Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 1408 (RAJ)

Parsa Ram S/o Shri Amra Ram v. State Of Rajasthan

2023-07-20

DINESH MEHTA

body2023
JUDGMENT : 1. Feeling aggrieved by the respondents’ action of not according him appointment even though his name appeared in the merit list, the petitioner has knocked at the doors of this Court. 2. The petitioner vied for the post of Physical Training Instructor Grade – III (hereinafter referred to as ‘PTI Grade – III’) pursuant to recruitment notification dated 04.05.2018 issued by the Rajasthan Staff Selection Board – respondent No.2. 3. Though, the petitioner has 40% disability in his vision, he submitted the application form as an ‘OBC candidate’ category and not as a ‘PH candidate’. 4. As petitioner’s name was not shown in the list of selected candidates, he preferred a writ petition being S.B. Civil Writ Petition No.680/2020. 5. A reply to the said writ petition was filed by the Selection Board & the State Government, wherein it was contended that the post was reserved for Locomotor Disability (LD/CP), whereas the petitioner belongs to visually impaired category (B/LV), hence, he was not recommended, rather the recommendation made was withdrawn. 6. In the first petition, the petitioner had come with a specific case that he had never applied under PH Category and during document verification, he had bonafidely produced his disability certificate. It was contended that the petitioner has secured more marks than cut off of his category (OBC-NCL), hence, appointment cannot be denied. 7. During the course of first round of litigation, the matter was deliberated in detail, whereafter the Section Board had come up with a stand that petitioner’s name has been recommended for appointment. On 11.11.2020, said writ petition thus, came to be disposed of with following observation and directions:- “In view of the fact that the Staff Selection Board has already recommended petitioner’s name, the proceedings of the present writ petition are hereby closed. Needless to observe that the respondent-State shall proceed in furtherance of the recommendations so made expeditiously preferably within a period of 12 weeks from today. If any of the petitioner’s grievance still persists, he will be free to take up appropriate remedies. The stay application also stands disposed of accordingly.” 8. It is noteworthy that the Selection Board had already issued a list dated 13.12.2019, whereby the names recommended by it had been recalled. If any of the petitioner’s grievance still persists, he will be free to take up appropriate remedies. The stay application also stands disposed of accordingly.” 8. It is noteworthy that the Selection Board had already issued a list dated 13.12.2019, whereby the names recommended by it had been recalled. Said list (placed at page No.67 of the instant writ petition) includes petitioner’s name, indicating that the petitioner having produced a certificate of disability showing 40% impairment in his vision was selected in ‘PH-BL category’ though no post for ‘BL category’ was reserved. 9. Mr. Dungawat, learned counsel for the petitioner invited Court’s attention towards copy of petitioner’s application form and highlighted that the petitioner had competed in the recruitment process as an OBC candidate and not as a ‘PH category’ candidate. He emphasized that the petitioner has admittedly secured more marks than the cut-off of his category (OBC-NCL) and argued that since the petitioner had neither claimed reservation as PH candidate nor any post was advertised for visually impaired candidates, the respondents could not have rejected petitioner’s candidature. 10. It was submitted by learned counsel for the petitioner that as abundant caution or maybe for the purpose of getting posting nearer to his place of residence, the petitioner bonafidely produced his disability certificate, but the same cannot be used to cancel his selection, which was not under ‘PH category’. 11. Mr. Sanadhya, learned counsel appearing for the Selection Board submitted that as far as Board is concerned, it had considered petitioner’s candidature as an ‘OBC candidate’, as he had secured more marks than the cut-off of his category but granting appoitment is in the domain of the State. 12. He submitted that it was only on account of objection raised by the Department of Secondary Education, petitioner’s selection was earlier canceled by the order dated 04.12.2019, whereafter the name was reiterated, as had been informed in earlier writ proceedings. 13. Mr. Choudhary, learned Government Counsel appearing on behalf of the State submitted that the job of PTI requires a higher level physical fitness and agility and considering the nature of job responsibilities that is essentially imparting physical training, the petitioner with 40% visual impairment cannot be appointed. 14. 13. Mr. Choudhary, learned Government Counsel appearing on behalf of the State submitted that the job of PTI requires a higher level physical fitness and agility and considering the nature of job responsibilities that is essentially imparting physical training, the petitioner with 40% visual impairment cannot be appointed. 14. He stated that in view of the nature of work attached to the post of PTI, the State has earmarked the post for the persons with locomotor disability as per the provisions of Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as ‘the Act of 2016’) by Minutes of Meeting dated 10.01.2020. He argued that when the post has been reserved for persons with locomotor disability, including cerebral palsy, muscular dystophy, etc. while excluding blind, hearing impaired, etc. candidates, a person with visual impairment is required to be excluded from appointment. 