issued by Employment Exchange. However, it was contended by learned counsel for the respondent that unless the petitioner was registered as handicapped candidate with any Employment Exchange, he is not entitled to avail the benefit of the certificate issued by Appropriate Authority. Attention was invited to Rule 5, which reads as under:- ``5. Central Registry for physically Handicapped:-The Director, Social Welfare Department shall make proper arrangements through the agencies such as Investigators, Social Welfare Inspectors, Assistant Probation Officers etc. of the Social Welfare Department for registering Physically disabled persons coming under the purview of sub-rule (v) of rule 2 of these rules & for finding opportunities of Employment to such person. The information in the District having been collected through the aforesaid agencies, the list of disabled persons shall be conveyed to the Director of Employment, Rajasthan, Jaipur, where a Special Cell would function under a Deputy Director for registration and issue of identity card. Alternatively a Physically Handicapped person may also apply for his registration directly either to the Director of Employment, Rajasthan, Jaipur or through any of the officers working in the area where he resides. (13). A perusal of aforesaid rule reveals that it does not authorise the Employment Exchange to issue any such certificate. Rule 5 only enables the Employment Exchange to register the case of physically handicapped in the area on the basis of information collected by Social Welfare Department and conveyed to it, and enables the Social Welfare Department to collect such information about handicapped persons with an object of making suitable employment opportunities for such persons. Requirement to submit certificate remains under Rule 7 and that requires a certificate by a competent medical officer and not of Employment Exchange, inasmuch as registration with Employment Exchange, which is on the basis of information furnished by Social Welfare Department, may or may not be on the basis of such certificate. (14). Annex. 2, the certificate issued by the Chief Medical & Health Officer, Ratangarh, Distt. (14). Annex. 2, the certificate issued by the Chief Medical & Health Officer, Ratangarh, Distt. Churu, reads as under:- ``MEDICAL CERTIFICATE Certified that Shri Asha Ram son of Shri Dula Ram Jat aged 22 years, Resident of Melusar (Teh. Sardarsahar) District Churu has been suffering from Ankylosis of Proxiwel Intephelangeal Joint of Left Middle Finger medial Deviation of left hand. He cannot type properly with left middle finger. Mark of Identification : Scar 1/2 x 1/3 on the lower 1/3 Left leg medically. Place -Ratangarh Dage : 27.12.86 Sd/- Chief Medical & Health Officer, Ratangarh (Dist. Churu). (15). The certificate clearly indicates the nature of defect in the `joint of left middle finger which is a vital organ for the functioning of the hand and the joint is obviously the joint of bones. The defect or deformity in the joint of middle finger has interfered with normal functioning of the finger of left hand affecting functional ability with the normal functioning of the joint is further certified by pointing out that the petitioner cannot type properly with left middle finger. The fact that the certificate has not reproduced the language of the definition of Orthopaedically handicapped given in Rule 2(v), in our opinion do not make the certificate to be invalid or unworkable. In the matter of beneficial legislation, form cannot be allowed to overtake the substance. What is required under the rule is that a certificate must be issued by an appropriate authority to the effect that a person is physically handicapped and that he has such major defect or deformity which causes interference with normal functioning of bones, muscles and joints. If the certificate discloses that the petitioner has a defect or deformity of joint which causes interference with the normal functioning affecting his functional utility of that organ, mere absence of the language, in our opinion, cannot invalidate the certificate which could enable the Commission to overlook the certificate issued by the appropriate authority to come to its own conclusion about the question whether the person is physically handicapped or not. The Commission is not an expert in medicinal science to opine on that. The task has been left to the appropriate authorities not below the rank of Chief Medical & Health Officer where medical college is not situated. The Commission is not an expert in medicinal science to opine on that. The task has been left to the appropriate authorities not below the rank of Chief Medical & Health Officer where medical college is not situated. Moreover, in the context of requirement of job for which advertisement has been issued and curriculum has been formulated by the Commission itself, clearly gave out what major defect or deformity affecting the interference with normal functioning of bones, muscles and joints shall mean in the context of job opportunity offered. Ordinarily, the curriculum require a candidate