Rajasthan High Court – Jodhpur
State Of Rajasthan vs Kavita on 31 August, 2024
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:34081-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 572/2023 1. State Of Rajasthan, Through The Secretary, Department Of Medical And Health, Secretariat, Jaipur. 2. Additional Director (Administration), Medical And Health Services, Tilak Marg, Jaipur. 3. Chief Medical And Health Officer, Hanumangarh. ----Appellants Versus Sunita D/o Shri Roop Chand, Aged About 35 Years, Karalon Ka Bas, Bhangarh, Tehsil Bhadra, District Hanumangarh. ----Respondent Connected With D.B. Spl. Appl. Writ No. 381/2020 1. State Of Rajasthan, Through The Principal Secretary, Medical And Health Services (Group-Iii), Govt. Of Rajasthan, Secretariat, Jaipur. 2. The Director (Public Health), Medical And Health Services, Rajasthan, Swasthya Bhawan, C-Scheme, Tilak Marg, Jaipur. 3. The Additional Director (Administration), Medical And Health Services, Rajasthan, Tilak Marg, Swasthya Bhawan, Jaipur. ----Appellants Versus Rekha Meena D/o Jithing Meena, Aged About 25 Years, Ramgarh, Kushalgarh, District Banswara (Raj.) ----Respondent D.B. Spl. Appl. Writ No. 66/2021 1. State Of Rajasthan, Through The Principal Secretary, Medical And Health Services (Group-Iii), Govt. Of Rajasthan, Secretariat, Jaipur. 2. The Director (Public Health), Medical And Health Services, Rajasthan, Swasthya Bhawan, C-Scheme, Tilak Marg, Jaipur. 3. The Additional Director (Administration), Medical And Health Services, Rajasthan, Tilak Marg, Swasthya Bhawan, Jaipur. ----Appellants Versus Dropadi D/o Shri Ratan Lal Sharma, Aged About 25 Years, R/o Village Hudera, Tehsil Ramgarh, Shekhawati, District Sikar. ----Respondent D.B. Spl. Appl. Writ No. 241/2021 (Downloaded on 31/08/2024 at 08:30:42 PM) [2024:RJ-JD:34081-DB] (2 of 28) [SAW-572/2023] 1. State Of Rajasthan, Through The Principal Secretary, Medical Health And Family Welfare Department, Government Of Rajasthan, Secretariat, Jaipur (Raj.) 2. The Director, Medical And Health Services, Tilak Marg, Swasthya Bhawan, Jaipur (Raj.) 3. The Additional Director (Administration), Medical And Health Services, Tilak Marg, Swasthya Bhawan, Jaipur (Raj.) ----Appellants Versus Anadu D/o Ram Lal, Aged About 24 Years, B/c Jat, R/o Gulji Ka Pana, Khotho Ki Dhani, Tehsil Baytu, District Barmer (Raj.) ----Respondent D.B. Spl. Appl. Writ No. 375/2021 1. The State Of Rajasthan, Through Secretary, Department Of Medical And Health, Government Of Rajasthan, Secretariat, Rajasthan, Jaipur. 2. The Director, Medical And Health Services, Rajasthan, Jaipur. 3. Addl. Director (Admn.), Medical And Health Services, Rajasthan, Jaipur. ----Appellants Versus Deepa Bai D/o Shri Sahab Ram, Aged About 29 Years, Resident Of Village 9 Ksd, Tehsil Raisinghnagar, District Sri Ganganagar. ----Respondent D.B. Spl. Appl. Writ No. 378/2021 1. State Of Rajasthan, Through Secretary, Department Of Medical And Health, Government Of Rajasthan, Secretariat, Jaipur. 2. The Director, Medical And Health Services, Rajasthan, Jaipur. 3. The Addl. Director (Admn.), Medical And Health Services, Rajasthan, Jaipur. ----Appellants Versus Smt. Indrawati D/o Shri Mahaveer Singh W/o Shri Rajesh Kumar, Aged About 34 Years, Ward No. 4, Near Lal Kui, Hanuman Mandir, Rajgarh, Tehsil Rajgarh, District Churu. ----Respondent D.B. Spl. Appl. Writ No. 380/2021 1. State Of Rajasthan, Through Secretary, Department Of Medical And Health Services, Government Secretariat, Jaipur, Rajasthan. 2. The Addl. Director (Admn.), Medical And Health Services, (Downloaded on 31/08/2024 at 08:30:42 PM) [2024:RJ-JD:34081-DB] (3 of 28) [SAW-572/2023] Swasthya Bhawan, Rajasthan, Jaipur. 3. The Addl. Director (Training), Medical And Health Services, Swasthya Bhawan, Rajasthan, Jaipur. ----Appellants Versus Vimla Choudhary D/o Shri Durga Ram W/o Shri Swaroop Ram, Aged About 27 Years, 92, Mundelo Ka Bas, Bilara, District Jodhpur. ----Respondent D.B. Spl. Appl. Writ No. 445/2021 1. State Of Rajasthan, Through The Principal Secretary, Medical And Health Services (Group-Iii), Govt. Of Rajasthan, Secretariat, Jaipur. 2. The Director (Public Health), Medical And Health Services, Rajasthan, Swasthya Bhawan, C-Scheme, Tilak Marg, Jaipur. 3. The Additional Director (Administration), Medical And Health Services, Rajasthan, Tilak Marg, Swasthya Bhawan, Jaipur. ----Appellants Versus Priyanka Rao D/o Shri Swaroop Singh, Aged About 26 Years, R/o Village Pahadpura, Tehsil Sanchore, District Jalore (Raj.). ----Respondent D.B. Spl. Appl. Writ No. 456/2021 1. The State Of Rajasthan, Through The Secretary, Medical And Health And Family Welfare, Govt. Of Rajasthan, Jaipur. 