[2017] 9 S.C.R. 524

RIMA TAIPODIA

ARUNACHAL PRADESH PUBLIC SERVICE COMMISSION &

ORS.

(Civil Appeal No. 12856of2017)

SEPTEMBER 14, 2017

(KURIAN JOSEPH AND R. BANUMATHI, JJ.]

Service law - Appointment - Appellant-disabled candidate C seeking appointment to the Group B post - Requirement of minimum

40% disability - Certificate on basis of which appellant appointed not issued by the State Medical Board - Issuance of direction by the High Court to the appellant to appear before the State Medical Board for assessment of his disability - On examination, appellant found to have total disability of only 33.9% - Held: Under the Rules, D it. is required to be certified that either a person is suffering from permanent disabili!Ji where there are no chances of variation in the degree of disability and if there is any chance of variatiOn in the degree of disability, it should be indicated iii the Certificate that the Certificate is for a particular period of validity - Certificate relied E on by the appellant not time bound, thus, no chances of variation in the degree of disability- It was meant to be a permanent disability

- State Medical Board has assessed the disability to be below 40%,

which meant that the appellant did not have 40% disability, as required under law - Thus, the State to take appropriate action, to appoint the next person - Persons with Disabilities (Equal F Opportunities, Protection of Rights and Full Participation) Rules, 1996.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12856 of2017.

From the final Judgment and Order dated 02.04.2013 passed by G the High Court of Gauhati, Itanagar Permanent Bench in Writ Appeal

No.06 (AP) 2012. -

Sanjay Parikh, Pukhrambam Ramesh Kumar, Uday Manaktala, Rajan Mani, Advs. for the Appellant.

RIMA TAIPODIA v. ARUNACHAL PRADESH PUBLIC 525

SERVICE COMMISSION & ORS.

Ginnyu J. Raotray. Ms.Kanchim Kaur Dhodi, Ms. Bhawna Pal, A Ms. Meenakshi Lekhi, Harish Pandey, Anil Shrivastav, Advs. for the Respondents.

The Judgment of the Court was delivered by

KURIAN, J. 1. Leave granted.

2. The appellant is before this Court, aggrieved by the order dated 02.04.2013 passed by the Hig~ Court ofGauhati in Writ Appeal No. 06 of2012. The appellant has been directed by the High Court to appear before the State Medical Board to have an assessment of his disability, for the Group-B post, in which he sought appointment.

3. The requirement was minimum 40% disability. That disability is to be verified under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996. Rules 4 and 5 read as follows:-

"4. Authorities to give Disability Certificate:- ( l) A Disability D Certificate shall be issued by a Medical Board duly constituted by the Central and the State Government.

(2) The State Government may constitute a Medical Board consisting of at. least three members out of which at' least one shall be a specialist in the particular field for assessing locomotor/ E Visual including low vision/hearing and speech disability, mental retardation and leprosy cured, as the case may be.

5. (I) The Medical Board shall, after due examination, give a permanent Disability Certificate. in cases of such permanent disabilities where there are no chances of variation in the degree F of disability.

(2) The Medical Board shall indicate the period of validity in the certificate,. in cases where there is any chance of variation in the degree of disability.

{3) No refusal of Disability Certificate shall be made unless an G opportunity is given to the applicant of being heard.

(4) On representation by the applicant, the Medical Board may review its decision having regard to all the facts and circumstances of the case and pass such order in the matter as it thinks fit."

4. It is not in dispute that the appellant has never been examined by the State Medical Board. The certificates, based on which the appellant was appointed, were admittedly not issued by the State Medical Board. Apparently, it is in this regard that the High Court directed the appellant to appear before the State Medical Board.

5. On 26.04.2017, having regard to the submission that he would appear before the State Medical Board, without prejudice to his contentions, this Court passed the following order :-

"The petitioner has volunteered to appear before the State Medical Board in order to clear all the doubts. We direct the Arunanchal c Pradesh State Disability Board to examine the petitioner.

