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2022 Supreme(Guj) 683
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, J.
LALUBHAI RAYAJIBHAI PATEL – Petitioner
Versus
STATE OF GUJARAT – Respondent
Special Civil Application No. 19173 of 2017
Decided On : 09-02-2022
Advocate Appeared:
For the Petitioner: P.A. JADEJA.
For the Respondent: AYAAN PATEL.
Headnote:
Constitution of India,1950 - Article 226 - PWD Act, 2016 - Sections 34 and 34 (1)(c) - Seeking directions to declare petitioner having locomotor disability - Recruitment process - Post of Live Stock Inspector - Petitioner that as petitioner was holding requisite education qualification, had applied - As there was no specification regarding disability in advertisement and petitioner was eligible for applying to post as a person with disability - Respondent-Authorities are required to undertake periodic assessment to specify nature of disability and that persons with such disability, are able to perform the nature of duties and accordingly petitioner was capable of performing the duty of the Live Stock Inspector as the scope of work specified for Live Stock Inspector, which petitioner is able to perform - PWD Act, 2016 was passed in the year 2016 and Act of 2016 specifies the categories of disability, which are required to be kept under reservation - He draws attention of this Court to Section34 of PWD Act, 2016 and submitted that Clause (c) of Section 34(1) provides for the persons with locomotor disability to be a category for whom reservation can be made - Held, Disability encompasses features broader and more comprehensive than a medical condition - 2016 that disability results in inequality of access to a range of public and private entitlements - Handicaps which disabled encounter emerge out of disability’s engagement with the barriers created by prejudice, discrimination and societal indifference - Operating as restraining factors, these barriers have origins which can be traced to physical, social, economic and psychological conditions in society - Operating on preexisting restraints posed by disability, these barriers to development produce outcomes in which disabled bear an unequal share of societal burdens - Legislation has recognized that remedies for barriers encountered by disabled are to be found in social environment in which they live, work and cohabit with others - Barriers encountered by every disabled person can be remedied by recognizing comprehensive rights as inhering in them; rights which impose duties and obligations on others - Principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating development of disabled - Reasonable accommodation is founded in norm of inclusion - Exclusion results in negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individuals’ dignity and worth is respected - Under this route, “powerful and majority adapt their own rules and practices, within limits of reason and short of undue hardship, to permit realization of these ends - Indicate that out of 22 seats reserved for persons with disability, only 4 seats have been filled up - It would be appropriate to direct respondents to consider the petitioner to be eligible candidate as person with disability for the reserved post of Live Stock Inspector and therefore, the petitioner is declared as eligible candidate to aforesaid post and if the petitioner is found otherwise eligible in all other regards that is to say with regards to other qualifications then - Petitioner states under instruction that the appointment that may be issued be treated from date of his appointment and that petitioner shall not make any claim with regards to his appointment from date of advertisement or the day on which other candidates were appointed pursuant to the Advertisement – Petition allowed.
JUDGMENT :
A.Y. KOGJE, J.
1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent-state. At request of the parties the rule is made returnable forthwith and case is taken of for final hearing as now the pleadings are complete.
2. This petition under Article 226 of the Constitution of India is filed seeking directions to declare the petitioner having locomotor disability as eligible to participate in the recruitment process for the post of Live Stock Inspector. The petitioner is having a disability of one leg, which is locomotor disability. The petitioner had applied pursuant to the Advertisement for the post of Live Stock Inspector being Advertisement No. 134/2017-18.
3. It is submitted that out of the post advertised, 11 posts were kept reserved for the persons with disability under the provisions of the Rights of Persons with Disabilities Act, 2016 herein after referred to as PWD Act, 2016. However, such 11 posts were reserved for the persons who had disability with vision and hearing impaired, no posts were reserved for the persons with locomotor disability.
4. It is the case of the petitioner that as the petitioner was holding requisite education qualification, had applied. As there was no specification regarding disability in the advertisement and therefore, the petitioner was eligible for applying to the post as a person with disability. It is submitted that the respondent-Authorities are required to undertake the periodic assessment to specify the nature of disability and that the persons with such disability, are able to perform the nature of duties and accordingly the petitioner was capable of performing the duty of the Live Stock Inspector as the scope of work specified for Live Stock Inspector, which the petitioner is able to perform. It is submitted that the PWD Act, 2016 was passed in the year 2016 and the Act of 2016 specifies the categories of disability, which are required to be kept under reservation. He draws attention of this Court to Section34 of the PWD Act, 2016 and submitted that Clause (c) of Section 34(1) provides for the persons with locomotor disability to be a category for whom the reservation can be made.
5. Learned Advocate for the petitioner has thereafter submitted that now the Government itself has come out with the Resolution dated 17.12.2021, where the locomotor disability of one leg was considered to be category for which the reservation is to be made.
6. Learned AGP opposing to the petition submitted that the process for the recruitment was under the Advertisement of the year 2017, but the procedure for requisitioning such posts for the Advertisement had commenced in the year 2016 and at that time, Act of 1995 was in place and therefore, the disability with the petitioner is facing would not be treated as the disability recognized for the purpose of reservation. He therefore, relied upon the Communication dated 23.10.2008, which according to him is in the exercise of the power of the State for treating the nature of category of disability for the purpose of reservation and therefore, the Communication of 2008 exempts the persons with disability of one leg from the category of reservation. In view of the provision of the Act of 1995, the State Government was within its power to do so. It is submitted that even as per the Act of 2016, the Government is required to undertake an exercise for identifying the posts for reservation as per Section-33 and accordingly, the Government Resolution of 17.12.2021 was issued and according to that now the persons with locomotor disability (one leg disability) were treated to be category for which the reservation would apply.
7. In rejoinder, learned Advocate for the petitioner submitted that even on the basis of recruitment process carried out, even today, as against total advertised posts of 400, 22 posts reserved, only 4 posts are filled up and rest are remaining vacant. It is therefore, submitted that even if the provisio
