IMPORTANT POINT
The interpretation of measurable disability and the eligibility criteria for reservation for persons with disabilities, as defined in the Acts, was central to the judgment.

JUDGMENT :

Arun Bhansali, CJ..

1. This appeal is directed against the judgement dated 18.01.2024 passed in Writ A No. 13611 of 2021, whereby writ petition, filed by the petitioner-appellant against the rejection of his candidature as a person with disability, has been rejected.

2. The petitioner applied for the post of Homeopathic Medical Officer pursuant to advertisement dated 18.05.2018, whereby 494 posts were advertised, which were later increased by notification dated 09.08.2018 to 596 posts. Out of the said 596 posts, 319 posts were unreserved, 169 were reserved for other backward classes, 99 posts were reserved for scheduled caste category candidates and 9 posts were reserved for scheduled tribe category candidates. The horizontal reservation was, 118 posts for women candidates, 11 posts for dependents of freedom fighters and 17 posts for physically handicapped persons with disability (O.L.-9, PB-8).

3. A preliminary screening of the candidates was conducted, in which category wise candidates in the ratio of 1 : 3 were short listed for interview on the basis of merit with minimum cut off marks for each category. The candidates who could not secure minimum cut off marks in their respective category, overage candidates and those having physical disability different from the specified category were disqualified and their applications were rejected.

4. The petitioner’s application was not rejected and he was called for interview. The select list was published on 07.03.2020 and only one candidate was selected in the category of persons with disability and thus, petitioner’s candidature was rejected.

5. Feeling aggrieved, petitioner filed Writ Petition No. 11085/SS/2020, which was disposed of by judgement and order dated 24.03.2021 with a direction to the Respondent No. 1 to decide the petitioner’s representation by a reasoned and speaking order. The representation made by the petitioner came to be rejected by order dated 11.06.2021, interalia on the ground that physical disability of the petitioner (PB Category) was only 20% whereas, those with minimum disability of 40%, were eligible for the benefit of reservation and as the petitioner did not fall within the merit of O.B.C. candidates, he was not accorded appointment.

6. Feeling aggrieved, Writ A No. 13611 of 2021, came to be filed. Counter to the writ petition was filed, interalia indicating that the disability certificate filed by the petitioner with the writ petition clearly reflects his disability at 20% only and in terms of definition given in the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (in short ‘the Act, 1995’) person with not less than 40% of any disability was not eligible for reservation. It was submitted that the writ petition be dismissed.

7. Learned Single Judge by the impugned judgement, noted further contentions on behalf of respondents, that the selection was of the year 2018 and the same was completed in the year 2020, whereafter with reference to the certificate issued to the petitioner indicating his disability at 20% and referring to Clause B of Schedule under Section 2(e) of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 as amended in the year 2018 (in short ‘the Act, 1993’) came to the conclusion that case of the petitioner does not fall within the measurable limits as provided under Clause B(b) (i) of the Schedule and as the impairment was found to be 20% in the certificate issued by the Doctor, the petitioner was not liable to be considered as physically handicapped, consequently, dismissed the writ petition.

8. Learned counsel for the appellant made vehement submissions that the learned Single Judge failed to consider the purport of the provision pertaining to the Amendment Act, 2018, which is in consonance with the provision of the Rights Of Persons With Disability Act, 2016 (in short ‘the Act, 2016’). Submi