The principle of reasonable accommodation and the positive obligation of the State to provide additional support to persons with disabilities to facilitate their full and effective participation in society.

JUDGMENT :

M.S. Sonak, J.

1. Mr. Gaurish Agni and Mr. Tanmai Gawas appear for the petitioner in Writ Petition No.430/2017 and Mr. Parikshit Sawant appears for the petitioner in Writ Petition No.437/2017.

2. Mr. Prashil Arolkar and Ms. Sapna Mordekar, learned Additional Government Advocates appear for the respondents in Writ Petition No.430/2017 and Writ Petition No.437/2017, respectively.

3. Learned counsel for the parties agree that both these petitions can be disposed of by a common judgment and order since substantially common issues of law and fact arise therein.

4. The petitioners in both these petitions challenge inter alia Memorandum dated 16.03.2017 (impugned memorandum) by which respondent no.2 (Superintendent of Police) withdrew offers of appointment to the posts of Scientific Assistant (Documents) and Scientific Assistant (Computer Forensics) in the Forensic Science Laboratory given to the petitioners vide Memoranda dated 18.10.2016 on the ground that the petitioners were "medically unfit” for the appointment to the said posts.

5. Mr. Agni and Mr. Sawant, in unison, submitted that the action of the respondents violates Articles 14, 16, and 21 of the Constitution of India. They submitted that the action of the respondents is also violative of the provisions of the Rights of Persons with Disabilities Act, 2016 (RPwD Act). They submitted that even otherwise the action of the respondents is vitiated by non-application of mind because reliance was placed upon inconclusive medical opinion and the most relevant document i.e. the note dated 17.01.2018 was attempted to be suppressed from this Court and in any case the same was completely ignored. They submitted that the relevant and valid material on record was ignored by the respondents and the action reflected in the impugned memoranda is contrary to several decisions of the Hon'ble Supreme Court inter alia on the aspect of discrimination against the differently-abled and the principle of reasonable accommodation i.e. now statutorily incorporated in the RPwD Act. They relied on several decisions that shall be referred to in the course of this judgment and order.

6. For all the aforesaid reasons Mr. Agni and Mr. Sawant submitted that these petitions may be allowed and the respondents be directed to appoint the petitioners as Scientific Assistant (Documents) and Scientific Assistant (Computer Forensics) together with all consequential benefits.

7. Mr. Arolkar and Ms. Mordekar learned Additional Government Advocates defended the impugned memoranda by submitting that this Court should ordinarily not second guess the medical reports given by an expert. They pointed out that this was not a case of appointment against reserved posts for the disabled as contemplated under Chapters VI and VII of the RPwD Act. They pointed out that the advertisement, the selection procedures, and the offer to the appointment made it clear that the entire process was in the context of the selection of general category candidates. They submitted that in such a situation there was no question of the petitioners claiming any special concessions or relaxations. They pointed out that the posts involved the discharge of duties of a very sensitive nature concerning criminal administration of justice and therefore the medical opinion that the petitioners were not quite fit to discharge these duties ought not to be overruled. They pointed out that the respondents had collected data from other States which also supported the action of the respondents.

8. Mr. Arolkar and Ms. Mordekar also pointed out that this is not a matter where the petitioners had obtained any disability certificate or any report of non-disability from the medical authority prescribed under the RPwD Act or the rules made thereunder. They submitted that there was no intention of suppressing any document from this Court and the final decision about unfitness of the petitioners was duly communicated to this Court. They relied on the list of duties that