SARVAIYA BHAVESHKUMAR KARSHANBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr.Gautam Joshi learned Senior Advocate with Mr.Vyom Shah learned advocate for the petitioner, Ms.Surbhi Bhati learned AGP for respondent nos.1, 8 and 9 and Mr.Amar Mithani learned advocate for respondent nos.2, 3, 4 and 6. Though served, no one appears for respondent nos.5 and 7.

(2.) This petition under Article 226 of the Constitution of India, filed by a candidate who suffers from myopic retinal degeneration, challenges his non-selection to the post of non-teaching junior clerk under the respondent university. The case of the petitioner is that an advertisement was issued on 1/6/2019 for several posts including the post of junior clerks. The advertisement stipulated that there will be reservation for physically disabled candidates if they suffer disability to the extent of 40% to 75%. The petitioner applied for the post. He was successful in the criteria of written test and computer proficiency test. The merit list for counseling and certificates was published. The name of the petitioner reflected at Sr. No.207 and that of the respondent no.7 reflected at Sr. No.470. In case of the petitioner a remark was made in the merit list that since the petitioner suffers from temporary physical disability which is not of a permanent nature, his candidature shall not be considered against the reserved vacancy for physically disabled candidate. This was pursuant to a certificate issued by the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India, of the Superintendent/Civil Surgeon, Bhavnagar, which indicated that the petitioner suffered from 40% disability. The remark further indicated that it was temporary for five years given by the General Hospital, Botad.

(3.) Mr.Joshi learned Senior Advocate for the petitioner would submit that aggrieved by his non-selection, he approached the competent authorities under the Right of Persons with Disabilities Act 2016. The authority by an interim order dtd. 24/9/2021, ordered that the petitioner be reexamined and a fresh certificate be obtained in view of the earlier certificate, certifying the disability of the petitioner for a period of five years Based on this interim order, the petitioner approached the Board of Referees MNG Institute of Ophthalmology and a certificate was granted on 20/10/2021, opining that the petitioner suffered from a disability which is permanent and may be progressive. Armed with this certificate, the petitioner would therefore contend that the mark of non-selection on the ground of the petitioner being temporarily disabled, was inappropriate.