aspiring for the services of Lower Division Clerk to pass the test in General Hindi as well as in Typing. However, for the physically handicapped candidate, relaxing that requirement it was specifically ordained that if a candidate has any defect or deformity in one or both hands which causes interference with the functional utility of the hand in typing, he is included in the category of physically handicapped persons for the purposes of taking such Joint Competitive Examination and it also clearly postulated as certificate to that effect from an officer not below the rank of Chief Medical & Health Officer. Even the learned counsel for the respondent could not contend that the certificate Annx. 2 was not in conformity with the requirement given in the curriculum by the Commission for taking the said examination. The fact that it was made clear that any handicap which affects the typing ability of one or both the hands would be included in the definition of Physically Handicapped person to enable him to opt for the additional paper meant for the physically handicapped persons, leaves no room for doubt that on the basis of certificate issued by Chief Medical & Health Officer, Ratangarh that the petitioners defect in the middle finger of the left hand rendered it incapable of typing, conforms to the requirement of the provisions of the rules and the curriculum both and there was no reason for the Commission to have rejected the candidature of the petitioner as a physically handicapped person and consider his case as a General Candidate. Annex. Annex. 4, in our opinion, cannot be sustained on any ground disclosed in the reply, even if the respondents are permitted to supply reason for their order not disclosed therein, inasmuch as the petitioner having fulfilled all the requirements for considering him as a physically handicapped person, has been denied such consideration on untenable and non-existent grounds, such denial results in denying the petitioner equal opportunity in the matter of employment in breach of Article 16 of the Constitution and such case having been made out, we are of the opinion, this Court was not under a duty as a sentinel gui viv to exercise its extra-ordinary jurisdiction to protect the petitioner from breach of his fundamental right and relief could not be denied merely by referring conclusions reached by the Commission on non-existent grounds on its ipse dixit. (16). Lastly, it has been contended by Mr. Joshi, learned counsel for the respondent that the petitioner was guilty of laches and since the process of selection in terms of 1986 Joint Competitive Examination is over long back and more that 14 years have elapsed since then, it would not now be appropriate to grant any relief to the petitioner. In our opinion, in the facts of the present case this conclusion cannot be sustained for denying the relief to the petitioner. Firstly, the petitioner cannot be held guilty of any laches. Notwithstanding the nomenclature of examination as Joint Competitive Examination 1986, the same has taken place in 1989 and result was declared only in April 1989 in which the petitioner was declared successful. It was only vide Annex. 4 dated 29.8.89 that petitioner was taken out of the candidature as physically handicapped and he has promptly approached this Court in Oct. 1989. The petitioner has shown all promptness in pursuing his remedy. The petitioner, has pointed out that the issue of settling the matter of appointment in pursuance of 1986 Joint Competitive Examination has not been settled at least until the Press Note dated 16.9.99 was issued by the Commission in pursuance of the directions of the Honble Supreme Court inviting applications once again from all those candidates who had passed in 1986 Joint Competitive Examination for the post of Lower Division Clerks. The petitioner, in fact, has been declared passed in the first instance in the examination taken by him as a physically handicapped person in September 1989 however, his result has been cancelled vide Annex. 4 on wholly untenable grounds as discussed above and the process of giving appointment in pursuance of that selection was still in fluid condition as late as in 1989, we see no reason to deny to the petitioner relief for consideration of his case appropriately as a physically handicapped candidate in pursuance of the result which he had obtained in the Joint Competitive Examination 1989 for Lower Division Clerk on the ground of passage of time. (17). As a result, we allow this appeal, set aside the judgment of the learned Single Judge and allow the writ petition. The order of the Commission, cancelling the selection of the petitioner as physically handicapped candidate vide Annex. 4, is quashed and the respondents are directed to consider the case of the petitioner in pursuance of his selection as physically handicapped candidate in Joint Competitive Examination 1986 for the post of Lower Division Clerk and give him appointment if otherwise found suitable and eligible to be appointed in terms of the result obtained by him, within a period of six weeks.