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Orissa High Court · body

2010 DIGILAW 215 (ORI)

Judhistir Ray v. State of Orissa

2010-03-26

B.P.DAS, V.GOPALA GOWDA

body2010
ORDER 26.03.2010 — Heard learned counsel for the petitioner and the learned Government Advocate. The petitioner claiming to be a physically handicapped person has approached this Court seeking for issuance of a direction to opposite parties to extend him the benefit of exemp¬tion of deposit of EMD & ISD. Case of the petitioner is that he is a disabled person in terms of the definition contained in Section 2(t) of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called, the “Act”), he is entitled to get the benefit of exemption of deposit of EMD & ISD at the time of submitting the tender papers. To substantiate his claim, the petitioner has filed disability certificate issued by the District Medical Board, Puri under Rule 4(2) of the Per¬sons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996 and as per the guidelines issued by the Ministry of Welfare, Government of India published in Government of India Gazette dated 6th August, 2008 (Annexure-1), certifying that the percentage of disability of the petition¬er is 50. The further case of the petitioner is that the opposite parties at the time of submitting the tender papers insisted the petitioner to deposit the E.M.D. and I.S.D. at the time of sub¬mission of the tender papers which he, being a physically handi¬capped person in terms of Section 2(t) of the Act, is not liable to deposit the EMD & ISD. The aforesaid benefit has been denied by the opposite par¬ties placing a strong reliance on the Resolution dated 8.11.1991 issued by the Engineer-in-Chief-cum-Secretary to the Government of Orissa in the Works Department. Clause (ii) of the said Reso¬lution speaks that such physically handicapped ‘D’/’C’ Class Contractors may be exempted from payment of E.M.D. and I.S.D. In Clause (i) of the said resolution it has been provided that any deaf or orthopaedically handicapped person having disa¬bility maximum upto 40% who is considered capable of delivering goods properly may be enlisted as a contractor. But as per the definition under Section 2(t) of the Act, “person with disability” means, a person suffering from not less than 40 per cent of any disability. If any person suffering from more than 40 per cent disability as certified by the Medical Board, such person can also be termed as “physically disabled person”. But as per the definition under Section 2(t) of the Act, “person with disability” means, a person suffering from not less than 40 per cent of any disability. If any person suffering from more than 40 per cent disability as certified by the Medical Board, such person can also be termed as “physically disabled person”. The object of the Act is not to restrict in extending the benefit to the persons suffering maximum upto 40% and dispense with the persons having more than 40% disability. The object and intendment of Universal Declaration of Human Rights, 1948 to which Union of India was a party, is to render assistance as well as to provide equal opportunity to the physi¬cally disabled persons. It is also relevant to make an observation that the Resolution of State Government referred to above was passed much prior to the coming into force of the Act and therefore it will have no overriding effect on the provisions of the Act. In that view of the matter, action of the opposite parties insisting the petitioner to pay EMD & ISD at the time of submis¬sion of the tender papers is unreasonable, arbitrary and contrary to Section 2(t) of the Act. We therefore, allow the writ petition and direct the opposite parties to accept the tender papers of the petitioner without insisting on deposit of EMD & ISD. Urgent certified copy of this order be granted on proper application. Petition allowed.