2. Additional Director (Admn.), Medical And Health Services, Swasthya Bhawan, Jaipur ----Appellants Versus Dunga Ram Gurjar S/o Hardev Lal Gurjar, Aged About 27 Years, Village Gariyakheda, Chatarpura, Tehsil Badnor, District Bhilwara (Raj.) ----Respondent D.B. Spl. Appl. Writ No. 457/2021 1. The State Of Rajasthan, Through The Additional Chief Secretary, Medical And Health And Family Welfare Department, Government Secretariat, Jaipur - 302005 (Rajasthan). 2. Additional Director (Admn.), Medical And Health Services, Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur- 302005 (Rajasthan) ----Appellants (Downloaded on 31/08/2024 at 08:30:42 PM) [2024:RJ-JD:34081-DB] (4 of 28) [SAW-572/2023] Versus Ramlal Naik S/o Sukharam, Aged About 23 Years, (Dob- 15.05.1996), Category-Sc, R/o Sarkari School Ke Pass, Raowala, Barsalpur, District Bikaner (Rajasthan) Pin 334305. ----Respondent D.B. Spl. Appl. Writ No. 500/2021 1. State Of Rajasthan, Through Its Additional Chief Secretary, Medical And Health Services, Secretariat, Jaipur. 2. Additional Director (Admn.), Medical And Health Services, Swasthya Bhawan, Jaipur. 3. Dr. Sampurnanand Medical College, Shastri Nagar, Jodhpur Through Its Principal. ----Appellants Versus Mohammed Rizwan S/o Shri Mohammed Salim, Aged About 33 Years, Resident Of 104, Mastan Baba Colony, Pali (Raj.), Mobile Number- 9928191111. ----Respondent D.B. Spl. Appl. Writ No. 502/2021 1. The State Of Rajasthan, Through Its Additional Chief Secretary, Medical And Health Services, Secretariat, Jaipur. 2. Additional Director (Admn.), Medical And Health Services, Swasthya Bhawan, Jaipur. ----Appellants Versus Suresh S/o Shri Sukhdev Ram, Aged About 27 Years, (Physically Handicapped Candidate-Ol, Marks Obtained 51.807 Percentage) Resident Of Village Nimbola Kallan, Tehsil Degana, District Nagaur (Raj). Mobile Numbe 9783300059. ----Respondent D.B. Spl. Appl. Writ No. 8/2022 1. State Of Rajasthan, Through Its Additional Chief Secretary, Medical And Health Services, Secretariat, Jaipur. 2. Director (Non-Gazetted), Medical And Health Services, Swasthya Bhawan, Jaipur. ----Appellants Versus Ved Pal S/o Onkar Lal Meena, Aged About 44 Years, (Physically Handicapped Candidate -Ol, Marks Obtained 40.389 Percentages) Resident Of Near Jain Temple, V/p Thanawad, Tehsil Aklera, District Jhalawar (Rajasthan), Mobile Number - 9571261836. (Downloaded on 31/08/2024 at 08:30:42 PM) [2024:RJ-JD:34081-DB] (5 of 28) [SAW-572/2023] ----Respondent D.B. Spl. Appl. Writ No. 20/2022 1. The State Of Rajasthan, Through Secretary, Department Of Medical And Health, Government Of Rajasthan, Secretariat, Rajasthan, Jaipur. 2. Director, Medical, Health And Family Welfare Services, Rajasthan, Jaipur. 3. Addl. Director (Admn.), Medical, Health And Family Welfare Services, Rajasthan, Jaipur. ----Appellants Versus Smt. Kamla W/o Shri Ram Chandra, Aged About 57 Years, Village Payali, Tehsil Deedwana, District Nagaur. ----Respondent D.B. Spl. Appl. Writ No. 29/2022 1. State Of Rajasthan, Through The Principal Secretary, Medical And Health Services (Group-Iii), Govt. Of Rajasthan, Secretariat, Jaipur. 2. The Director (Public Health), Medical And Health Services, Rajasthan, Swasthya Bhawan, C-Scheme, Tilak Marg, Jaipur. 3. The Additional Director (Administration), Medical And Health Services, Rajasthan, Tilak Marg, Swasthya Bhawan, Jaipur. ----Appellants Versus Parma Devi Bishnoi D/o Shri Kishan Lal, Aged About 35 Years, R/o Bichpuri, Rajod, Tehsil Degana, District Nagaur (Raj.). ----Respondent D.B. Spl. Appl. Writ No. 32/2022 1. State Of Rajasthan, Through The Principal Secretary, Medical And Health Services (Group-Iii), Govt. Of Rajasthan, Secretariat, Jaipur. 2. The Director (Public Health), Medical And Health Services, Rajasthan, Swasthya Bhawan, C-Scheme, Tilak Marg, Jaipur. 3. The Additional Director (Administration), Medical And Health Services, Rajasthan, Tilak Marg, Swasthya Bhawan, Jaipur. ----Appellants Versus Seema Kumari Dhobi D/o Shri Lala Ram Dhobi, Aged About 27 Years, R/o Village-Post Bisundani, Tehsil Sawar, District Ajmer (Raj.) ----Respondent (Downloaded on 31/08/2024 at 08:30:42 PM) [2024:RJ-JD:34081-DB] (6 of 28) [SAW-572/2023] D.B. Spl. Appl. Writ No. 46/2022 1. State Of Rajasthan, Through The Secretary, Department Of Medical And Health, Secretariat, Jaipur. 2. The Additional Director (Administration), Medical And Health Services, Tilak Marg, Jaipur. 3. Chief Medical And Health Officer, Churu. ----Appellants Versus Kavita D/o Shri Badlu Ram W/o Shri Satyanarayan, Aged About 32 Years, Ward No. 5, Neshal Badi, Tehsil Rajgarh, District Churu. ----Respondent D.B. Spl. Appl. Writ No. 81/2022 1. The State Of Rajasthan, Through The Deputy Secretary, Department Of Medical And Health (Group-3) Secretariat, Government Of Rajasthan, Jaipur. 