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2023 DIGILAW 673 (RAJ)

Yogesh Kumar Saini v. State of Rajasthan

2023-03-14

SUDESH BANSAL

body2023
JUDGMENT 1. Heard the petitioner present in person as also Learned Additional Advocate General appeared on behalf of respondents and perused the material on record. 2. By way of instant writ petition filed under Article 226 of the Constitution of India, petitioner has led claim of his appointment on the post of Teacher Grade III Level I under LD/CP disabled category pursuant to advertisement No.01/2021-22 dated 31.12.2021. 3. Petitioner states that according to the disability certificate dated 13.01.2020 issued by the Department of Medical and Health, Government of Rajasthan (Ann-4), it stands proved that the petitioner suffers from Locomotor disability and in his diagnosis, his case is of amputation at right thumb, index and middle finger and it has been certified that the petitioner suffers from 41% permanent physical disability in his right hand. According to the petitioner, he posses the requisite educational qualifications and has secured 127 marks in Rajasthan Eligibility Examination for Teachers (REET) 2021; in the final selection list dated 02.05.2022 (Ann-9) for the post in question, the last cut-off marks under LD/CP disabled category is 125 marks, therefore, petitioner being higher in merit than last cut-off, is entitled for appointment. However, appointment to the petitioner has not been accorded by respondents. Petitioners states that respondents arbitrarily and illegally ousted the petitioner from the selection process at the stage of documents verification vide office order dated 13.05.2022 (Ann-10) issued by the Chief Executive Officer, Zila Parishad, Barmer stating that by Medical Board of respondents, the permanent disability of petitioner has been found 35% only, which is less than the required benchmark disability of 40%. Petitioner has challenged office order dated 13.05.2022 stating that the disability certificate of petitioner, issued by the Department of Medical and Health, Government of Rajasthan as per rules showing 41% permanent disability is valid and since petitioner has scored higher marks than the last cut-off marks in the category of LD/CP, not according appointment to petitioner in this category is violation of Article 14 and 16 of the Constitution of India. 4. From perusal of record, it appears that on issuance of notice of writ petition, learned AAG on behalf of respondents accepted notices and in presence of both parties as also after placing reliance on the interim order dated 26.05.2022 passed in SBCWP No.6852/2022: Megha Dave Vs. State of Rajasthan and interim order dated 18.05.2022, passed in SBCWP No.5931/2022: Usha Tamoliya Vs. State of Rajasthan and interim order dated 18.05.2022, passed in SBCWP No.5931/2022: Usha Tamoliya Vs. State of Rajasthan passed by the Rajasthan High Court at Principal Seat at Jodhpur following interim order was passed on 12.07.2022: 'In the meanwhile, the petitioner may appear before the Medical Board to be constituted by Superintendent, SMS Hospital Jaipur on 19.07.2022 and it would be required of the Medical Board to examine for disability as claimed and sent the requisite report to this Court in the sealed cover. It is made clear that if petitioner fails to appear before the Medical Board as ordered, it will be deemed that certificate issued by the Medical Board constituted by respondent(s) is correct. Office is directed to send the copy of this order to Superintendent, SMS Hospital, Jaipur for compliance.' 5. It appears that under directions of this Court, the Superintendent, SMS Hospital, Jaipur constituted a Medical Board of six experts to examine the physical disability of petitioner according to notification of the Department of Social Justice and Empowerment. The Medical Board, examined the petitioner, who appeared before the Medical Board as ordered by this Court and it has been reported by the Medical Board that petitioner suffers from Locomotor disability, amputation through right thumb, index and middle finger and suffers from permanent disability of 45%. The report of Medical Board dated 27.07.2022, placed on record by learned Additional Advocate General appearing on behalf of respondents, was taken on record by this Court vide order dated 23.09.2022. Having considered the report of Medical Board, wherein the permanent disability of petition is above than benchmark disability of 40%, this Court vide order dated 23.09.2022 directed respondents to keep one post vacant in the category of petitioner. 