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2022 DIGILAW 2471 (BOM)

Sameer Bhiku Naik v. State of Goa

2022-11-30

BHARAT P.DESHPANDE, M.S.SONAK

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JUDGMENT M.S.SONAK, J. - Heard Mr A.D. Bhobe for the Petitioner, Mr Deep Shirodkar for respondents no.1 & 3 and Mr Dattaprasad Lawande for respondent no.2 (GPSC). 2. Rule. The rule is made returnable immediately at the request of the learned Counsel for the parties. 3. The Petitioner complains about his non-selection to the post of 'Assistant Agricultural Officer', a position reserved for persons with disabilities. There is no dispute that a petitioner is a person with a permanent disability to the extent of 43%. Moreover, this position has been duly certified by Goa Medical College, the prescribed Authority. 4. On 24/6/2022, the GPSC issued an advertisement inviting applications for the posts of 'Assistant Agriculture Officer', which included two positions reserved for persons with disabilities. Regarding the selection process, the Petitioner was required to appear for a Computer Based Recruitment Test (CBRT)/screening test held on 1/10/2022. 5. The Petitioner secured 54.6% marks at the CBRT. The GPSC selection guidelines prescribe that a reserved category candidate to be considered for further selection process must secure at least 55% marks at the CBRT. 6. Relying upon the above guidelines, the GPSC did not invite the Petitioner to attend an interview or participate in the further selection process. Mr Lawande pointed out that one more candidate had applied to the reserved post and secured only 30% marks at the CBRT. 7. Mr Lawande admitted that the reserved post for 'Assistant Agricultural Officer' was advertised on no less than five occasions. Unfortunately, no suitable candidates were available and could be selected. He points out that this is the fifth occasion on which an advertisement was issued. 8. The records show that the post was advertised four times in the past and the GPSC could not secure a suitable candidate to fill the reserved posts. The records also show that the Petitioner secured 54.6% at the CBRT. 9. The Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training, Government of India, has issued an Office Memorandum dtd. 15/1/2018 on the issue of Reservation of Persons with Benchmark Disabilities. This Office Memorandum has been adopted by the Directorate of Social Welfare, Government of Goa. This is clear from the Office Memorandum dtd. 8/8/2018. 10. Clause 11 of the above Officer Memorandum reads as follows: "11. 15/1/2018 on the issue of Reservation of Persons with Benchmark Disabilities. This Office Memorandum has been adopted by the Directorate of Social Welfare, Government of Goa. This is clear from the Office Memorandum dtd. 8/8/2018. 10. Clause 11 of the above Officer Memorandum reads as follows: "11. RELAXATION OF STANDARD OF SUITABILITY : 11.1 If sufficient number of candidates with benchmark disabilities candidates are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for them provided they are not found unfit for such post or posts. However, this provision shall not be used to allow any relaxation in the eligibility criteria laid down for the issuance of certificate of disability. 11.2 Same relaxed standard should be applied for all the candidates with Benchmark Disabilities whether they belong to Unreserved/SC/ST/OBC. No further relaxation of standards will be considered or admissible in favour of any candidate from any category whatsoever." 11. Thus, the GPSC and the State Government have sufficient powers to relax the suitability standard where a sufficient number of benchmark disability candidates are not available based on the general standards to fill all the vacancies reserved for them. 12. In the peculiar facts of this case, where the GPSC advertised the reserved post on not less than five occasions and the fact that the Petitioner has secured 54.6% marks at the CBRT, Mr Lawande, based on instructions, states that the GPSC will exercise the powers of relaxation and permit the Petitioner to take part in the further selection process, that is an interview for selection to the reserved post. This means that the GPSC will consider the Petitioner as successful in the CBRT by exercising powers of relaxation in the peculiar circumstances of this case. 13. The above approach of the GPSC would be consistent with the provisions of Sec. 3 of the Rights of Persons with Disabilities Act, 2016, quoted below, which concerns equality and non-discrimination. Sub-sec. (1) of Sec. 3 provides that the appropriate Government shall ensure that the persons with disabilities enjoy the right ot equality, life with dignity and respect for his or her integrity equally with others. Sub-sec. Sub-sec. (1) of Sec. 3 provides that the appropriate Government shall ensure that the persons with disabilities enjoy the right ot equality, life with dignity and respect for his or her integrity equally with others. Sub-sec. (2) of Sec. 3 provides that the appropriate Government shall take steps to utilise the capacity of persons with disabilities by providing appropriate environment. Sub-sec. (3) of Sec. 3 provides that no person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned Act or omission is a proportionate means of achieving a legitimate aim. Sub-sec. (5) of Sec. 3 provides that the appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities. 14. The expression "reasonable accommodation" is defined in Sec. 2(y) and reads as follows : "reasonable accommodation" means necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others. 15. The Petitioner is certified to suffer from 43% disability arising out of a united fracture lateral condyle left femur. Moreover, the post for which he was being considered is reserved for persons with disabilities. Therefore, upon cumulative consideration of all these peculiar factors, we think the GPSC is justified in exercising the power of relaxation vested in it. 16. Accordingly, we are inclined to grant some relief to the Petitioner, though not in the entire terms he claimed. Instead, by moulding the relief, we direct the GPSC, consistent with the relaxation granted by it, to consider the Petitioner as passed in the CBRT and interview him for selection to the post of 'Assistant Agricultural Officer' (reserved post). This process should be completed within a month from today. 17. The rule is made absolute in the above terms. There shall be no order for costs. 18. All concerned are to act on an authenticated copy of this order.