2. The Additional Director (Admn), Medical And Health Services, Tilak Marg, Health Bhawan, Jaipur. ----Appellants Versus Shiv Pratap Singh S/o Shri Moti Singh, Aged About 30 Years, R/o Bijapur, Tehsil Bali, District Pali (Raj.) ----Respondent D.B. Spl. Appl. Writ No. 144/2022 1. State Of Rajasthan, Through Its Secretary, Medical Health And Family Welfare, Govt. Of Rajasthan, Jaipur 2. Additional Director (Admn), Medical And Health Services, Swasthya Bhawan, Jaipur ----Appellants Versus Bhawana Dhadich D/o Shri Shiv Raj Dadhich, Aged About 37 Years, R/o Plot No. 07, Tapashvi Nagar Dadhich Bhawan, District Jodhpur (Raj.) ----Respondent D.B. Spl. Appl. Writ No. 145/2022 1. State Of Rajasthan, Through Its Additional Chief Secretary, Medical And Health Services, Secretariat, Jaipur 2. Additional Director (Admn), Medical And Health Services, Swasthya Bhawan, Jaipur 3. Dr Sampunanad Medical College, Shastri Nagar, Jodhpur Through Its Principal 4. The Chief Medical And Health Officer, Jodhpur 5. The Medical Officer In Charge, Community Health Centre (Downloaded on 31/08/2024 at 08:30:42 PM) [2024:RJ-JD:34081-DB] (7 of 28) [SAW-572/2023] Luni, District Jodhpur ----Appellants Versus Kailash Kaswan S/o Shri Ramchandra, Aged About 27 Years, (Physically Handicapped Candidate-Ol, Marks Obtained 81.034) Resident Of Village/post Paliyas, Tehsil Degana, District Nagaur (Raj.) Mobile Number 8696106886 ----Respondent D.B. Spl. Appl. Writ No. 146/2022 1. State Of Rajasthan, Through Its Additional Chief Secretary, Medical And Health Services, Secretariat, Jaipur. 2. The Additional Director (Admn.), Medical And Health Services, Swasthya Bhawan, Jaipur. 3. Dr. Sampurnanad Medical College, Shashtri Nagar, Jodhpur Through Its Principal ----Appellants Versus Sangeeta Choudhary D/o Harshukah Ram, Aged About 28 Years, Village / Post Jhujanda, Tehsil Mumdwa, District Nagaur (Raj.) Mobile Number 9413169482 ----Respondent D.B. Spl. Appl. Writ No. 109/2024 1. State Of Rajasthan, Through Secretary, Department Of Medical And Health Services, Government Secretariat, Jaipur, Rajasthan. 2. The Addl. Director (Admn.), Medical And Health Services, Swasthya Bhawan, Rajasthan, Jaipur. 3. The Addl. Director (Training), Medical And Health Services, Swasthya Bhawan, Rajasthan, Jaipur. ----Appellants Versus Nainy Devi W/o Sh. Ram Dayal, D/o Sh. Shiv Ram Tak, Aged About 37 Years, Resident Of Village Olvi, Tehsil Bilara, Dist. Jodhpur (Raj.). ----Respondent D.B. Spl. Appl. Writ No. 673/2024 1. The State Of Rajasthan Through The Secretary, Department Of Medical And Health, Government Of Rajasthan, Secretariat, Jaipur (Rajasthan). 2. The Director Medical And Health Services, Rajasthan Govt Of Rajasthan Jaipur 3. The Additional Director Administration, Department Of Medical And Health Jaipur ----Appellants (Downloaded on 31/08/2024 at 08:30:42 PM) [2024:RJ-JD:34081-DB] (8 of 28) [SAW-572/2023] Versus Pawan Jaipal S/o Tejaram Jaipal, Aged About 28 Years, By Caste Meghwal, Resident Of Bhutton Ka Baas, Fatipura, Bikaner, District Bikaner (Rajasthan) ----Respondent For Appellant(s) : Mr. N.S. Rajpurohit, AAG For Respondent(s) : Mr. Yashpal Khileree Ms. Vinita Mr. Vivek Fiorda Mr. Jayram Saran Mr. Bharat Singh Rathore Mr. Rishabh Tayal Mr. Jitendra Choudhary Ms. Muskan Jangid Ms. Priyanka Bhootra for Mr. Shridhar Mehta Mr. R.S. Choudhary Dr. Ashok Choudhary Mr. J.K. Suthar Ms. Pragya Singh for Mr. Narendra Singh HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON’BLE MR. JUSTICE KULDEEP MATHUR
Reportable JUDGMENT
31/08/2024
By the Court (Per, Hon’ble Mr. Justice Kuldeep Mathur):
1. The controversy following the recruitment drive initiated by
the appellant-State came to be decided by learned Single Judge
on different dates. Since common question of law and fact is
involved in the present batch of special appeals, these are being
heard together and decided by this common order and judgment.
The following posts were advertised through different
advertisements / corrigendum:-
‘Nurse Grade-II’ vide advertisements nos. नर्सिंग/नर्स श्रे.
द्वि./ऍम ऍन आई टी/(सीधी भर्ती -2018)/2018/230 and नर्सिंग/नर्स श्रे.
द्वि./ऍम ऍन आई टी/(सीधी भर्ती -2018)/2018/231 dated
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[2024:RJ-JD:34081-DB] (9 of 28) [SAW-572/2023]30.05.2018 for the TSP and Non-TSP areas respectively,
wherein 6035 posts were advertised for the Non-TSP areas
and 522 posts were advertised for the TSP areas. Later on,
through corrigendum dated 26.07.2018, the number of
posts for Non-TSP Ares were reduced to 5927.
‘Women Health Worker’ vide advertisement no. नर्सिंग/
म 0 स्वा0 कार्य 0/ऍमऍनआईटी/(सीधी भर्ती -2018)/2018/1363 dated
18.06.2018 for the Non-TSP area wherein 4965 posts were
advertised for Non-TSP area.
2. For convenience, the facts from the lead case being D.B.
Civil Special Appeal Writ No.241/2021 (State of Rajasthan and
Ors. v. Anadu) are taken for consideration.
