Dismissed

Sushree Sarita Swain v. State of Odisha

Orissa HC16 Dec 2024WP(C)/11911/2021

Case brief

AI extract

What is this about?

The Court dismissed the writ petition challenging the rejection of the petitioner's candidature for a reserved post. The High Court held that sickle cell disease is not a benchmark disability covered under Section 34 of the Rights of Persons with Disabilities Act, 2016 for reservation purposes. Consequently, the disability certificate issued in her favor was deemed applicable only for general faci

What did the court decide?

The writ petition was dismissed with no reservation of post granted to the petitioner.

Sushree Sarita Swain Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2024)

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 09-Jan-2025 15:50:24

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No. 11911 of 2021 (Under Article 226 and 227 of the Constitution of India)

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Sushree Sarita Swain …. Petitioner -versus- State of Odisha, represented through its Commissioner-cum-Secretary, Health and Family Welfare …. Department and Others Opposite Parties

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Advocate(s) appeared in this case:-

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For Petitioner : Ms. Saswati Mohapatra, Advocate For Opposite Parties : Mr. D. Mohanty, AGA Mr. N. Barik on behalf of Mr. B.P. Tripathy, counsel for O.P. 2 & 3

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CORAM: JUSTICE B.P. ROUTRAY

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JUDGMENT

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16^th December, 2024

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B.P. Routray, J.

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Heard Ms. S. Mohapatra, learned counsel for the Petitioner, Mr. D.

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Mohanty, learned AGA and Mr. N. Barik, learned counsel for Opposite Parties 2 and 3 (OPSC).

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The Petitioner is an applicant for the post of Dental Surgeon in

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terms of Advertisement No.11 of 2020-21. The Petitioner contends that

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WP(C) No.11911 of 2021

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Page 1 of 7

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 09-Jan-2025 15:50:24

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she is a disabled person and her certificate of disability dated 19^th March, 2020 under Annexure-1 is relating to permanent physical impairment up to 40% due to Sickle Cell disease. There are posts reserved for persons with disability in terms of the advertisement under Annexure-3. However, her candidature in PWD category was rejected by the authorities without taking note of her such disability as per the certificate at Annexure-1.

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The State has filed its counter stating that the persons with disability due to sickle cell disease do not have any right to be considered for reservation of posts under PWD category and therefore the contention of the Petitioner is unworthy of merit.

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The OPSC has also filed its counter stating that since the regulations of the Government did not contain sickle cell disease within the PWD category the candidature of the Petitioner for reservation within such category was rejected.

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As per the disability mentioned in the certificate at Annexure-1, Petitioner’s disability is due to sickle cell disease and she belongs to the category of disability caused due to sickle cell disease.

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WP(C) No.11911 of 2021

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Page 2 of 7

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 09-Jan-2025 15:50:24

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Section 34 of the PWD Act prescribes for reservation in Government establishment of such posts not less than 4%, specifying 1% in each such category mentioned at Section 34 of the Act. For ready reference, Section 34 of the Rights of Persons with Disabilities Act, 2016 is reproduced below:-

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“34. Reservation.—(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:—

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(a) blindness and low vision;

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(b) deaf and hard of hearing;

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(d) autism, intellectual disability, specific learning disability and mental illness;

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(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:

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Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

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WP(C) No.11911 of 2021

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Page 3 of 7

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Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 09-Jan-2025 15:50:24

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Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.

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(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:

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Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.

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(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.”

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Ms. Mohapatra, learned counsel for the Petitioner submits that,

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Rule 18 prescribes issue of certificate of disability in form-VI and as per

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the schedule of forms mentioned in the rules, it includes sickle cell disease (at Sl. No.21). Further Rule 8(3)(b) speaks that list of posts

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WP(C) No.11911 of 2021

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Page 4 of 7

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 09-Jan-2025 15:50:24

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identified suitable for persons with disability in the establishment should be provided with equal opportunity policy in the matter of employment.

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Therefore, when the disability certificate has been issued in favour of the Petitioner, her candidature at present cannot be denied in the PWD category.

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Such submissions put-forth on behalf of the Petitioner is not found convincible. It is for the reasons, first, that Rule 8(3) is meant for equal opportunity policy in a private establishment. Secondly, Rule 8 does not speak of any reservation for PWD candidates to the posts in employment. What is understood from the prescription of said rule that no person with physical disability should be deprived of equal opportunity in matters of recruitment. So, the submission of Ms. Mohapatra that it would be applicable to reservation of 3 persons with disability is a misconception.

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Similarly Rule 18 is for issuance of certificate of disability and as per rule 19, such certificates issued in respect of a person with disability shall entitle him to apply for facilities, concessions and benefits admissible for persons with disabilities under different schemes of Government and non-Governmental organizations funded by the Government. Therefore, the applicability of grant of certificate in favour

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WP(C) No.11911 of 2021

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Page 5 of 7

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 09-Jan-2025 15:50:24

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of person with disability in terms of Rule 18 cannot be extended for reservation to the posts of Government beyond the scope of Section 34 of the PWD Act.

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Section 34 of the Rights of Persons with Disability Act, 2016 specifies such categories of disability that includes physical disability, intellectual disability including mental behaviour or multiple disabilities. A thorough reading of Clause (a) (b), (c), (d) and (e) mentioned in subSection 1 of Section 34 does not attract the disability due to sickle cell disease within its ambit to entitle a person with disability of his right of reservation to a post of Government. What is seen from prescription of rules that the certificate of disability issued under Rule 18 of the Rights of Persons with Disability Rules is meant for such purposes for issuance of certificate, to be used for getting such facilities indicated in Rule 19. Therefore the implications of issuance of a certificate under Rule 19 is for a different purpose to grant facilities as per Rule 19 but not to get reservation of posts in matters of employment in Government Establishments. Section 34 of the Rights of Persons with Disabilities Act, 2016 has its applicability and a holder of certificate in terms of Rule 18 cannot include into such sphere of reservation mentioned in Section 34 without being covered within the scope and ambit of said section.

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WP(C) No.11911 of 2021

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Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 09-Jan-2025 15:50:24

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Therefore the claim of the Petitioner to get reservation in a post for employment in Government Establishment with the disease of sickle cell

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does not merit any consideration and the same is accordingly rejected.

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The writ petition is dismissed.

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(B.P. Routray) Judge

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M..K. Panda, P.A.

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WP(C) No.11911 of 2021

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Sushree Sarita Swain v. State of Odisha

Case brief

What is this about?

What did the court decide?

Sushree Sarita Swain v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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