6. In reply to the writ petition, filed by respondents on 22.12.2022, it has not been disputed that against vacancies notified for the post of Teacher Grade III Level I under the Rajasthan Panchayati Raj Rules, 1996, vide advertisement dated 31.12.2021, petitioner had submitted online application form and participated in the selection process in the category of Specially Abled person. It has not been disputed that for the documents verification of petitioner, he was allotted Zila Parishad, District Barmer. It has not been disputed that for the documents verification of petitioner, he was allotted Zila Parishad, District Barmer. Respondents have taken a plea that during course of document verification, complaints were received regarding manipulation and forgery in the physically handicapped certificate of some candidates, therefore, as per the letter/order dated 09.05.2022, issued by the Elementary Education Department, letter was written to the Chief Medical and Health Officer of the concerned District to examine physically handicapped certificate of 36 candidates and to verify their disability. In pursuance thereof, the Medical Board consisting three expert Doctors of CMHO, District Barmer examined the disability of petitioner and found the permanent physical disability of petitioner 35%. The disability certificate, issued by the Board of three Doctors constituted under the instruction of Elementary Education Department is enclosed with the reply as Ann-2. It has been submitted by respondents that since the Medical Board constituted by respondents came to the conclusion that physical disability of the petitioner is less than 40%, therefore, the candidature of petitioner was rejected and his name was rightly shortlisted in the list/office order dated 23.05.2022 (Ann-10) and with such plea the prayer of petitioner in the writ petition has been opposed by respondents, placing reliance on the disability certificate of petitioner issued by the Medical Board constituted by respondents. 7. Having heard the rival contentions and on perusal of the material on record, at the outset, this Court finds that the Medical Board constituted under the directions of this Court, consisting six experts of the field have examined the disability of petitioner in accordance with the notification issued by the Department of Social Justice and Empowerment and has found the physical disability of petitioner 45%. The report of Medical Board dated 27.07.2022, placed on record by the counsel for respondents is available on record and this report of Medical Board has not been questioned by either of the parties. When the original report dated 27.07.2022 of Medical Board was taken on record on 23.09.2022, this Court had issued directions to supply copy of the report of Medical Board to counsel for both parties. 8. When the original report dated 27.07.2022 of Medical Board was taken on record on 23.09.2022, this Court had issued directions to supply copy of the report of Medical Board to counsel for both parties. 8. It may be noticed that in the advertisement dated 31.12.2021, in clause 12.5, it is indicated that reservation to the physically handicapped disabled persons shall be available according to notification dated 23.01.2019, issued by the Department of Social Justice and Empowerment and the reservation to candidates shall be accorded according to the Rajasthan Rights of Persons with Disabilities Rules, 2018 (hereinafter 'the Rules of 2018'). A perusal of the Rules of 2018 shows that in Rule 2 (i), 'Act' means the Rights of Persons with Disabilities Act, 2016 (hereinafter 'the Act of 2016') and Rule 2(ii), 'Certificate' means certificate of disability issued by certifying authority referred to Sub-Section 1 of Section 57 of the Act of 2016. Chapter 10 of the Act of 2016, deals with certification of specified disabilities. As per Section 100 of the Act of 2016, the Central Government has power to make Rules, which have been formulated and notified in gazette as the Rights of Persons with Disabilities Rules, 2017 (hereinafter 'the Rules of 2017') and under Section 101 of the Act of 2016 powers lying with the State to make rules, which have been formulated by the Government of Rajasthan called as the Rajasthan Rights of Persons with Disabilities Rules, 2017. 9. Section 2(r) of the Act of 2016, defines 'Person with benchmark disability' which reads as under: '2(r) Persons with benchmark disability means a person with not less than 40% of specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms as certified by the Certifying Authority.' 10. Section 58 of the Act of 2016, provides procedure for issuing certificate of disabled and Section 59 envisages provision of appeal, against a decision of certifying authority. Similar provision is enshrined under the Rules of 2017. Rule 19 of Rules of 2017 reads as under: '19. Section 58 of the Act of 2016, provides procedure for issuing certificate of disabled and Section 59 envisages provision of appeal, against a decision of certifying authority. Similar provision is enshrined under the Rules of 2017. Rule 19 of Rules of 2017 reads as under: '19. Certificate issued under Rule 18 to be generally valid for all purposes:- A person to whom the certificate issued under Rule 18 shall be entitled to apply for facilities, concessions and benefits admissible for persons with disabilities under the schemes of Government and of the Non-Governmental Organizations funded by the Government.' 