3. As per the aforesaid advertisements, 3% of the advertised
posts were kept reserved for category of persons suffering from
40% or more disability in one leg (PH-OL). The respondents being
eligible and desirous for appointment on the advertised posts
submitted their application forms in the Office of Director Medical
and Health Services, Government of Rajasthan, Jaipur. After
following the procedure prescribed under the aforesaid
advertisements, the appellant- State published the provisional
merit/selection lists on 25.11.2019, 14.12.2019 and 08.01.2020.
The grievance of the respondents was that the names of the
respondents were not included in the provisional merit/select list,
though the candidates who had secured less marks than them
were included in the aforesaid lists. The respondents herein
possess requisite qualifications for the advertised posts along with
disabilities certificate(s) issued by competent authority of the
State of Rajasthan indicating their respective disabilities.
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4. Being aggrieved and dissatisfied with the acts and inaction
of the appellant-State, the respondents approached the learned
Single Bench of this Court with a prayer that the acts and inaction
of the appellant-State in excluding their names from the
provisional merit/selection lists without disclosing any reason may
be declared bad in the eye of law. In the writ petitions filed on
behalf of the respondents, it was stated that since they possess
more marks than the persons who have been included in the
provisional merit/select list, a direction may be issued to the
appellant-State to include their names in the final merit/selection
lists under their respective PH category (physically handicapped
category).
5. The appellant- State by way of filing reply to the writ
petitions preferred by the respondents tried to justify the action of
not including the names of the respondents in the provisional
merit/select list dated 14.12.2019. It was asserted in the reply
that before publication of the provisional merit/select list dated
14.12.2019, the respondents were examined by the Medical
Board at the time of document verification when it was found that
the respondents not only have 40% or more disability in one leg
but also have deformity in the other leg/ other body part, such as
shortening or weaker muscle strength. It was stated that the after
assessment of physical condition of the respondents, they were
liable to be treated as having disability in ‘both legs’ and not only
in ‘one leg’. The appellant-State, therefore, came to the
conclusion that the respondents were not fulfilling the requisite
terms and conditions with respect to eligibility mentioned in the
advertisement for recruitment on the advertised posts.
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6. The writ petitions were heard and finally decided by learned
Single Bench while holding that the appellant- State was not
justified in rejecting the candidature of the respondents owing to
additional deformity in the second leg/other body part. The
learned Single Bench observed that once it is not in dispute that
petitioners are having 40% or more disability in one leg, the
denial of appointment on the advertised posts on account of their
minor additional physical deformity amounts to denial of fair
opportunity in public appointment and the same is in violation of
provisions of the Rights of Persons with Disabilities Act, 2016
(hereinafter referred to as ‘the Act of 2016’) and the Rajasthan
Rights of Persons with Disabilities Rules, 2017 (hereinafter
referred to as ‘the Rules of 2017’). The appellant- State was
directed to prepare a fresh select list for PH category and place
the eligible respondents (after verifying their documents) at
appropriate place in the select list in the concerned category and
thereupon, issue appointment orders in their favour.
The appellant-State being aggrieved by the aforesaid
judgments passed by learned Single Bench has preferred the
present special appeals.
7. Learned counsel for the appellant- State submitted that
under Note-1 appended with Clause-3, it was clearly mentioned
that a person having disability other than OL- one leg will not be
eligible for recruitment against the reserved posts. Learned
counsel contended that in the present case, indisputably, all the
respondents are suffering from some additional disability or
deformity, therefore, as per the terms and conditions mentioned
in the advertisement for claiming reservation under the PH
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category (physically handicapped category), their names were
rightly not included in the provisional select/merit list dated
14.12.2019 of the eligible candidates published by the
department pursuant to the advertisement dated 18.06.2018.
8. To buttress the aforesaid contention, learned counsel
submitted that in conformity with provisions of the Act of 2016
and the Rules of 2017, a committee was constituted by the State
of Rajasthan under the Chairmanship of Principal Secretary, Social
Justice and Empowerment Department to identify the posts which
can be held by a person having more than 40% disability in one
leg and is also entitled for reservation. The aforesaid committee in
its meeting dated 18.12.2020 after undertaking detailed
deliberations took a decision that for performing duties on the
post of ANM/GNM, only candidates having disability in one leg are
eligible for appointment and reservation. As per learned counsel,
the opinion/decision of the aforesaid committee being a body of
experts is binding and, therefore, learned Single Bench ought not
to have taken a contrary opinion and issued a direction for
providing appointment to the respondents.
9. Lastly, learned state counsel appearing for the appellant-
State urged that learned Single Bench in its judgment has
observed that since the respondents had produced the disability
certificate issued by the competent authority at the time of
document verification, they should not have been asked to
undergo medical examination afresh, to ascertain the percentage
of disability suffered by them and to find out whether they were
also suffering from any other physical deformity. Learned counsel
submitted that looking to the nature of the duties required to be
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performed by health workers in the government hospital, the right
of the employer to see whether a person selected for the post can
perform the duties of the advertised post or not ought not to have
been questioned by the learned Single Bench. An employer is well
within its rights to adjudicate suitability of a candidate for the
purpose of employment in its organization before issuing final
appointment order in his/her favour.
10. On these grounds, learned counsel implored the Court to
accept the present special appeal and set aside the impugned
order dated 15.12.2020 passed by the learned Single Bench.
11. Per contra, learned counsel for the respondents supported
the judgment passed by the learned Single Bench and submitted
that the disability certificates possessed by the respondents
specifies the nature of physical handicap and the degree of
disability suffered by them. It is further submitted that as per
Clause 13(viii) of the advertisement, the candidates who had
applied under PH category and were possessing a certificate
issued by the competent authority at the time of document
verification, were not required to undergo a fresh medical
examination. Only those candidates who had failed to produce
disability certificates at the initial stage, were required to undergo
the medical examination. However, in the present case, in
ignorance of the aforesaid clause, all the respondents were
subjected to the medical examination, wherein the medical board
while certifying that they were suffering disability of more than
40% in one leg, has further indicated that they are having
disability in both the legs. The fresh evaluation of the respondents
by a Medical Board constituted by the appellant-State ignoring the
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disability certificates produced by them in conformity of the terms
and conditions of the advertisement was per se illegal and cannot
be read against their interests.
