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Rima Taipodia Vs. Arunachal Pradesh Public Service Commission & Ors.

[Civil Appeal No. 12856 of 2017 @ Special Leave Petition (C) No. 16518 of 2013]

KURIAN, J.

1. Leave granted.

2. The appellant is before this Court, aggrieved by the order dated 02.04.2013 passed by the High Court of Gauhati in Writ Appeal No. 06 of 2012. 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:-

(1) A Disability 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/Visual including low vision/hearing and speech disability, mental retardation and leprosy cured, as the case may be.

5.

(1) 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 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 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 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.

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 33.9%. The assessment made by the State Medical Board reads as follows :-

"Medical Board in respect of Mr.Rima Taipodia In reference to Supreme Court, Dated 26.04.2017 and in compliance with Chief Medical Superintendent, Tomo Riba State Hospital, Naharlagun order No. ASH/MLC-1383/ 2011/pt-I-838-44, dated Naharlagun the 18th May, 2017 to ascertain the degree of Disability of Mr. Rima Taipodia on 30.05.2017 at 10.00 AM in the State Standing Medical Board Room of Tomo Riba State Hospital, Naharlagun.

On examination Shri Rima Taipodia has got within normal range of vital status but has suffered from Volksman Ischemic Contractured of Left Hand following fractured of Both Bone Forearm during childhood.

So, the disability components of Cpper extremely read as :

1.

ARM COMPONENT

1. Range of movement (Elbow & Wrist)

5.9%

 

 

2. Muscle Strength (Elbow & Wrist)

 

 

3. Co-ordinated Activities

9%

2.

HAND COMPONENT

1. Prehension

4%

 

 

2. Sensation

3%

 

 

3. Strength

7%

3.

Additional Weightage

1. Deformity

1%

 

 

2. Contructures

1%

 

 

3. Cosmetics appearance

1%

 

 

4. Abnormal Mobility

2%

TOTAL DISABILITY %

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. Sanjay Parikh, learned counsel, has vehemently contended that at the time of the appellant securing the employment based on certificate 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 certified that either a person is suffering from permanent disability 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 in the Certificate that the Certificate is for a particular period of validity. In the case of the appellant, the certificate relied on by him is not time bound and so, there are no chances of variation in the degree of disability, meaning thereby, it is meant to be a permanent disability. If the State Medical Board has assessed the disability to be below 40%, that only means that the appellant 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.

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. 7 Meenakshi Lekhi, learned counsel appearing for Respondent 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 accordance with law.

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.

.......................J. [KURIAN JOSEPH]

.......................J. [R. BANUMATHI]

New Delhi;

September 14, 2017.

Item No.11 Court No.5 Section XIV

Supreme Court of India

Record of Proceedings

Rima Taipodia Vs. Arunachal Pradesh Public Service Commission & Ors.

[Petition for Special Leave to Appeal (C) No. 16518 of 2013]

Date: 14-09-2017

This matter was called on for hearing today.

CORAM:

HON'BLE MR. JUSTICE KURIAN JOSEPH

HON'BLE MRS. JUSTICE R. BANUMATHI

For Appellant(s)

Mr. Sanjay Parikh, Adv.

Mr. Pukhrambam Ramesh Kumar, AOR

Mr. Uday Manaktala, Adv.

Mr. Rajan Mani, Adv.

For Respondent(s)

Mr. Ginnyu J. Raotray, Adv.

Ms. Kanchan Kaur Dhodi, AOR

Ms. Bhawna Pal, Adv.

Ms. Meenakshi Lekhi, Adv. (Appearance slip not given)

Mr. Harish Pandey, AOR

Mr. Anil Shrivastav, AOR

UPON hearing the counsel the Court made the following

O R D E R

Leave granted.

The appeal is dismissed in terms of the signed reportable Judgment. Pending Interlocutory Applications, if any, stand disposed of.

Jayant Kumar Arora

Renu Diwan

Court Master

Assistant Registrar

Signed reportable Judgment is placed on the file



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