Legally Bharat

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


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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,

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         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


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                                        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.


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                                                                    ----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


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                   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


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         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

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                                        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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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
having a certificate issued by competent authority – her

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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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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

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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 his

efficiency 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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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

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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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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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