Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 332

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
SHIVSANKAR KARUNASANKAR PANDYA - Appellant
Versus
STATE OF GUJARAT & 2 others - Respondent
SPECIAL CIVIL APPLICATION NO. 8580 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 8580 of 2017
Decided On : 07-06-2021

Advocates Appeared:
For the Appellant : MR VAIBHAV A VYAS
For the Respondent: MR HS MUNSHAW
MR JAYNEEL PARIKH, AGP (5) for the Respondent(s) No. 1

Point of Law: Reservation of posts - Locomotor disability - The definition of locomotor disability as given in clause (o) of section 2 of Act, 1995 cannot be given a restrictive meaning than what is included in S. 34(1)(c) of Act 2016 - Petitioner is entitled for reservation to get benefit of provisions of S. 33 of Act, 1995.

Headnote:
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Section 33 (iii) - Rights of Person with Disabilities Act, 2016 - Section 34 - Appointment on post of Talati Cum Mantri (Gram Panchayat Secretary) - Physical disabilities - Respondent No.3 issued an advertisement inviting applications for appointment on 175 posts of Talati-cum-Mantri [Gram Panchayat, Secretary]. Out of said 175 posts advertised by the respondent-authorities, 3% posts are reserved for physically handicapped category candidates as per the provisions contained in Act, 1995 - Petitioner being physically disabled person with locomotor disability applied for post of Talati-cum-Mantri pursuant to the aforesaid advertisement along with disability certificate issued to the petitioner by the Health and Family Welfare Department, Government of Gujarat.
Finding of the court: It is clear that every appropriate Government is to appoint in establishment such percentage of vacancy not less than 3% for the persons or class of persons with disability of which 1% each shall be reserved for person suffering from blindness or low vision, hearing impairment and locomotor disability or celebral palsy. According to petitioner, the petitioner would fall in sub clause (iii) of section 33 of locomotor disability and for that purpose heavy reliance is placed by the petitioner on section 34 of Act, 2016 - Accordingly, petitioner is entitled for reservation to get the benefit of the provisions of section 33 of the Act, 1995 for the post of Talati-cum-Mantri for which he had applied as physically disabled person.
Result: Petition allowed

JUDGMENT :

1. Heard learned advocate Mr. Vaibhav Vyas for the petitioner, learned Assistant Government Pleader Mr. Jayneel Parikh for the respondent-State and learned advocate Mr. H.S.Munshaw for respondent Nos. 2 and 3 through video conference.

2. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Jainil Parikh and learned advocate Mr. Munshaw waive service of notice of rule for the respective respondents.

3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

(A) Direct the respondent authorities to consider the case of petitioner for appointment on the post of Talati Cum Mantri (Gram Panchayat Secretary), Class-III, pursuant to the advertisement at Annexure-A to this petition, and

(B) Declare and hold that the action of the respondent authorities of not considering the case of the petitioner for appointment on the post of Talati Cum Mantri (Gram Panchayat Secretary), Class-III, pursuant to the advertisement at Annexure-A to this petition, is illegal, arbitrary and discriminatory, and

(C) Pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to keep vacant one post of Talati Cum Mantri (Gram Panchayat Secretary), Class-III, pursuant to the advertisement at Annexure-A to this petition, and

(D) Pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to consider the case of the petitioner for appointment on the post of Talati Cum Mantri (Gram Panchayat Secretary), Class-III, pursuant to the advertisement at Annexure-A to this petition, along with other eligible candidates, and

(E) Award the cost of this petition,

(F) Grant any other relief of pass any other order which the Honourable Court may consider as just and proper in the facts and circumstance of the case and in the interest of justice.”

4. The brief facts of the case are that the petitioner is suffering from muscular dystrophy and is claiming rights of reservation for employment in category of persons with physical disabilities.

5. Respondent No.3 issued an advertisement inviting applications for appointment on 175 posts of Talati-cum-Mantri [Gram Panchayat, Secretary]. Out of the said 175 posts advertised by the respondent-authorities, 3% posts are reserved for the physically handicapped category candidates as per the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [for short 'the Act, 1995']. The petitioner being physically disabled person with locomotor disability applied for the post of Talati-cum-Mantri pursuant to the aforesaid advertisement dated 24.11.2016 along with disability certificate issued to the petitioner by the Health and Family Welfare Department, Government of Gujarat.

6. The petitioner thereafter appeared in the examination conducted by the respondent-authority. In the provisional merit list for appointment of the post of Talati-cum-Mantri, the name of the petitioner was included at Serial No. 275 showing that the petitioner obtained 61 marks. The petitioner thereafter, was informed to remain present for verification of the documents by letter dated 10.03.2017. The petitioner accordingly, appeared for verification of documents. However, though in the final select list of the candidates published on 07.04.2017, cut-off marks prescribed by the respondent authority for physically disabled persons was kept at 59.100 marks but the name of the petitioner was not reflected in the final select list. It appears that after publication of the final list, the respondent alloted post to the selected candidates but some of the candidates have not been appointed or have not opted for the post.

7. The petitioner therefore, made a detailed representation on 15.04.2017 and approached the respondent authorities to consider his case. However, the petitioner was informed by the

Click Here to Read the rest of this document