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Judgment
Biren Vaishnav, J
1 Heard Mr.K. B.Pujara, learned advocate for the petitioner, Mr.Utkarsh Sharma, learned AGP, for respondents Nos. 1 and 3, Ms.Jayani B Shah, learned advocate for respondent No.4 and Mr.Dhawan Jayswal, learned advocate for respondent No.2.
2 Rival claims by two physically handicapped candidates, namely, the petitioner and the respondent No.4 for the post of Associate Professor (Microbiology) with the Gujarat Medical Education and Research Society is an issue that needs to be decided by this petition.
3 The prayers in the petition reads as under:
“18(c) to direct the respondent Nos. 1 to 3 to verify / re-verify the actual disability of the Resp. 4 by examining him through a Multi-Member Medical Board, and to ascertain whether Resp. No.4 is really suffering from the “benchmark disability” of minimum 40% so as to be entitled to the benefit of reservation for physically Handicapped candidates under the Rights of Persons with Disabilities Act, 2016, before considering his candidature and before giving him the appointment as Associate Professor of Microbiology.”
4 It is the case of the petitioner that she has passed her MBBS, MD (Microbiology). She is a physically handicapped candidate suffering from Loco Motor Disability of Poliomyelitis. A Certificate of disability is annexed to the petition indicating 50% disability in case of the petitioner. Documents are also on record to indicate that because of such disability, she owns a adapted vehicle.
4.1 In an earlier round of litigation for a walk in interview for the post of Assistant Professor of Microbiology, she had approached this Court by filing Special Civil Application No. 20561 of 2016. By virtue of the order in the petition, she is appointed as an Assistant Professor in the physically handicapped category by an order dated 08.02.2019, modified on 01.03.2019. She now aspires to be appointed to the higher post of Associate Professor of Microbiology.
4.2 For the post of Associate Professor of Microbiology, when an advertisement was issued, wherein no vacancies were notified for physically handicapped categories, according to the petitioner, Dr.Sachin Kumar Mahendrabhai Patel, who had applied for an open category candidate and was selected for the post, the respondent No.4, Dr.Bhaumik V. Patel, also a physically handicapped category candidate approached the Commissioner of Disabled Persons, as a result of which, by virtue of the order dated 03.09.2019 in case No. 692 of 2018, a fresh advertisement was issued in compliance of the Right of Persons With Disabilities Act, 2016. The order of the Commissioner of Disabled Persons is a subject matter of Special Civil Application No. 1728 of 2019.
4.3 In the present petition, therefore, the prayer of the petitioner is that unless and until, the actual disability of the respondent No.4 is not examined by a Multi Member Medical Board to ascertain whether the respondent No.4 is really suffering from the “benchmark disability” of minimum of 40%, no appointment be given to the candidate before undertaking the scrutiny of his disability.
5 Mr.K.B.Pujara, learned counsel for the petitioner, would draw the Court’s attention to the representations made by the petitioner to the Secretary, Health & Family Welfare on 11.10.2021 requesting the authority to verify the actual disability of the respondent No.4 by a Medical Board before undertaking any process of appointment. A representation of even date was also made to the CEO of the Medical College, Gandhinagar. Looking to the prayers made in the petition, this Court on 04.01.2022 passed the following order:
“Draft amendment is granted. It is to be carried out forthwith.
NOTICE, returnable on 24.1.2022.
In the meantime, it will be open for the respondents to place on record the decision on the representations made by the petitioner on 11.10.2021 and 22.10.2021.
Direct service is permitted.”
6 Pending the petition, it appears that without taking a decision on the representations, the GMERS had issued an advertisement on 10.06.2022 inviting the online applications for teaching posts which included 14 posts of Associate Professors in Microbiology. The interviews are scheduled on 22.07.2022.
6.1 It appears that 26 aspirants have lodged their claims for the 14 posts at the interview.
6.2 It is the case of the petitioner as submitted by Mr.Pujara, learned advocate, that if without actually verifying the physical disability in the context of “benchmark disability” of the respondent No.4, based on the interview process if the respondent No.4 is selected and given appointment, then the present petition would stand wholly defeated because there will be no vacancy left for any P.H. candidate causing grave prejudice to her case.
