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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
SUDESH BANSAL, J.
Yogesh Kumar Saini S/o. Samay Singh Saini - Petitioner
Versus
The State of Rajasthan, Through its Secretary, Education Department, Govt. of Rajasthan, Government Secretariat & Ors. - Respondents
S.B. Civil Writ Petition No. 9387 of 2022
Decided On : 14-03-2023
DISABILITY CERTIFICATE - RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016 - RAJASTHAN RIGHTS OF PERSONS WITH DISABILITIES RULES, 2018 - VALIDITY OF DISABILITY CERTIFICATE - MEDICAL BOARD REPORT - APPOINTMENT ON THE BASIS OF DISABILITY CATEGORY - REJECTION OF CANDIDATURE DUE TO CONFLICTING MEDICAL REPORTS - JUDICIAL REVIEW - CONSIDERATION OF ADDITIONAL EVIDENCE:
Fact of the Case:
Petitioner, a person with locomotor disability, applied for the post of Teacher Grade III Level I under the LD/CP disabled category. He possessed the requisite educational qualifications and had secured higher marks than the last cut-off marks in the category. However, his appointment was not accorded as the Medical Board constituted by the respondents found his permanent disability to be 35%, less than the required benchmark disability of 40%. The petitioner challenged the office order rejecting his appointment, claiming that the disability certificate issued by the Department of Medical and Health, Government of Rajasthan, showing 41% permanent disability, was valid.
Finding of the Court:
The Court directed the constitution of a Medical Board to examine the petitioner's disability. The Medical Board, consisting of six experts, examined the petitioner and found his permanent disability to be 45%. The Court also noted that the disability certificate issued by the Government of Rajasthan had not been challenged or revoked in accordance with the procedure prescribed under the Rights of Persons with Disabilities Act, 2016 and the Rajasthan Rights of Persons with Disabilities Rules, 2018.
Issues: 1. Whether the disability certificate issued by the Government of Rajasthan was valid and should be accepted? 2. Whether the Medical Board report, constituted under the Court's directions, should be given due credence and treated as authentic? 3. Whether the petitioner was eligible for consideration of his candidature in the category of disabled/PH persons for appointment on the post of Teacher Grade III Level I?
Ratio Decidendi: 1. The Court held that the disability certificate issued by the Government of Rajasthan was valid and should be accepted as it had not been challenged or revoked in accordance with the prescribed procedure. 2. The Court also held that the Medical Board report, constituted under the Court's directions, should be given due credence and treated as authentic as it was issued by a Medical Board consisting of six experts and had not been questioned by either party. 3. The Court further held that the petitioner was eligible for consideration of his candidature in the category of disabled/PH persons for appointment on the post of Teacher Grade III Level I as he had secured higher marks than the last cut-off marks in the category and his disability was above the benchmark disability of 40%.
Final Decision: The Court directed the respondents to issue an appointment order to the petitioner on the post of Teacher Grade III Level I in the PH LD/CP category forthwith. The Court also directed that notional service benefits like seniority, increment, and pay fixation to the petitioner shall be accorded from the date of appointment to the less meritorious person in the final selection list, but actual benefits shall be accorded from the date of his appointment.
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 passed by the Rajasthan High Court at Principal Seat at Jodhpur following interim order was passed on 12.07.2022 :
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 Gen
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