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IN THE HIGH COURT OF JUDICATURE AT PATNA
Purnendu Singh, J.
Durgesh Kumar S/o Sri Raj Kumar Gupta - Petitioner
Versus
The State of Bihar and ors. - Respondents
Civil Writ Jurisdiction Case No.2673 of 2021
Decided On : 28-04-2025
Service Law – Appointment – Petitioner in final result obtained less marks than the marks obtained by the respondent no. 6 and was not declared successful – However, the respondent no. 6 was issued admit card contrary to the terms and condition contained in clauses 9 and 10 of the advertisement – Respondent no. 6 produced temporary disability certificate, which was invalid on the last date of submission of form – The various rules, circular and provisions of Disabilities (Equal Opportunities) Right of Person with Disabilities Act, 2016 and the terms of the advertisement has not been fulfilled – In the facts of the case, the cut-off date can be no other date except the last date of filling of the application in terms of the advertisement – Thus, the act of the Commission has led to discriminate the petitioner, who suffered from permanent disability – The declaration of the result of respondent no. 6 is on merits of marks obtained at different stages of selection, however, the Commission committed error at the stage of scrutiny of application form in respect of disability certificate submitted by respondent no. 6 – Respondents directed to according appointment to the petitioner on the post of lecturer in vocal music (Arts and Crafts) within 8 weeks – However, in view of facts and circumstance that subsequently the respondent no. 6 has been able to produce permanent disability certificate, though after the process of selection had completed, the respondents may find to work out in the interest of justice to adjust him if any vacancy is left considering that he has been allowed to work for four years but the same will not at the cost of employment of the petitioner – Petitioner is liable for payment of Rs. 20,00,000/- and cost of Rs. 20,000/- to be paid by B.P.S.C. – Writ petition disposed off. (Paras 23, 24, 26, 27, 29, 40, 46, 49 and 50)
| Table of Content |
|---|
| 1. selection criteria based on valid disability status (Para 2 , 20) |
| 2. legislation ensuring non-discrimination for persons with disabilities (Para 3 , 5 , 6 , 12) |
| 3. reservation for benchmark disability in employment (Para 8 , 15 , 19) |
| 4. criteria for permissible relaxation of eligibility conditions (Para 16 , 28 , 33 , 34) |
| 5. validity of submitted documents and eligibility criteria enforcement (Para 26 , 30 , 32) |
| 6. court's authority to grant relief due to discriminatory practices (Para 38 , 46 , 49) |
JUDGMENT :
Purnendu Singh, J.
Heard Mr. Shankar Kumar Thakur, learned counsel appearing on behalf of the petitioner; Mr. Madanjeet Kumar, learned GP-20 for the State; Mr. Nikesh Kumar, learned counsel for the Bihar Public Service Commission and Mr. Vijay Shanker Shrivastava, learned counsel for the respondent no. 6.
2. In continuation of order dated 08.04.2025 and before I proceed to decide the case, the issues involved in the present writ petition are whether (i) selection based on a non- valid (expired) disability certificate is legally sustainable? (ii) Whether a candidate with permanent disability has superior claim over the temporary disabled persons under the persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the "Act, 1995") or the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the "Act, 2016")? (iii) Whether a court can set aside the selection of the ineligible candidate and direct appointment of the deserving candidate?
RELEVANT STATUTORY PROVISIONS:
3. Section 2 (r) of the Act, 2016 defines persons with benchmark disability.
4. India being a signatory to CRPD, which is an International Human Right Treaty of United Nation, which intends to promote, protect and ensure the full and equal enjoyment of human rights and and fundamental freedoms by all persons with disability to give effect to the United Nations Convention on the Rights of persons with disabilities and for matters connected therewith or incidental thereto, our Parliament enacted the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as 'the Act, 2016') and the Central Government made the Rights of Persons with Disabilities Rules, 2017 (hereinafter referred to as 'the Rules, 2017') in exercise of the powers conferred by sub-section (1) and (2) of section 100 of the Act of 2016.
5. The provisions of the Act of 2016 and definition contained in Rule 3 of the Rules of 2017, which are relevant for the present purposes are being reproduced as under:-
"2. Definitions.-- In this Act, unless the context otherwise requires,--
(c) "barrier" means any factor including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors which hampers the full and effective participation of persons with disabilities in society;
(h) "discrimination" in relation to disability, means any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation;
(r) "person with benchmark disability" means a person with not less than forty per cent. of a 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;
(s) "person with disability" means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;
6. Section 3 . Equality and non-discrimination.--
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