12. Learned counsel for the respondents vehemently and
fervently submitted that a candidate having some deformity in
other part of the body cannot be adjudged as unsuitable for
employment under the category of OL- one leg as long as he/she
is having 40% or more disability in one leg. Any additional
deformity/disability cannot be permitted to be used as a tool to
deprive the respondents from seeking employment under the
State Government, as the same would be in gross violation of
Articles 14, 16 and 21 of the Constitution of India as well as the
object with which the Act of 2016 and the Rules of 2017 have
been enacted.
13. Heard learned counsel for the parties at bar and perused the
material available on record.
14. The findings/ observations recorded by the learned Single
Judge in Para Nos.26 to 46 while accepting the writ petition filed
by the respondents are being reproduced below for ready
reference:-
“26. Indisputably, the petitioners had furnished their
disability certificate(s) issued by the competent
authority alongwith the applications form(s) and had
produced the same at the time of document verification.
Such being the position, the respondents could not have
required the petitioners to undergo the medical
examination.
27. In considered opinion of this Court, the medical
examination before selection was required to be done
only for the candidates, who had applied under
disabled/PH category and did not possess the certificate
issued by competent authority. But if a candidate was
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[2024:RJ-JD:34081-DB] (15 of 28) [SAW-572/2023]examination by Medical Board was not required. 28.
Petitioners have approached this Court and raised a
grievance that their disability certificates cannot be
ignored/overlooked. Be that as it may, after hearing
learned counsel for the parties, on 04.03.2020, the
Court directed the Principal, Dr. S.N. Medical College to
constitute a Medical Board for examining “petitioners’
percentage of disability”.
29. A perusal of the order dated 04.03.2020 clearly
shows that the Medical Board was required to examine
and report exact percentage of petitioners’ disability,
whereas the members of the Board, instead of giving
percentage of disability, have indicated that their
percentage of disability is 40% and more. It was
incumbent upon the Board to show percentage of
disability in each leg but, on the contrary, they have
given a sweeping remark that disability is above 40%,
but in both the legs.
30. The Medical Board has gone a step ahead and has
reported that the petitioners are having disability in
their second leg also. That was reported on the basis of
strength of their muscle. Matter does not end here they
have gone to the extent of reporting that petitioners are
not able to discharge the work of Nurse/Female Health
Worker. Said part of the report reads thus :-
“प्रमाणित किया जाता है कि अभ्यर्थी श्री/सुश्री अनद ु का शारीरिक परीक्षण
करने के उपरान्त हम मेडिकल बोर्ड के सदस्य इस निर्णय पर पहुंचे है कि
अभ्यर्थी की उक्त दिव्यांगता अभ्यर्थी द्वारा विज्ञप्ति अनस ु ार आवेदित
पद के दायित्वों को, जिनमें संलग्न सच ू ी में दिये गये दायित्व सम्मिलित
हैं. पूर्ण करने में बाधक सिद्ध होगी/ नहीं होगी एवं दिव्यांगता के इस
प्रकार के साथ राजस्थान चिकित्सा एवं स्वास्थ्य अधीनस्थ सेवा नियम
1965 के नियम 13 के तहत अभ्यर्थी आवेदित पद के दायित्वों को
विभिन्न पारियों में लगातार 8 घंटे तक सामान्य रूप से एवं आपातकालीन
परिस्थितियों में आवश्यकतानस ु ार सम्पन्न कर सकेगा/नहीं कर सकेगा।
(जो लागू न हो उसे काट दे ”
31. Hence, evaluation of petitioners by Medical Board,
ignoring their disability certificates was per-se illegal
and further, the report of the Board constituted
pursuant to the order of this Court being faulty and
beyond the scope of reference, is liable to be ignored.
32. During the Court proceedings, Dr. Imran Sheikh in
unequivocal terms informed that the Board has given
the report in the format provided to it by the
respondents. It was fairly admitted by him that all the
candidates, who appeared before the Board on
18.03.2020, were having at least 40% disability in one
of their legs and in addition thereto, had little or more
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deformity in other leg, for which the Board has given
the report dated 18.03.2020 and treated them to be
PH- ‘BL’.
33. Now, adverting to the basic reason for which the
respondents have nixed petitioners’ right of being
considered as ‘OL category’ that petitioners are having
some impairment in other leg also; this Court is of the
considered opinion that such approach is illegal,
arbitrary and iniquitous, to say the least.
34. A candidate is entitled to be considered under the
PH category for the post of Female Health Worker if she
is physically challenged in one leg and such disability is
40% or more. The fact that a candidate is having some
problem in other leg or even in other part of the body,
does not expel or throw him out of his/her category of
‘OL’. The pre-requisite condition for claiming reservation
is, that a candidate should have 40% or more disability
in one leg.
35. The reservation provides a handicap to a
handicapped person, with the help of which he is placed
at equal pedestal with other candidates. If a normal
human being with some or small deformity or disability
cannot be denied appointment, this Court wonders how
and why the petitioners can be denied appointment,
merely because they have some additional problem or
disability.
36. Once a candidate has been found entitled for
reservation, his eligibility or entitlement has to be
reckoned on such basis. Thereafter, such disability, for
which he has been given reservation is required to be
ignored. The State is obliged to treat him as a normal
candidate and also bound to ignore additional minor
rather inconsequential issues/ailments.
37. Petitioners, out of this bunch of petitions, are
having minor additional impairment in their other leg.
Similar disability may be ( in other part of the body
also, such as upper limb (hand) ear or eye. But such
disability by itself cannot be a ground to deny them
benefit of reservation, which the framers of law have
conferred upon them, as a matter of right, so that they
can lead their life with self respect, self esteem and
dignity.
38. According to provisions of Rule 13 of the Rules of
1965, all candidates are required to produce a
certificate of fitness before joining. The petitioners who
are having benchmark disability are also required to
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produce a certificate of fitness as contemplated under
Rule 13 of the Rules. If they are able to perform the
duties of the post they have been selected for, and a
certificate by the prescribed authority/competent
authority is produced, the appointing authority cannot
deny them appointment/joining.