11. It may be noticed here that it has not been disputed in the present case that petitioner suffers from permanent disability of Locomotor, having a case of amputation at right thumb, index and middle finger. The Government of Rajasthan, Department of Medical and Health, has issued a disability certificate dated 13.01.2020, certifying the disability of petitioner to be of 41% (Ann-4), whereas the Medical Board constituted under the CMHO, District Barmer by respondents, has also noticed the same disability of petitioner but disability certificate has been issued to be of 35% (Ann-R/2). 12. It may be worthy to take note that there is nothing on record before this Court that disability certificate dated 13.01.2020 issued to petitioner by the Competent Authority of the State Government of Rajasthan, was ever challenged by way of appeal or revoked in accordance to the procedure prescribed under the Act of 2016 as also under the Rules of 2017. Respondents, in the reply has not specified that what kind of compliant in respect of the disability certificate of petitioner dated 13.01.2020 was received. Respondents have stated an omnibus averment that complaints were received regarding manipulation and forgery in the physically handicapped certificates of some candidates. It appears that merely on the basis of anonymous complaints of general nature, and without any challenge to the disability certificate of petitioner, issued by the Government of Rajasthan before the appellate authority under the Act/Rule, respondents have ordered to constitute a fresh Medical Board at District level to verify and re-examine the physical disability of petitioner and on the basis of disability certificate, issued by such Medical Board, from Doctors of CMHO, Barmer, showing disability of petitioner as 35%, candidature of petitioner has been rejected ignoring the disability certificate produced by the petitioner. At this juncture, it would be apposite to refer that the learned Single Judge of the High Court in case of Anadu Vs. State of Rajasthan: SB Civil Writ Petition No.104/2020 and other connected writ petitions decided vide judgment dated 15.12.2020, has examined the issue as to whether the respondents were justified in subjecting the petitioner and other candidates to medical examination during the process of document verification? The Court having adverted to terms and conditions applicable in the case, observed that 'in considered opinion of this Court, the medical examination before selection was required to be done only for candidates, who had applied under disability/PH category and did not possess the certificate issued by Competent Authority but if candidate who having a certificate issued by Competent Authority, his/her examination by the Medical Board was not required.' On this analogy, this Court is of the opinion that medical certificate of petitioner certifying his disability as 41% and issued by the Competent Authority of Government of Rajasthan cannot be/should not be brushed aside in this way and unless is found forged or is not revoked by the competent authority as per law, remains lawful and valid, as such is not liable to be ignored. 13. In addition, it may be noticed that when under directions of this Court, a Medical Board consisting six experts have given a report dated 27.07.2022 after identification and examination of petitioner that petitioner suffers from 45% disability and is eligible under the PH category, such report of Medical Board is also required to be given acceptance and due credence. It is true that this Court is not suppose to sit as an Appellate Authority or authority to review/verify the medical reports issued by the Competent Authority of the Government or by the Medical Board of the recruitment agency and the scope of interference by the Courts in exercise of powers under writ jurisdiction, in the matters relating to assessment of fitness/disability of a person by Medical Board, constituted under the statutory rules, is obviously extremely limited, nevertheless, not completely shut out. In appropriate cases, to prevent occurrence of injustice and to prevent the abuse of scheme of reservation, it is open for Courts to exercise the powers of judicial review considering the facts and circumstances of case within parameters of judicial imprimatur. In appropriate cases, to prevent occurrence of injustice and to prevent the abuse of scheme of reservation, it is open for Courts to exercise the powers of judicial review considering the facts and circumstances of case within parameters of judicial imprimatur. In the present case, this Court has already exercised powers to take additional evidence on record, in view of two conflicting disability certificates of petitioner, one issued by the competent authority of Government of Rajasthan and another issued by the Medical Board of respondents, issued directions vide order dated 12.07.2022 in presence of both parties to constitute a Medical Board; Further the Medical Board consisting of six experts have been constituted by the Government Hospital in accordance with the notification of Department of Social Justice and Empowerment to examine the disability of petitioner, there is no good reason to ignore and brush aside the Medical report dated 27.07.2022, more particularly when same has not been questioned by either of the parties. 