6.3 Mr.Pujara, learned advocate, would further submit that specific averments have been made in the petition contending that the respondent No.4, who is claiming to have disability certificate of 40% is not genuine, inasmuch as, he is driving a car with a registration which is a normal vehicle and he possesses a normal driving license and not that of a physically handicapped person, which the petitioner specifically possesses.
6.4 The respondent No.4 was appointed as an Assistant Professor as a normal candidate and not on the ground of he being physically disabled candidate.
7 Despite the undisputed position, the question of eligibility for the post of Associate Professor which would require a tenure of four years in the post of Assistant Professor, Mr.Pujara, learned advocate, would submit that the petitioner has a locus to challenge the consideration of the respondent No.4. In support of his submission, he would rely on a decision in the case of Mohammed Faizal K.A vs. D.Sali & Anr., reported in (2017) 16 SCC 394 where, even if a candidate was to become eligible in future, the Hon’ble Supreme Court had held that the promotion could be challenged as he was an aggrieved person even then.
8 Mr.Dhawan Jayswal, learned advocate appearing for GMERS, would submit that the institution has a restricted role, inasmuch as, the advertisement had been issued pursuant to which applications are invited. The respondent No.4, has applied thereto and even otherwise, the question of disability of the respondent No.4 pursuant to the representations made by the petitioner are under investigation.
9 Ms.Jayani Shah, learned advocate for the private respondent No.4, would object to the maintainability of the petition and submit that this Court cannot go into the aspect of verification of disability. She would press into service Sections 56 to 59, Chapter-10 of the Right of Persons with Disabilities Act, 2016 and submit that once a certificate has been issued under the Act, any person aggrieved with such decision can file an appeal under Section 59. An affidavit-in-reply tendered by the counsel for the respondent when read, would indicate that the minimum experience required for the post of Associate Professor is an experience of five years as Assistant Professor or one year as Tutor / Resident along with 4 years as Assistant Professor. With the affidavit-in-reply, respondent No.4 disability are annexed which indicates that the respondent No.4 suffers from 40% permanent physical disability.
9.1 Ms.Shah, learned counsel, would question the bonafides of the petitioner in filing this petition and submit that rival claims of physical disability cannot be adjudicated before this Court.
10 Having considered the submissions made by the learned counsels for the respective parties, what is evident in considering the nature of prayer is that it is the stand of the petitioner that no appointment to the respondent No.4 be given unless his physical disability is verified / re-verified as giving the appointment without such verification would result in granting the benefit of wrongful reservation. On the basis of the decision of the Hon’ble Supreme Court which repeatedly held that such false claims of candidates on the strength of such certificates must be scrutinized lest deprive genuine claimants of reservation categories of their rights to the appointments.
10.1 As things stand today, pursuant to the representations made by the petitioner on 11.10.2021, what appears on record is that by a communication dated 24.11.2021, the respondent No.3 sought details from the respondent No.4 on his disability in context of the applications made by the petitioner. That issue therefore is at large before the competent authority under the Right of Persons With Disabilities Act, 2016. The Court will, therefore, not encroach into the arena of re-evaluating and re-examining the actual physical disability of the respondent No.4 in a writ jurisdiction under Article 226 of the Constitution of India.
10.2 Even otherwise, the case of the petitioner is that she having been appointed in February 2009, would stand to be eligible in 2023 for the post of Associate Professor and if any appointment is made to the respondent No.4 without actual verification of his disability, the petitioner would suffer irrepairable injury, inasmuch as, she will have to wait for another opportunity for an advertisement to apply for the post is not an issue which essentially was the prime purpose of filing of this petition. The prayers when read and couched in the manner is essentially for the Court to undertake inspection / investigation in respect of the disability of the respondent No.4. It is still an issue which is under investigation as stated hereinabove.
11 Needless to say that on the advertisement in question, when the process of appointment is undertaken for appointment to the post of Associate Professor, Microbiology, and in the event the respondent No.4 is found eligible, the respondent No.4 shall abide by the investigation that is under scrutiny by the respondent No.4 in view of the communication dated 04.11.2021 which indicates that the re-evaluation of the disability of the respondent No.4 is under scrutiny by the competent authority. In response to the representation made by the petitioner that scrutiny shall be undertaken and completed within a period of four weeks from the date of receipt of copy of this order. Any appointment, if made of the respondent No.4, shall be subject to the outcome of the order of the competent authority.
With the aforesaid observations, the petition is dismissed.