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2005 DIGILAW 321 (RAJ)

LIC v. Lalit Kumar

2005-02-03

DINESH MAHESHWARI

body2005
Judgment Rajesh Balia, J.-Heard learned Counsel for the parties. 2. This appeal is by the Life Insurance Corporation (hereinafter called the Corporation) non-petitioner in the writ petition before the learned Single Judge. 3. The Corporation had advertised certain vacancies for recruitment in the month of September, 1992 which included 61 posts of Assistants. Out of 61 posts, 3% of the vacancies were reserved for handicapped persons. The respondent-petitioner has applied for recruitment against handicapped quota. He is suffering from Polio which has affected his both legs. His name is also registered with Rozgar Sewa Nideshalaya (Central Physically Handicapped Registration Cell). The undisputed fact is that 3% posts were reserved. Against advertised posts, 93 recruitments were made on the post of Assistants, 3 posts ought to have been filled from amongst handicapped persons but only one post was so filled. When the vacancy reserved for handicapped persons has not been filled against handicapped quota, the petitioner-applicant filed the writ petition seeking a mandamus that the non-petitioner be directed to consider his case for appointment, against reserved quota for the handicapped, on the post of Assistant. .4. Substance of all the successive affidavits filed by the respondents is that the petitioner could not be considered as an eligible candidate of physically handicapped category because he did not fall in the category of physically handicapped to be appointed on the post of Office Assistant. According to the Corporation as per Circular dated 02.04.1992 regarding appointment of physically handicapped candidates wherein the jobs for which the physically handicapped candidates can be considered for appointment were specified. Job of Assistant is identified for physically handicapped falling in the category of deaf and dumb and orthopaedically handicapped . The job of Assistant is a job of clerk and in the remarks column it has been stated as under:- .(i) O.H. With disability of one hand. .(ii) Persons with deformities of spine and chest. .(iii) Deaf with hearing aid; (v) Dumb. 5. It is on this premise that since the petitioner did not fall in any of the above said category as disability of leg (one leg or both) have not been included in disability criterion, the case of the petitioner-respondent for consideration amongst the physically handicapped candidates for the post of Assistant could not be considered. 6. 5. It is on this premise that since the petitioner did not fall in any of the above said category as disability of leg (one leg or both) have not been included in disability criterion, the case of the petitioner-respondent for consideration amongst the physically handicapped candidates for the post of Assistant could not be considered. 6. The learned Single Judge referred to the definition of disabilities given under Rajasthan Employment of Physically Handicapped Rules, 1976 which enumerates (a) Blind (b) Deaf and/or Mute (c) Orthopaedically Handicapped as the disabilities. A person suffering from these disabilities is considered to be a physically handicapped Orthopaedically Handicapped are those who have a major physical defect or deformity which causes an interference with normal functioning of bones, muscles and joints. On this premise, it was found by the learned Single Judge that the definition of disability is very clear. A polio affected person is that handicapped person who has a major physical defect or deformity which causes an interference with normal functioning of bones, muscles and joints and thus the petitioners name could not have been ignored on the ground that he was not eligible for being not incurring the disability as prescribed by some executive instructions of the respondents as enumerated in Annexure Rule 5-A. With these findings, the learned Single Judge has allowed the writ petition on the admitted facts that two vacancies of Assistants reserved for Physically Handicapped have remained unfilled and only one has been filed by general category candidate. It was directed that the petitioners case be considered for appointment to the post of Assistant against the quota reserved for physically handicapped and offer him the job without any further delay. The petitioner was further held to be entitled to all the benefits accruing to him had he been not ignored and been offered the job at the initial stage alongwith other disabled person. 7. The contention of the learned Counsel for the parties proceed on the same lines as before the learned Single Judge. 8. We have noticed that the type of handicap which has been identified for the post of Assistant includes Orthopaedically Handicapped. 7. The contention of the learned Counsel for the parties proceed on the same lines as before the learned Single Judge. 8. We have noticed that the type of handicap which has been identified for the post of Assistant includes Orthopaedically Handicapped. The remark column of Annexure Rule 5-A does not say whether it is detailing the eligibility criterion or a matter of preference to be given to the handicapped candidate falling in a particular category amongst the physically handicapped, on everything being found equal. 9. Even if it be assumed that remark column restricts the eligibility criterion to such class of handicaps only then for in the absence of any such clear demarcation and considering the fact that Orthopaedically Handicapped candidates are eligible for the post of Assistant (Clerk) which is primarily desk work and considering that totality of the details made in remark column relating to the post of Stenographer, Telephone Operator, Typist, Banda Machine Operator, Punch Card Operator and Sweeper other than Assistant (Clerk), it is noticed that in all categories, a person handicapped with certain disability has been shown eligible for the posts in the eligibility criterion, then it does not say for any reason that a person handicapped with leg or legs is to be excluded from being considered. 10. Therefore, looking to the requirements of the post, it appears more reasonable to consider that remark column is meant for giving preference amongst handicapped persons having orthopaedic problems and persons confined with such disability as detailed in remark column may be given preference. This construction of Rule 5-A commends itself to be reasonable and furthers the cause of justice as has been done by the learned Single Judge. 11. Reference may be made of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It being a central enactment and the LIC being a public sector corporation established under law enacted by Parliament has to abide by all the Statutes made by the Parliament. 11. Reference may be made of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It being a central enactment and the LIC being a public sector corporation established under law enacted by Parliament has to abide by all the Statutes made by the Parliament. The disability defined in the Act of 1955 includes locomotion disability amongst others and locomotion disability in Section 2 in its reading means "disability of the bones, joints of muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy." Thus, viewed from the rules as framed by the Rajasthan State, the Central Enactment and Annexure Rule 5-A, it cannot be said to be rendering the petitioner ineligible for the post. The vacancy being available against which the petitioner could be considered, the directions issued by the learned Single Judge cannot be faulted with. 12. However, in the facts and circumstances, we allow this appeal to the extent that the learned Single Judge awarded the cost of Rs. 2000/-and cost is made easy through-out. The interim order stands vacated. The Judgment of the learned Single Judge shall be given effect to within a period of three months. 13. Accordingly, the appeal stands dismissed subject to modification of the impugned order regarding costs as indicted above.