Needless to say that the Board should have a qualified Orthopedician. We direct the petitioner to appear before the Board in the last week of June, 2017. The exact date on which he has to appear will be intimated to him by the Board.

D It is made clear that this is without prejudice to the contentions

raised by the petitioner in this Special Leave Petition.

List on 21.07.2017.

The Board will send its report to this Court before the next date of hearing."

6. Accordingly, the State Medical Board has subjected the appellant to the required examination and the disability has been assessed and the appellant is found to have a total disability of only 3 3 .9%. The assessment made by the State Medical Board reads as follows :-

F "Medical Board in respect of Mr.Rima Taipodia

In reference to Supreme Court, Dated 26.04.2017 and in compliance with Chief Medical Superintendent, Torno Riba State Hospital, Naharlagun order No. ASH/MLC-1383/ 20 I I/pt-1-838- 44, dated Naharlagun the I 8'h May, 2017 to ascertain the degree G of Disability of Mr. Rima Taipodia on 30.05.2017 at I 0.00 AM in the State Standing Medical Board Room of Torno Riba State Hospital, Naharlagun.

On examination Shri Rima Taipodia has got within normal range of vital status but has suffered from Volksman Jschem; c

! ! ' 1

RIMA TAIPODIA v. ARUNACHAL PRADESH PUBLIC. 527

SERVICE.COMMISSION & ORS. [KURIAN, J.J

Contractured of Left Hand following fractured of Both Bone A Forearm during childhood. So, the disabilitycomponents ofCpper extremely read as : ·

ARM I. Range of movement 5.9% COMPONENT {Elbow & Wrist)·

2. Muscle Strength (Elbow & Wrist) .

3. Co-ordinated 9% Activities .

HAND

l. Prehension 4%

COMPONENT .

2. Sensation 3% .

3. Strength 7% ., Additional

1. Deformity 1% .) .

Weightage ·

2. Contructures !% .

3. Cosmetics appearance 1%

4. Abnormal Mobility 2%

TOTAL DlSABlLITY % 33.9%

Therefore, the Standing Medical board certify that Mr. Rima Taipodia has got Disability of 33.9% (Thirty Three Point Nine) his left upper Extremely (Hand)."

7. Mr. San jay Parikh, learned counsel, has vehemently contended that at the time of the appellant securing the employment based on ct::rtificate issued in 2009, the disability was found to be 50% and according to the learned counsel, going by the. nature of disability, the situation today has improved and thus, the disability is presently below 40%, We find it difficult to appreciate this contention.

8. Under the Rules, it is required to be ce1tified that either a person is suffering from permanent disability where there are no chances of variation in the degree of disability and ifther!) is any chance of variation in the degree of disability, it should be indicated in the Certificate that the H

A . Certificate is for a particular period of validity.In the case ofthe appellant,

.! the certificate relied on by him is not time bound and so, there are no chances of variation)n the degree of.disability, meanmg thereby,' it is meant to be a permanent disabflity. If the State Medical Board has assessed the disability to be below 40%, that only means that the appellant B did not have 40% disability, as required under law. Thus, we do not find any merit in this appeal, which is, accordingly, dismissed.

9. Now that the appellant has been subjected to examination by the State Medical Board, it is not necessary to subject him to examination by another medical board unless the appellant seeks a review thereof. c

10. Now that the appellant has been found to be of disability below

the required percentage, it is for the respondent-State to take appropriate action. Ms, Meenakshi Lekhi, learned counsel appearing for Rspondent No.3, submits that Respondent No. 3, whose certificate shows to be having 75% permanent disability, is the person next to be appointed. The State is directed to take immediate action, in accordancewith Jaw ..

11. We make it clear that in case Respondent No. 3 is the one who is to replace the appellant in the category of persons of disability, steps will be taken forthwith. ·

No costs.

Nidhi Jain Appeal dismissed.