39. The respondents cannot throw the petitioners out of
the race and refuse to issue them appointment orders
without giving them an opportunity to produce a
certificate as contemplated under Rule 13 of the Rules.
40. This Court fails to comprehend that how the
petitioners – who have been given admission in GNM
Course, notwithstanding their physical conditions; who
have been selected for contractual employment after
taking benefit of reservation; who are having requisite
educational qualification and experience of working as
Female Health Worker/Nurse with the State, and other
private agencies; who have cleared all the practical
examinations, can be considered, rather branded as not
capable of discharging their duties effectively !
41. Contention of the respondents that the petitioners
do not have enough strength in their muscles is
absolutely untenable. If the candidates, who have not
claimed reservation, have been offered appointment
without being subjected to muscle strength test, there
can be no reason to test petitioners’ muscle strength
and non-suit them on such count.
42. All the petitioners before this Court are having 40%
or more impairment/disability in one of their legs. A
person who is having impairment to the extent of 40%
or more, is bound to have overbearing impact on his
other leg also. Naturally, because of more use of other
leg or due to shifting of more body weight on stronger
leg. This natural consequence should not lead to more
adversities, than the nature has already posed to them.
43. Rule 35 of the Rules of 2011 clothes a Person with
Disability, with an eligibility to hold post identified by
the State Government. Rule 35, which begins with a
non- obstante clause. At the same time, Rule 36 not
only insulates but also provides a pole to a person
suffering from the designated disability so that he can
vault the social and emotional barrier and land on a
level playing field and compete with his more fortunate
counter parts.
44. Rule 35 of the Rules of 2011 has been enacted to
eclipse the effect of the service rules relating to physical
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fitness such as Rule 13 in the Rules of 1965, in the
manner that if a person is suffering from the disability
enumerated in Rule 36 of the Rules of 2011,
irrespective of being physically unfit, he/she is to be
offered appointment on the earmarked posts.
45. But at the same time, it cannot be said as a natural
corollary, that a person with further disability in other
leg or other body part is unfit to be appointed on the
post of Female Health Worker.
46. A person with impairment in one leg (OL) has been
notified to be appointed for the post of Female Health
Worker, as required by Rule 36. It means that 3% seats
are required to be reserved for persons with impairment
in one leg. It is pertinent that such reservation is
available only to persons having disability to the extent
of 40% or more. Consequent to the provisions
contained in Rule 35, no one can say that a person with
40% or more disability in one leg is not fit to perform a
work of a Female Health Worker.”
15. In the opinion of this Court, the following issues arise for
consideration in this batch of special appeals:-
(1.) Whether the appellant- State was justified in subjecting the
respondents to medical examination in order to ascertain the
percentage of disability suffered by them, despite their possessing
disability certificates issued by competent authority in terms of
the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Rules, 1996 and Rights of Persons
with Disabilities Rules, 2017?
(2.) Whether the appellant- State is justified in denying
appointment to the respondents on the posts of Female Health
Workers despite their having 40% or more disability in OL- One
Leg on the count that they suffer from minor deformity in other
leg or in any other part of the body?
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[2024:RJ-JD:34081-DB] (19 of 28) [SAW-572/2023]
16. In order to adjudicate upon the issues referred above, this
Court deems it just and proper to reproduce the relevant
statutory provisions contained in following Act/Rules:-
(i) Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 (hereinafter referred to as
‘the Act of 1995’)
(ii) Rights of Persons with Disabilities Act, 2016 (hereinafter
referred to as ‘the Act of 2016’)
(iii) Rajasthan Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Rules, 2011
(hereinafter referred to as “the Rules of 2011”)
(iv) Rajasthan Medical & Health Subordinate Service Rules, 1965
(hereinafter referred to as ‘the Rules of 1965’):-
“(a) Section 2(t) of Act of 1995 :-
“2(t).”person with disability” means a person suffering from
not less than forty per cent of any disability as certified by a
medical authority;”
(b) Section 2(r) and Rule 2(s) of the Act of 2016:-
“Definitions.-
xxx xxx xxx
xxx xxx xxx
2(r) “Person with benchmark disability” means a person
with not less than forty per cent. of specified disability
where specified disability has not been defined in
measurable terms and includes a person with disability
where specified disability has been defined in measurable
terms, as certified by the certifying authority;
2(s) “Person with disability” means a person with long term
physical, mental, intellectual or sensory impairment which,
in interaction with barriers, hinders his full and effective
participation in society equally with others;”
(c) Sections 34 of the Act of 2016:
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“34. Reservation.- (1) Every appropriate Government shall
appoint in every Government establishment, not less than
four per cent. of the total number of vacancies in the cadre
strength in each group of posts meant to be filled with
persons with benchmark disabilities of which, one per cent.
each shall be reserved for persons with benchmark
disabilities under clauses (a), (b) and (c) and one per cent.
for persons with benchmark disabilities under clauses (d) and
(e) namely:-
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) Locomotor disability including cerebral palsy, leprosy
cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability
and mental illness;
(e) multiple disabilities from amongst persons under clauses
(a) to (d) including deaf-blindness in the posts identified for
each disabilities: Provided that the reservation in promotion
shall be in accordance with such instructions as are issued by
the appropriate Government from time to time:
Provided further that the appropriate Government, in
consultation with the Chief Commissioner or the State
Commissioner, as the case may be, may, having regard to
the type of work carried out in any Government
establishment, by notification and subject to such conditions,
if any, as may be specified in such notifications exempt any
Government establishment from the provisions of this
section.
(2) Where in any recruitment year any vacancy cannot be
filled up due to non-availability of a suitable person with
benchmark disability or for any other sufficient reasons, such
vacancy shall be carried forward in the succeeding
recruitment year and if in the succeeding recruitment year
also suitable person with benchmark disability is not
available, it may first be filled by interchange among the five
categories and only when there is no person with disability
available for the post in that year, the employer shall fill up
the vacancy by appointment of a person, other than a person
with disability:
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Provided that if the nature of vacancies in an establishment is
such that a given category of person cannot be employed,
the vacancies may be interchanged among the five
categories with the prior approval of the appropriate
Government.