15. Heard learned counsel for the parties. 16. It is not in dispute that the petitioner did not claim any reservation under ‘PH category’ and has competed as an ‘OBC-NCL category’ candidate and he marched in the list of ‘OBC-NCL’ candidates at his own merit. 17. According to this Court, in the face of the order dated 11.11.2020 passed by this Court in petitioner’s earlier writ petition, it was not open for the State to deny appointment to the petitioner. When petitioner’s earlier writ petition was under consideration, the order dated 14.12.2019, was very much in existence. It is noteworthy that the Selection Board during the earlier proceedings having realised its mistake had recommended the petitioner’s case for appointment. The counsel for the State was also present and a clear direction was issued to the State to proceed in furtherance of the recommendation. No fresh order issued after 11.11.2020 has been placed on record in the present writ proceedings, on the basis whereof it could be said that the petitioner is not eligible to be appointed. 18. Maybe, the petitioner was having low vision to the extent of 40% and on basis of such disability, he cannot have claimed reservation as PH category candidate, but such disability by itself cannot be a reason to declare him unfit for appointment. 19. The respondents have non-suited the petitioner only on the basis of disability certificate produced by him without assessing his suitability to work as PTI Grade – III. 20. 19. The respondents have non-suited the petitioner only on the basis of disability certificate produced by him without assessing his suitability to work as PTI Grade – III. 20. That apart, this Court fails to understand that if a person having more than 40% locomotor disability is fit to discharge his duties as a PTI Grade – III which requires a great deal of mobility and physical activity, than how a person with low vision (40%) can be said to be unfit to discharge functions of a PTI Grade – III. Such determination can be made by a Medical Board by assessing a candidate objectively. 21. In the prima-facie opinion of this Court, the petitioner who is having a challenge in his one eye to the extent of 40%, cannot be out rightly rejected only because of the reason that such post (PTI Grade – III) has not been ear-marked/reserved for visually impaired person. 22. The impugned action of the State in denying appointment to the petitioner is clearly arbitrary and contrary to the spirit and mandate of the Act of 2016. 23. The Act of 2016 enjoins upon the State to give equal opportunity to the persons who are physically challenged, whereas the action of the State under challenge has been squarely contrary to the mandate of Act of 2016. 24. The following proceedings of the Minutes of the Meeting dated 10.01.2020 (page No.74) reproduced hereinbelow are clearly contrary to law:- ^^foHkkx }kjk mi;qZDrkuqlkj j[ks x;s rF;ksa ds vk/kkj ij lfefr }kjk loZlEefr ls ;g fu.kZ; fy;k x;k fd 'kkjhfjd f'k{k.k vuqns'kd Grade-II and Grade-III ds tkWc pkVZ ds vuqlkj budk dk;Z xfrfof/k vk/kkfjr gksus rFkk [ksydwn o fo|ky; esa vuq'kklu dh lqfuf'prrk dk gksrk gSA ¼1½ n`f”Vghu (B/LV) (ii) ewd cf/kj (HI) and (iii) I.D. (intellectual disability), M.I. (mental illness), S.L.D. (specific learning disability) and Austism oxZ ds fo'ks"k ;ksX;tu vk'kkfFkZ;ksa gsrq in vkjf{kr ugha j[ks tkosA fo'ks"k ;ksX;tuksa esa ls dsoy xfrfo”k;d fu%'kDrrk (locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystophy) Js.kh ds vH;fFkZ;ks ds fy, 4 izfr'kr vkj{k.k fn;k tkosA pyu fu%'kDrrk ds varZxr ,d gkFk] ,d iSj] ,d gkFk vkSj ,d iSj Js.kh ds fo'ks"k ;ksX;tu dk vkj{k.k dk ykHk ns; gksxkA^^ 25. The decision dated 10.01.2020, though was existing when petitioner’s earlier writ petition was pending, but there was no occasion for the Court to pronounce upon its legality, as the Selection Board had decided to recommend petitioner’s case. The same is, hereby, declared illegal and violative of petitioner’s Fundamental Rights guaranteed under Articles 14, 16 and 21 of the Constitution of India and contrary to the mandate of the Act of 2016. 26. According to Rule 13 of Rajasthan Educational Subordinate Service Rules, 1971 (herein after referred to as ‘the Rules of 1971’), a candidate has to furnish a certificate of fitness, including medical fitness at the time of giving joining. 27. The writ petition is allowed and impugned order dated 04.12.2019 (Annexure.10) and decision taken by the respondent No.3 in its Meeting dated 10.01.2020 in relation to PTI – Grade III (point No.4) are hereby quashed. 28. The State is directed to give appointment to the petitioner, subject of course to a condition that petitioner shall furnish a certificate issued by a Medical Board constituted by the Director/competent authority of All India Institute of Medical Sciences, Jodhpur, which shall assess the petitioner’s suitability to work as a PTI Grade – III, with the physical challenge he has. 29. The Board be constituted within three days of production of a certified copy of the order instant. The petitioner be informed about the date, time and place to present himself for the examination. 30. In case, the petitioner produces a certificate of fitness/medical certificate in terms of Rule 13 of the Rules of 1971, the respondent shall issue appointment order to the petitioner within a period of four weeks of producing the certificate. 31. The stay application also stands disposed of accordingly.