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2024 Supreme(Raj) 78
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
SAMEER JAIN, J.
Shalini Savita D/o Vinod Kumar – Appellant
Versus
State Of Rajasthan – Respondent
S.B. Civil Writ Petition No. 9974 of 2023
Decided on : 17-01-2024
Advocate Appeared:
For the Appellant : Mr. G.S. Gill, Mr. Manoj Kumar, Mr. Kapil Bhardwaj
For the Respondent: Mr. Hari Kishan Saini, Mr. Vishesh Sharma
IMPORTANT POINT
The central legal point established in the judgment is the obligation of the State Government to consider amendments in law and the imposition of costs for unnecessary hardships faced by petitioners due to the failure to do so.
Headnote:
Spine Locomotor Disability - Rights of Persons with Disabilities Act, 2016 - Rules of 2018, Section 34 - Amendment to notification number 38-16/2020-DD-III dated 04.01.2021 - Office Memorandum dated 07.09.2022
Fact of the Case:
The petitioner, a physically handicapped individual with Spine Locomotor Disability, challenged the non-consideration of her candidature for the post of Ayurved Medical Officer based on the advertisement's limitation to a different category of disability.
Finding of the Court:
The court found that the State Government's order failed to consider the amendment in law, which recognized Spinal Disability and Spinal Injury under the broad category of Locomotor Disability, and therefore, the petitioner's candidature should not have been denied.
Issues: The issues revolved around the interpretation of the advertisement's disability categories, the applicability of the Rules of 2018 and the amendment to the notification dated 04.01.2021, and the failure of the State Government to consider the updated position of law.
Ratio Decidendi: The court's decision was influenced by the failure of the State Government to consider the amendment in law, which led to the unnecessary hardships faced by the petitioner, and therefore, the court imposed a cost upon Respondent No.1 for the same.
Final Decision: The writ petition was allowed, and a cost of Rs. 50,000/- was imposed upon Respondent No.1, to be paid to the petitioner within three months.
ORDER :
1. The present writ petition was filed with the following prayer(s):-
“i) by passing an appropriate writ, order or direction the respondents be directed to add the “Spine Locomotor Disability” in the advertisement No. 02/2023 (Annex.8) under the categories of Physically Handicapped category and consider the candidature of the petitioner online or in the alternative the respondents be directed to accept off-line application form of the petitioner in pursuance of the advertisement No. 02/2023 Annex.8 under the disabled category;
ii) by passing an appropriate writ, order or direction in the nature thereof and thereby the respondents be directed to allow the petitioner to appear as physically handicapped category candidate as per her “Spine Locomotor Disability” and she may be given appointment on the post of Ayurved Chikitshik under the Physically Handicapped category as per her merit with all consequential benefits;
iii) Any other appropriate relief, which is deemed just and proper in the above mentioned facts and circumstances of the case, may also be granted to the petitioner alongwith the cost.”
2. Learned counsel for the petitioner submits that the petitioner is a physically handicapped under Locomotor Disability with Congenital Scoliosis Deformity of Spine with restriction of bone function, having permanent disability of about 44%. It is submitted that in advertisement no. 02/2023 for the post of Ayurved Medical Officer, the respondent have confined specially abled category to the benchmark disability of OA/Ol, which is not in consonance to the Rajasthan Rights Of Persons With Disabilities Rules, 2018 (for short ‘Rules of 2018’). In support of his contention, learned counsel for the petitioner has made the following submissions:
2.1. The first submission is that the petitioner acquired graduate as well as post graduate degree under the handicap category. Therefore, now the appointment of the petitioner cannot be denied on the basis of handicapped certificate which specifically does not mention OL.
2.2. The second submission is that the Rights of Persons with Disabilities Act, 2016 (for short ‘Act of 2016’), is a beneficial piece of legislation. It is contended that the list of disabilities prescribed in the advertisement was only illustrative and not exhaustive and since there was no specific exclusion of the locomotive disability in the advertisement, the candidature of the petitioner ought to be considered. It is also highlighted that petitioner does not have any of the disabilities which have been specifically been excluded.
2.3. The third submission is that the Rules of 2018 are promulgated by the State Government to give effect to the provisions of Act of 2016. Reliance is placed on Rule 5 and 6 of the Rules of 2018 read with Section 34 of the Act of 2016 to submit that the respondent are not competent to exclude any category of disability by implication.
2.4 The fourth submission is that respondents have mechanically followed the Central Government Order dated 04.01.2021, whereas there have been a change in law. It is submitted that by way of Notification dated 24.08.2022, issued by Department of Empowerment of Persons with Disabilities (Divyangjan) under the Ministry of Social Justice & Empowerment, the order dated 04.01.2021 has been amended and Spinal Deformity or Spinal Injury without any associated neurological/limb dysfunction was incorporated under Locomotor Disability in addition to OA, OL, etc.
3. Per contra, learned counsel for the respondent submits that candidature of the petitioner was not considered as spinal deformity was not mentioned in order dated 04.04.2023 passed by the State Government.
4. Heard and considered.
5. It is undisputed that the petitioner is suffering from Locomotor Disability. The only reason attributed for non-consideration of candidature of the petitioner is due to the fact that the disability of the petitioner is not provided in the advertisement nor specifically covered under order d
