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Madhya Pradesh High Court · body

2014 DIGILAW 272 (MP)

Sunanda Kachhwar v. State of M. P.

2014-03-06

SUJOY PAUL

body2014
ORDER 1. The petitioner by invoking jurisdiction of this Court under Article 226 of the Constitution has challenged the order dated 18.7.2013 (Annexure P/1). By the impugned order, respondents rejected the candidature of the petitioner on the ground that her extent of disability is not more than 40%. 2. The petitioner submitted her candidature for the post of Contract Teacher Grade-3. The State Government has framed the Rules namely, Madhya Pradesh Panchayat Samvida Shala Shikshak (Appointment and Conditions of Contract) Rules, 2001 (for brevity “ Recruitment Rules”). The petitioner submitted her candidature in unreserved / handicapped category. The petitioner has filed the handicap certificate issued by the Medical Board on 17.7.2013. This certificate shows that the petitioner's disability is to the extent of 40%. The respondent issued a letter dated 9.7.2013 (Annexure P/6) to the petitioner intimating her that certificate produced by her is not issued by District Medical Board and therefore, appointment order has not been issued to her. This letter makes it clear that petitioner was selected on the post of Contract Teacher Grade-3. The petitioner, in turn, submitted the certificate Annexure P/7 which is issued by Medical Board on 17.7.2013. In turn, the respondent passed the impugned order and informed the petitioner that by aforesaid letter dated 9.7.2013 the petitioner was directed to produce the medical certificate issued by District Medical Board which must reflects her disability more than 40%. Petitioner's certificate reflects disability only up to 40% and therefore, it is not in accordance with Government directions. Petitioner's candidature is accordingly rejected. 3. Criticizing this order, Shri N.S. Kirar, learned counsel for the petitioner, drew attention of this Court on certain provisions of The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for brevity “ Disability Act”). 4. Per Contra, Shri Vivek Khedkar, Dy.A.G. for the State and Shri Nakul Khedkar, Advocate for the respondent No.5 supported the order by placing reliance on the Government instructions (Annexure R/5/2). It is contended that only those candidates who have more than 40% disability are eligible. It is submitted that since, admittedly, petitioner's disability is not more than 40%, as per Government instructions, aforesaid, petitioner is not eligible to secure appointment on the basis of said medical certificate. No other point is pressed by learned counsel for the parties. 5. I have heard learned counsel for the parties and perused the record. 6. It is submitted that since, admittedly, petitioner's disability is not more than 40%, as per Government instructions, aforesaid, petitioner is not eligible to secure appointment on the basis of said medical certificate. No other point is pressed by learned counsel for the parties. 5. I have heard learned counsel for the parties and perused the record. 6. The core issue in this case is whether the action of the respondents in denying the appointment to the petitioner for the reason that her extent of disability is not more than 40% is legal and justified? No doubt, the instructions Annexure R/5/2 prescribes that the certificate showing more than 40% disability issued by Medical Board would be acceptable. However, before dealing with this aspect, it is apt to consider certain provisions of the Disability Act. Section 2 (a) defines “ appropriate Government”. section 2 (a)(ii) of the said Act reads as under :- “(ii) In relation to a State Government or any establishment wholly or substantially financed by that Government or any local authority, other than a Cantonment Board, the State Government,” Section 2(k) of the Disability Act reads as under :- “2(k). “establishment” means a corporation established by or under a Central, Provisional or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;” 7. A combined reading of sections 2(a)(ii) and (k) makes it clear that Act would be applicable to Janpad Panchayat and on the respondents. Although the words “local authority” are not defined in the disability Act, it is defined in the Madhya Pradesh General Clauses Act, 1957. The definition reads as under :- “(20) “local authority” means a municipal corporation, municipality, local board, Janpad Sabha, Village Panchayat, or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund;” 8. A simple reading of applicability provision under the Disability Act read with definition of “local authority” makes it clear that the said Act is applicable in the matter of present recruitment. In the Recruitment Rules also respondents have made it clear that reservation would be subject to the provision of Disability Act. This is made clear in rule 6(b)(ii) of the said Rules. In the Recruitment Rules also respondents have made it clear that reservation would be subject to the provision of Disability Act. This is made clear in rule 6(b)(ii) of the said Rules. Thus, there is no iota of doubt that the Disability Act will apply in the present case with full force. 9. Section 2(t) of the Disability Act defines “ person with disability” which reads as under :- “2(t). “person with disability” means a person suffering from not less than forty per cent of any disability as certified by a medical authority;” 10. A bare perusal of this definition makes it clear like noon day that (a person suffering from not less than forty percent of any disability would be treated as “ person with disability”. The definition has employed the words “ not less than forty percent”. Petitioner's disability is to the extent of forty percent. It is not less than forty percent, thus as per statutory definition of “ person with disability” under the Disability Act, the petitioner's case is squarely covered. This is settled in law that in the event of any conflict between the statutory provision or executive instructions, it is the statutory provision which will prevail. Disability Act is a central Act which needs to be given effecto with full force. Thus, Annexure R/5/2 is of no help to the respondents. Respondents are bound to act in accordance with the Disability Act. 11. Thus, order impugned runs contrary to the said definitions of the Act and petitioner needs to be treated as disabled person. The respondents have erred in rejecting the case of the petitioner on the basis of Annexure R/5/2. Apart from this, appointment order issued to another candidate namely Surendra Kumar Sendra dated 8.7.2013 (Annexure P/8), shows that the respondents have prescribed the condition that if percentage of disability is found to be less than forty percent, appointment can be cancelled. Thus, while issuing appointment order, the percentage of disability was “not less than forty percent”. Thus, the respondents have committed an error in rejecting the claim of the petitioner. 12. As analyzed above, petition deserves to succeed. Resultantly, the order dated 18.7.2013 is set aside. The respondents are directed to consider her and if petitioner is otherwise eligible, appoint her on the post in question. Thus, the respondents have committed an error in rejecting the claim of the petitioner. 12. As analyzed above, petition deserves to succeed. Resultantly, the order dated 18.7.2013 is set aside. The respondents are directed to consider her and if petitioner is otherwise eligible, appoint her on the post in question. In the event petitioner is appointed, she be treated as appointed with her batch mates / candidates, who were appointed at relevant point of time and will get notional seniority and benefit of notional fixation of pay from the date of her retrospective appointment. However,in the facts and circumstances of the present case, petitioner shall not get any actual arrears from the date of retrospective appointment. 13. Petition is allowed to the extent indicated above. No costs.