Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1313 (MP)

SIDDHARTH SHRIVASTAVA v. STATE OF M P

2008-11-11

A.K.PATNAIK, AJIT SINGH

body2008
Judgment ( 1. ) THESE writ petitions are being disposed of by this common order because common questions of law arise for decision in all these writ petitions. ( 2. ) THE relevant facts briefly are that the Madhya Pradesh Public service Commission (for short the MPPSC) published an advertisement dated 4-3-2007 inviting applications for recruitment to 240 posts of Civil Judge Class ii. In the advertisement, it was indicated that 2% of the 240 posts advertised, which works out to 5 posts, are reserved for orthopaedically handicapped persons. In response to the advertisement, the petitioners who claim to be orthopaedically handicapped persons filed applications along with certificates showing the percentage of disability suffered by them. After the written test and interview, they were selected and placed in the merit list of orthopaedically handicapped candidates by the MPPSC. The MPPSC then sent the merit list of orthopaedically handicapped candidates along with other merit lists to the State government for appointment. When the recommendations of the MPPSC of the selected candidates were before the State Government, representations were received that some of the petitioners were not entitled to be appointed to the posts reserved for orthopaedically handicapped persons considering the percentage of disability suffered by them. ( 3. ) OUT of the first five candidates in the merits list of orthopaedically handicapped candidates, Siddharth Shrivastava and Krishna Gopal Rathore were found by the State Government to be not suffering 40% disability whereas the meaning three candidates were found to be suffering from more than 40% disability. As a consequence, the State Government declined to appoint siddharth Shrivastava and Krishna Gopal Rathore to the post of Civil Judge class II reserved for orthopaedically handicapped persons and Siddharth shrivastava and Krishna Gopal Rathore have filed W. P. No. 6722/2008 and w. P. No. 8751/2008 (S), respectively challenging the aforesaid decision of the state Government. Abhilash Jain and Ku. Babita Hora have filed W. P. No. 1777/2008 and W. P. No. 9114/2008 respectively claiming that in the event siddharth Shrivastava and Krishna Gopal Rathor are not appointed against two posts of Civil Judge Class II reserved for orthopaedically handicapped persons, the State Government should appoint them in the two posts as they are orthopaedically handicapped persons with 40% disability. Babita Hora have filed W. P. No. 1777/2008 and W. P. No. 9114/2008 respectively claiming that in the event siddharth Shrivastava and Krishna Gopal Rathor are not appointed against two posts of Civil Judge Class II reserved for orthopaedically handicapped persons, the State Government should appoint them in the two posts as they are orthopaedically handicapped persons with 40% disability. Ashish Persai has also filed W. P. No. 12405/2008, and his case is that on account of interim order passed by this Court restraining the State Government from making any appointment to the post reserved for physically handicapped persons, he has not been issued with appointment order although his position is 133 in the merit list. Mohd. Aslam Dehalvi has filed W. P. No. 374/2008 claiming that considering the marks secured by him in the selection conducted by the MPPSC, he is entitled to be appointed on a post reserved for orthopaedically handicapped person. Dharam Pal Singh Punia has filed W. P. No. 10337/2008 making a similar claim that he is entitled to be appointed to one of the posts reserved for orthopaedically handicapped persons. ( 4. ) WE have heard Mr. V. S. Shroti, learned Senior Counsel for the petitioner in W. P. No. 6722/2008, Mr. Satish Bagadia, learned Senior Counsel for the petitioner in W. P. No. 1777/2008, Mr. R. K. Samaiya, learned Counsel for the petitioners in W. P. No. 9114/2008 and W. P. No. 10337/2008 (S), Mr. Aditya sanghi, learned Counsel for the petitioners in W. P. No. 374/2008 (S) and W. P. No. 12405/2008 and Mr. Dileep Pandey, learned Counsel for the petitioner in w. P. No. 8751/2008 (S ). We have also heard Mr. V. K. Shukla, learned Deputy advocate General and Mr. K. S. Wadhwa, learned Counsel appearing for the mppsc. ( 5. ) WE find that in the advertisement dated 4-3-2007 published by the mppsc, the candidates applying to the posts of Civil Judge Class II reserved for orthopaedically handicapped persons were required to submit certificate of the chief Medical Officer/civil Surgeon in support of their claims that they were orthopaedically handicapped persons and the MPPSC on being satisfied on the basis of such certificate issued in favour of the candidates has treated them as orthopaedically handicapped persons and placed them in the merit list of candidates for appointment to the posts reserved for orthopaedically handicapped persons. We further find that because of representations submitted to the State Government by some of the candidates belonging to orthopaedically handicapped person category, the Stage Government has cancelled the appointments of Siddharth Shrivastava and Krishna Gopal rathore on the basis of materials that were available to the State Government. Thereafter, the State Government has got the candidates examined by a State medical Board comprising experts and found that out of five candidates, siddharth Shrivastava and Krishna Gopal Rathore did not have 40% disability and therefore they are not entitled to be appointed to the posts reserved for orthopaedically handicapped persons. The petitioners, on the other hand, have relied upon certificates that they furnished to the MPPSC to show that they suffered from 40% disability and have claimed that they are entitled to be appointed to the posts of Civil Judge Class II reserved for orthopaedically handicapped persons. We are, however, of the considered opinion that neither the certificates furnished by the petitioners nor the opinions of the Medical board relied upon by the State Government can be considered for appointing persons to posts reserved for orthopaedically handicapped candidates for the reasons which we will now give. ( 6. ) UNDER clause (1) of Article 16 of the Constitution, the right to equality of opportunity is guaranteed to all citizens in matters relating to employment or appointment to any office under the State. The State could however make a reservation of a percentage of posts for persons with disability in any establishment of a State. Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the Act) makes such reservation in favour of persons with disability, but to ensure that such provision of reservation in favour of persons with disability are not abused and only persons with disability as defined in the Act are appointed to such posts reserved for persons with disability, various provisions have been made in the Act. Persons who do not satisfy the requirements of the act therefore cannot be treated as persons with disability and cannot be considered for appointment to post reserved for persons with disability. ( 7. Persons who do not satisfy the requirements of the act therefore cannot be treated as persons with disability and cannot be considered for appointment to post reserved for persons with disability. ( 7. ) CLAUSES (i), (o), (p), (s) and (t) of Section 2 and sub-section (1) of section 73 of the Act which are relevant for deciding this batch of cases are quoted here in below:- " (i) "disability" means- (i) Blindness; (ii) Low vision; (iii) Leprosy cured; (iv) Hearing impairment; (v) Locomotor disability; (vi) Mental retardation; (vii) Mental illness; (o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy; (p) "medical authority" means any hospital or institution specified for the purposes of this Act by notification by the Appropriate government; (s) "notification" means a notification published in the Official gazette; (t) "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority. 73. Power of appropriate Government to make rules.- (1) The Appropriate Government may, by notification, make rules for carrying out the provisions of this Act. " ( 8. ) THUS, clause (i) of Section 2 defines "disability" and locomotive disability has been included in such definition of disability. Clause (o) of Sectipn 2 defines "locomotor disability" to mean disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. Orthopaedically handicapped persons are thus persons with locomotor disability. Clause (t) of Section 2 of the Act defines "persons with disability" to mean a person suffering from not less than 40% of any disability as certified by a medical authority. Clause (p) of Section 2 of the Act defines "medical authority" to mean any hospital or institution specified for the purposes of the Act by notification by the Appropriate Government. Clause (s)of Section 2 of the Act states that notification means a notification published in the Official Gazette. Sub-section (1) of Section 73 of the Act provides that the appropriate Government may, by notification, make rules for carrying out the provisions of the Act. Clause (s)of Section 2 of the Act states that notification means a notification published in the Official Gazette. Sub-section (1) of Section 73 of the Act provides that the appropriate Government may, by notification, make rules for carrying out the provisions of the Act. For reservation of posts for persons with disability and appointment to such posts by the State Governemnt, the State Government has to make the rules by notification and in such rules the State Government can specify the hospital or the institution as the medical authority which will certify persons suffering from not less than 40% of any disability. Such medical authority as indicated in clause (p) of Section 2 of the Act may be either a. hospital or an institution. ( 9. ) IN accordance with these provisions of the Act, the State government has made the Persons with Disabilities (Equal Opportunity, protection of Rights and Full Participation) Rules, 1996 (for short the Rules ). Rule 4 of the Rules which is relevant, is quoted here in below: "4. Authorities to give Disability Certificate. (1) Disability Certificate shall be issued by a Medical Board duly constituted by the Central and the State Government. (2) The State Government may constitute a Medical Board consisting of at least three members out of which at least one shall be a specialist in the particular field for assessing locomotors visual including low vision/hearing and speech disability, mental retardation and leprosy cured, as the case may be. " It is clear from Rule 4 quoted above that a disability certificate has to be issued by different Medical Boards constituted by the State Government consisting of District Health Officer, two medical specialists nominated by the civil Surgeon (with atleast one specialist from the field of concerned impairment) and the Medical Officer of the Municipal Authority. Thus, Medical board though not a hospital is an institution and is specified as Medical authority for the purposes of the Act under the Rules duly notified by the State government. ( 10. ) IT is not disputed by the State Government that after enactment of the Act and after making of the Rules, Medical Boards with the composition as indicated in Rule 4 of the Rules have not been constituted by the State government in any of the districts of the State of Madhya Pradesh. ( 10. ) IT is not disputed by the State Government that after enactment of the Act and after making of the Rules, Medical Boards with the composition as indicated in Rule 4 of the Rules have not been constituted by the State government in any of the districts of the State of Madhya Pradesh. But as we have seen from clauses (p) and (t) of Section 2 of the Act and Rule 4 of the rules, it is only a Medical Board as constituted under Rule 4 with the composition stated therein which can issue a disability certificate to a person and it is only such persons suffering from not less than 40% disability as certified by medical Board who can claim to be a person with disability entitled to be considered for appointment to a post reserved for persons with disability. ( 11. ) WE are thus of the opinion that the State Government should immediately constitute Medical Boards under Rule 4 of the Rules and such medical Boards will examine the candidates who have been placed in the merit list for appointment to the posts of Civil Judge Class II reserved for orthopaedically handicapped persons. Candidates will be entitled to place all materials available with them before the Medical Board in support of their claim of 40% disability. In case any of the five selected candidates is examined and not certified by the Medical Board to be suffering from 40% of disability, a candidate whose merit positions is below the first five candidates will be accordingly examined by the Medical Board so constituted under Rule 4 of the Rules and considered by the State Government for appointment to such post reserved for the orthopaedically handicapped person. ( 12. ) WE accordingly dispose of this batch of writ petitions with a direction to the State Government to constitute Medical Boards in accordance with Rule 4 of the Rules within a period of one month of receipt of certified copy of this order and thereafter for the selected candidates and, if necessary, the wait listed candidates amongst the orthopaedically handicapped persons examined by the Medical Boards so constituted and after considering the reports of the medical Boards take a final decision on the recommendations made by the mppsc within a period of two months from receipt of a certified copy of this order. It is needless to say that as and when any orthopaedically handicapped person is appointed pursuant to these directions, he will be given his seniority in accordance with his placement in the merit list dated 17-12-2007 issued by the mppsc and in accordance with the relevant rules and he will not be denied his seniority on the ground that his appointment was delayed because of pendency of the case before this Court.