Rima Taipodia vs Arunachal Pradesh Public Service Commission & Ors.

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 12856 OF 2017 [@ SPECIAL LEAVE PETITION (C) NO. 16518 of 2013 ]

RIMA TAIPODIA Appellant(s)

VERSUS

ARUNACHAL PRADESH PUBLIC SERVICE COMMISSION & ORS. Respondent(s)

J U D G M E N T

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 Signature Not Verified

and 5 read as follows:-

Digitally signed by JAYANT KUMAR ARORA Date: 2017.09.21 10:22:31 IST Reason: 2

“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 3

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.

4 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 5

of Cpper extremely read as :

1. ARM 1. Range of movement 5.9% COMPONENT (Elbow & Wrist)

2. Muscle Strength (Elbow & Wrist)

3. Co-ordinated 9% Activities

2. HAND 1. Prehension 4% COMPONENT

2. Sensation 3%

3. Strength 7%

3. Additional 1. Deformity 1% Weightage

2. Contructures 1%

3. Cosmetics 1% appearance

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.

6 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.

8

ITEM NO.11 COURT NO.5 SECTION XIV

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

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

RIMA TAIPODIA Appellant(s)

VERSUS

ARUNACHAL PRADESH PUBLIC SERVICE COMMISSION & ORS. Respondent(s)

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)