In recruitment under a special drive for persons with disabilities, technical rejection of a candidate for initially producing a temporary disability certificate, subsequently rectified as permanent, is unjustified where the post remains vacant and the error is attributable to medical reporting.

Jiya Lal Bhardwaj, Judge (Oral)

The petitioner by way of present petition has prayed for the following substantive relief(s):-

“(i) That the impugned action of respondents whereby they have refused to consider the claim of applicant for appointment to the post of Clerk reserved for “Hearing Impaired” category, as reflected in Annexure A-16 dated 6.2.2016 may be struck down being in violation of fundamental right of applicant guaranteed under Article 16 of the Constitution of India;

(ii) That the respondents may be directed to consider the applicant for appointment to the post of Clerk in respondent No.2 department reserved for “Hearing Impaired” category from due date, with all consequential benefits;”

2.

Shorn of unnecessary details, the brief facts of the case are that the respondents had issued an advertisement dated 16.01.2014 (Annexure A-1), for filling up of the vacancies reserved for Persons with Disability, in the categories of Clerk and Peon. The petitioner, who belonged to category of ‘hearing impaired’ and eligible to hold the post of Clerk, had applied before the cut of date fixed for receiving the applications i.e. 15.02.2014. Respondent No.2 had issued the admit card to the petitioner on 06.06.2015, for the typing test to be conducted by respondent No.3, which was appointed as nodal agency by the State government and date fixed was 25.06.2015. The petitioner appeared in the typing test conducted by respondent No.3 on 25.06.2015. Thereafter, the petitioner was called for the interview on 30.11.2015 as per the interview letter dated 17.11.2015, issued by respondent No.2 (Annexure A-7). However, the interviews were postponed and vide communication dated 26.11.2015 (Annexure A-8), the date to conduct the interview was fixed as 22.12.2015 at 11:00 AM. The petitioner on the said date, appeared before the interview Board and furnished the disability certificate dated 03.11.2015 (Annexure A-6), where her disability was shown as 40% with respect to hearing impaired. However, the nature of disability was shown as temporary. At the time of appearing in the interview, the petitioner was informed that she is ineligible, as her physical disability has been shown as temporary in nature. After noticing the said fact, the petitioner informed the members of the interview board that the Doctors, who had been treating her, had informed that her disability is permanent in nature and thereafter, she approached Deen Dyal Upadhaya Zonal Hospital, Shimla, (for short “DDU, ZH, Shimla”), who issued her disability certificate dated 03.11.2015(Annexure A-6) and the Senior Medial Superintendent, DDU, ZH, Shimla, vide letter dated 28.12.2015, informed the Senior Medical Officer, IGMC Shimla-1 (Annexure A-9) to advise whether the nature of disability of the petitioner, is permanent or temporary. The Medical Board of the Doctors in IGMC Shimla, examined the petitioner on 04.01.2016 and thereafter had submitted the Medical Report (Annexure A-12), stating therein that the disability suffered by the petitioner is permanent in nature.

3. On receipt of the said report, Senior Medical Superintendent had issued the disability certificate to the petitioner (Annexure A-13), depicting the disability of petitioner as 40% permanent of hearing impaired. The reference of BARE report IGMC dated 02.12.2015 & Medical Board report, IGMC dated 04.01.2016 was also mentioned.

4. After obtaining the disability certificate, the petitioner made a representation to respondents No.2 & 3, requesting to offer her appointment to the post of Clerk. However, no response was received. Thereafter, the