14. This Court, placing reliance upon the report dated 27.07.2022 of Medical Board wherein the disability of petitioner has been noticed as of 45%, with the similar Locomotor disability of amputation in right thumb, index and middle finger as noticed in both medical certificates one placed on record by petitioner (Ann-4) and another placed on record by respondents (Ann-2), is of the considered opinion that on the basis of this Medical Report dated 27.07.2022 as well, petitioner is eligible and entitled for consideration of his candidature, in the category of disabled/PH persons for appointment on the post of Teacher Grade III Level I pursuant to advertisement dated 31.12.2021. Such report of medical board dated 27.07.2022, also deserves to be accepted, requires to be given due credence and be treated as authentic. 15. This Court finds support to its opinion from the judgment passed by the Patna High Court in case of Vibhash Raj Vs. The Union of India [2007 (2) BLJR 2250] wherein the High Court allowed the writ petition, accepting the report of newly constituted Medical Board under the directions of the Court. 15. This Court finds support to its opinion from the judgment passed by the Patna High Court in case of Vibhash Raj Vs. The Union of India [2007 (2) BLJR 2250] wherein the High Court allowed the writ petition, accepting the report of newly constituted Medical Board under the directions of the Court. Even the objection of respondents against the report were turned down with finding that once respondents had not raised any objection at the time of issuing the order by the Court for constitution of new Medical Board for re-examination of petitioners and the new Medical Board has given its report in terms of directions and now entire exercise have been completed. It is not open for respondents to challenge the report of newly constituted medical board. Reliance may also be placed on the judgment of Division Bench of Calcutta High Court, dated 10.03.2021 delivered in MAT No.83 of 2021: Koushik Paul Vs. Union of India wherein the certificate of Medical Board, constituted under orders of the Court, was taken on record as an additional evidence and after giving due credence and credibility to such certificate, respondents were directed to consider the candidature of appellant-petitioner for appointment, if otherwise qualified. 16. Before closing the judgment, this Court deems it just and proper to take note of the fact that in the case at hand, this Court issued directions to constitute the Medical Board to examine the physical disability of petitioner vide order dated 12.07.2022, in presence of counsel for both parties and after placing reliance on the interim order dated 26.05.2022 passed in case of Megha Dave (supra). It may be noticed that in that writ petition, after receiving the report of Medical Board in compliance of directions of Court, same was relied upon by the High Court but since physical disability of petitioner was opined by the Medical Board as 4%, the writ petition was dismissed on this sole ground. Thus, the report of medical board, constitute under orders of the High Court was relied upon. Thus, the report of medical board, constitute under orders of the High Court was relied upon. Similarly, in case of Uma Tamoliya (supra) wherein, in compliance of the interim orders of Court dated 18.05.2022, the constituted Medical Board at AIIMS Jodhpur after examination of petitioner opined that the disability of petitioner was 1.3%, the Hon'ble High Court dismissed the writ petition finally on merits vide order dated 05.07.2022; only relying upon the report of Medical Board noticing her physical disability less than 40%. 17. For the discussion and reasons made hereinabove, in view of undisputed fact that the petitioner has secured 127 marks in REET 2021 and the last cut off marks in the PH category LD/CP remained 125 marks, obviously the petitioner stands higher in merit and is entitled for appointment. One post was already directed to be kept vacant, therefore, respondents are directed to issue appointment order to petitioner on the post of Teacher Grade III Level I in PH LD/CP category forthwith. It is hereby observed that notional service benefits like seniority, increment, pay fixation to petitioner shall be accorded from the date of appointment to less meritorious person in the final selection list dated 02.05.2022 of the present recruitment process. However actual benefits to the petitioner shall be accorded from the date of his appointment. No Costs. 18. The writ petition stands succeed and allowed on the aforesaid terms. 19. Stay application and other pending application(s), if any, also stand disposed of.