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2013 DIGILAW 314 (UTT)

PRATAP CHANDRA SONI v. STATE OF UTTARAKHAND

2013-06-12

Sudhanshu Dhulia

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JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. Sanjay Raturi, Advocate for the petitioner and Mr. Rakesh Thapaliyal, Advocate for the Uttarakhand Technical University and Mr. N. P. Sah, Standing Counsel for the State of Uttarakhand. 2. Since both the writ petitions involve common question of law and fact, both these writ petitions are being decided together by this common judgment. 3. However, for the sake of convenience, the facts related to WPSS No.219/2012 are being mentioned here. 4. The State Government had issued an advertisement dated 30.09.2010 calling for eligible candidates for appointment, inter alia, on the post of Assistant Teacher, L.T. Grade in Arts Groups. The total number of posts, which were available for the Scheduled Caste candidates were only 29 in Assistant Teacher, L.T. Grade in Arts. The petitioner being a physically challenged person applied for the post of Assistant Teacher L.T. Grade (Arts) as Scheduled Castes candidate. The petitioner appeared in the examination and scored 57.46 marks, which is cut off marks for qualifying in the examination. Out of the total number of posts of Assistant Teacher L.T. Grade (Arts), 2 posts were reserved for physically challenged candidate. 5. The contention of the petitioner is that he had applied under the physically challenged category as Scheduled Caste category. There were only 2 posts for the Scheduled Castes category for the physically challenged. They were only 2 physically challenged candidates who appeared in the examination, namely, the petitioner and one Manoj Kumar, who has been given appointment, but the petitioner has been denied the appointment. Feeling aggrieved, the present writ petition has been filed. 6. Vide interim order dated 28.02.2012 this Court had directed that the post on the petitioner was selected shall be kept vacant. In the counter affidavit, it has been stated that the “hearing impairment” cannot be considered as a disability and, therefore, the petitioner cannot be categorized as “physically challenged person”. On the other hand, the petitioner relies upon the provisions of Section 2(i), (l) & (t) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Act of 1995). On the other hand, the petitioner relies upon the provisions of Section 2(i), (l) & (t) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Act of 1995). The words “disability”, “hearing impairment” and “person with disability” define as follows:- (i) “disability” means - (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness; (l) “hearing impairment” means loss of sixty decibels or more in the better ear in the conversational range of frequencies; (t) “person with disability” means a person suffering from not less than forty per cent of any disability as certified by a medical authority;” 7. The petitioner has annexed his disability certificate issued by the Chief Medical Officer, Tehri Garhwal, which states that the petitioner is having 60% of disability of “hearing impairment”. In other words, as per the medical certificate annexed by the petitioner and the laws, the petitioner can be defined as “physically challenged person”. Moreover, the medical certificate also states that the physically challenged person would also mean that the person with hearing impairment/hearing disablement. The State Government has relied upon a Government Order dated 07.05.1999 passed by the erstwhile State of Uttar Pradesh, which states that such posts cannot be filled up from the physically challenged person, who is having disability of hearing impairment. This argument is absolutely misconceived in as much as the said G.O. is not applicable in the State of Uttarakhand. Moreover, it is admitted that out of the reserved posts for Scheduled Castes category, 2 posts have been filled up by the physically challenged person. It is admitted that the petitioner is a physically challenged person. The stand of the State Government is also in violation of the mandate of the Parliamentary Legislation (i.e. the Act of 1995), as it should be an endeavour of the State Government to create a barrier free environment for persons with disabilities. Therefore, the stand of the State Government is totally arbitrary. The writ petition succeeds and a mandamus is issued to the respondents to give appointment to the petitioner on the post of Assistant Teacher L.T. Grade in Arts within a period of four weeks from the date of production of a certified copy of this order. No order as to costs. 8. The writ petition succeeds and a mandamus is issued to the respondents to give appointment to the petitioner on the post of Assistant Teacher L.T. Grade in Arts within a period of four weeks from the date of production of a certified copy of this order. No order as to costs. 8. In view of the determination already made above, the writ petition No.466 of 2012 (S/S) is hereby allowed.