(3) The appropriate Government may, by notification,
provide for such relaxation of upper age limit for employment
of persons with benchmark disability, as it thinks fit.”
(d) Rules 35 and 36 of the Rules of 2011:-
“35. Eligibility.- Notwithstanding anything contained in
any rules or orders for the time being in force regulating
the recruitment and conditions of service of persons
appointed to the various services or posts in connection
with the affairs of every establishment including the
Government Department. Persons with Disabilities shall be
eligible for appointment to the posts identified for them
under rule 36 of these rules provided they fulfill the
qualifications laid own in the relevant recruitment or
service rules for the posts and are functionally able to
perform the duties of the posts of the said services.
36. Reservation for Persons with Disabilities.- In
every establishment three percent of the vacancies shall
be reserved for persons or class of Persons with
Disabilities of which one percent each shall be reserved
for persons suffering from;-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) Locomotor disability or cerebral palsy.
In the posts identified for each disability by the
Government of India under section 32 and such
reservation shall be treated as horizontal reservation:
Provided that where the nomenclature of any post
in the State Government is different from the post
in Government of India or any post in the State
Government does not exist in any department of
the Government of India, the matter shall be
referred to the Committee constituted under rule(Downloaded on 31/08/2024 at 08:30:42 PM)
[2024:RJ-JD:34081-DB] (22 of 28) [SAW-572/2023]38 for identification of the equivalent post in the
State Government. The Committee shall identify
the equivalent post on the basis of nature of job
and responsibility of each post.
(e) Rule 13 of the Rules of 1965:-
13. Physical Fitness:- A candidate for direct recruitment
to the Service must be in good mental or bodily health
and free from any mental or physical defect likely to
interfere with the efficient performance of his duties as a
member of service and if selected must produce a
certificate to that effect from a Medical Authority notified
by the Government for the purpose. The Appointing
Authority may dispense with production of such certificate
in the case of candidate promoted in the regular line of
promotion, or who is already serving in connection with
the affairs of the State if he had already been medically
examined for the previous appointment and the essential
standards of medical examination of the two posts held by
him are to be comparable for efficient performance of
duties of new post and his age has not reduced hisefficiency for the purpose.”
Issue No.1
17. The appointment on the post of Female Health Worker in the
Medical and Health Department, Government of Rajasthan is
governed by the Rules of 1965. As per Rule 13 of the Rules of
1965, a candidate for direct recruitment to the service on being
selected for the post must produce a certificate issued by a
medical authority notified by the Government for that purpose
indicating that he/she is free from any mental or physical defect
which is likely to interfere with efficient performance of his/her
duties as a member of service.
18. It is pertinent to note here that under the subject
advertisement, under Note 1 and 2 appended to Clause-3 clause
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(viii) of Para 13, general directions were issued to the candidates
applying against the post reserved for disabled person in the
following terms:
“3.आरक्षण नोट:- 1. 40 प्रतिशत या इससे अधिक One Leg
Locomotor (OL) Disability होने पर ही दिव्यांग अभ्यर्थियों के लिये
आरक्षित पदों हे तु पात्र माना जायेगा। 40 प्रतिशत से कम OL Disability
होने पर अपने पैतक
ृ वर्ग में सामान्य अभ्यर्थियों की तरह आवेदन का पात्र
होगा। One Leg के अतिरिक्त किसी अन्य प्रकार की निःशक्तता होने पर
विशेष योग्यजन अभ्यर्थियों के लिये आरक्षित पदों के विरूद्ध नियक्ति
ु हे तु
पात्र नहीं होगा।
2. इस विज्ञप्ति के संदर्भ में विभाग द्वारा गठित मेडिकल बोर्ड की राय /
प्रमाण पत्र के आधार पर ही विशेष योग्यजन अभ्यर्थियों को आरक्षण का लाभ
दे य होगा।
13. सामान्य निर्देश -:
(viii) विशेष योग्यजन अभ्यर्थियों को इस भर्ती हे तु विभाग द्वारा गठित
मेडिकल बोर्ड की राय / प्रमाण पत्र के आधार पर ही आरक्षण का लाभ दे य
होगा। जिसके लिये अभ्यर्थी को विभाग द्वारा आमंत्रित किये जाने पर
मेडिकल बोर्ड के समक्ष उपस्थित होना होगा।”
19. Having perused rule 13 of the Rules of 1965 and Clause (viii)
of Para 13 of the advertisement, this Court is of the considered
opinion that the action of the appellant- State in directing
respondents to undergo medical examination during the process
of recruitment (document verification), despite their being in
possession of disability certificates issued by the competent
medical authority cannot be held to be bad in the eye of law for
the reason that right of an employer/recruiting agency to adjudge
suitability of a candidate for appointment to the posts in
conformity with the rules governing the service conditions cannot
be taken away.
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20. However, this Court is constrained to observe that the
Medical Board constituted by the appellant-State for conducting
medical examination should have limited itself to only examining
the respondents with respect to disability of less than 40% in one
leg(OL) as stipulated in the advertisement. The action of Medical
Board in subjecting the respondents to medical examination in
order to ascertain disability in other body parts is violative of the
purport and object of the Act of 1995 and 2016. This is for the
reason that the object behind enacting the above-mentioned
legislation is to include the person with special abilities while the
action of the respondents has resulted to the contrary i.e.
exclusion of the persons with special abilities.
21. The purport and object of the Act of 1995 was discussed by
Hon’ble the Supreme Court in the case of Syed Bashir Uddin
Qadri v. Nazir Ahmed Shah and others reported in (2010)3
SCC 603 which reads as under:
“47. It has to be kept in mind that this case is not one of the
normal cases relating to person’s claim for employment. This
case involves a beneficial piece of social legislation to enable
persons with certain forms of disability to live a life of purpose
and human dignity. This is a case which has to be handled with
sensitivity and not with bureaucratic apathy, as appears to
have been done as far as the appellant is concerned.”
22. Similarly, in the case of Union of India and Ors. v.
National Federation of Blind and Ors. reported in (2013)10
SCC 772, Hon’ble Supreme Court has held as under:
“23. India as a welfare State is committed to promote
overall development of its citizens including those who are
differently abled in order to enable them to lead a life of
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dignity, equality, freedom and justice as mandated by the
Constitution of India. The roots of statutory provisions for
ensuring equality and equalization of opportunities to the
differently abled citizens in our country could be traced in
Part III and Part IV of the Constitution. For the persons with
disabilities, the opportunities changing owing to world
offers technological more new advancement, however, the
actual limitation surfaces only when they are not provided
with equal opportunities. Therefore, bringing them in the
society based on their capabilities is the need of the hour.”
23. We find that the action(s) of appellant-State has resulted in
exclusion of eligible and meritorious candidates belonging to the
category of “persons with special abilities” and, therefore, the
same is contrary to the purpose and object which the legislature
intended to achieve by bringing these special beneficial
enactments, that is, non-discrimination, full and effective
participation and inclusion in society and equality of opportunity.
24. It is apposite to note here that Section 3 of the Act of 2016
mandates that the appropriate Government shall ensure that the
persons with disabilities enjoy the right to equality, life with
dignity and respect for his or her integrity equally with others.
Thus, if the action of the appellant-State in denying appointment
to the respondents despite their percentage of disability of 40%
or more being approved, based on the findings given by the
Medical Board constituted with reference to Note-1 appended to
Clause 3 and Clause (viii) of Para No.13 of the advertisement, in
relation to minor deformity in other body parts is accepted, the
same would counteract the object of the Act of 1995 and Act of
2016. The language used by the appellant-State in Clause 3 and
Clause (viii) of Para 13 of the advertisement is required to be read
in a manner that it fulfills the intention of the legislature and
produces the intended result.
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[2024:RJ-JD:34081-DB] (26 of 28) [SAW-572/2023]
Issue No.2
25. There is no quarrel with regard to the respondents
possessing requisites educational qualifications and registration
with Rajasthan Nursing Council for appointment on the post of
Nurse Grade II and Female Health Worker for the Non-TSP/TSP
area against the notified vacancies.
26. As per the respondents, in conformity with Section 32 of the
Act of 1995, a committee was constituted for identification of
posts for different categories of disabilities. The said committee
had taken a decision that the posts in question should only be
filled with candidates having disability in one leg- OL.
Indisputably, the respondents are claiming consideration of their
candidature against the posts reserved for PH OL- one leg
category. Learned Single Bench on 04.10.2020 at the time of
preliminary hearing of the writ petitions, directed the respondents
to appear before a Medical Board comprising of three doctors. The
report furnished by the Medical Board established that the
respondents are having permanent disability of more than 40% in
one leg. However, Medical Board on examining the respondents,
also found that the other leg/body part is also having some
deformity such as shortening or weaker muscle strength.
27. It is pertinent to note that learned Single Bench in order to
ascertain the percentage of disability and the nature of disability
suffered by the respondents directed one of the doctors who was
member of the above mentioned Medical Board to remain present
before the Court and recorded his statements in the following
manner:
“32. During the Court proceedings, Dr. Imran Sheikh in
unequivocal terms informed that the Board has given the report(Downloaded on 31/08/2024 at 08:30:43 PM)
[2024:RJ-JD:34081-DB] (27 of 28) [SAW-572/2023]in the format provided to it by the respondents. It was fairly
admitted by him that all the candidates, who appeared before
the Board on 18.03.2020, were having at least 40% disability in
one of their legs and in addition thereto, had little or more
deformity in other leg, for which the Board has given the report
dated 18.03.2020 and treated them to be PH- ‘BL’.”
28. The language of Section 2(t) of the Act of 1995 and Section
2(r) and Rule 2(s) of the Act of 2016 is clear and unambiguous
that reservation is to be extended to all the persons having
disability to the extent of 40% or more.
29. A bare look at the disability certificates issued in favour of
the respondents indicates that the percentage of disability
expressed/disclosed by the doctors in the medical examination
report(s)/disability certificate(s) issued in favor of the
respondents is with reference to a particular leg/limb only. There
is nothing on record to establish/indicate the percentage of
disability suffered by the respondents in other leg/other body
part. In the opinion of this Court, if a person is suffering from
disability to a certain extent in other leg or body part the same by
any stretch of imagination cannot be construed to mean that the
candidate shall not be fit to perform his/her duty. Partial
deformity/ shortening/ weakening of muscular strength in other
body part would not render a person ineligible to be appointed on
the advertised post, particularly when he/she is capable of
performing all the duties and functions attached to the advertised
post.
30. The intention of the legislation in bringing the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 and Rights of Persons with Disabilities
Act, 2016 is to ensure full participation of the people with
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[2024:RJ-JD:34081-DB] (28 of 28) [SAW-572/2023]
disabilities in public employment. A welfare state is under an
obligation to ensure that the person suffering from disabilities
should not be deprived from public employment despite their
possessing eligibility and merit to hold the post on hyper-technical
grounds or for ipse-dixit reasons. All-round efforts are required to
be made to ensure that no opportunity is left out for integration of
persons with special abilities into the social main stream to
achieve the ultimate object of enacting aforementioned special
legislations viz., all persons with special abilities shall get a
dignified life full of equal opportunities without any discrimination.
32. In view of aforesaid discussion, the action of the appellant-
State in denying appointment to the respondents under the PH
category (PH-OL category) is declared bad in the eye of law.
33. We uphold the direction issued by the learned Single Judge
to the appellant- State to prepare a fresh select/merit list for PH
category by placing the eligible respondents at appropriate place
in the select/merit list in their own category, keeping in view the
observations recorded by this Court with respect to above issues.
34. The necessary exercise in conformity with this order shall be
undertaken by the appellant- State within a period of 2 months
from the date of this Judgment. No order as to costs.
(KULDEEP MATHUR),J (SHREE CHANDRASHEKHAR),J
23-45-TarunGoyal/-
Whether fit for reporting: Yes/No.
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