Disposed

Pratik Srichandan v. State of Odisha

Orissa HC22 Aug 2024WP(C)/37200/2023

Case brief

AI extract

What is this about?

The Orissa High Court held that a candidate with Locomotor Disability and Haemophilia qualifies for the 'Multiple Disabilities' category (UR_PWD_IV) under relevant statutes. The Court directed the Odisha Public Service Commission to reconsider the petitioner's classification in the Select List for the Odisha Civil Services Examination, 2021.

What did the court decide?

Directed the Odisha Public Service Commission to reconsider the petitioner's case in the Select List and rectify the category classification within six weeks.

Pratik Srichandan Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2024)

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ORISSA HIGH COURT : CUTTACK

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W.P.(C) No.37200 of 2023

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In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950

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Pratik Srichandan Aged about 31 years Son of Umesh Chandra Srichandan At/P.O.: Kudiary, P.S.: Jatni District: Khordha, At present working as Junior Administrative Officer in AIIMS, Bhubaneswar District: Khordha, Odisha … Petitioner.

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-VERSUS-

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1. State of Odisha represented through Secretary Department of General Administration Lok Seva Bhawan, Bhubaneswar District: Khordha. 2. Odisha Public Service Commission At: Cantonment Road, P.O.: G.P.O. Cuttack, District: Cuttack represented through Secretary. 3. The Commissioner- cum -Secretary Department of Social Security & Empowerment of Persons with Disabilities, Government of Odisha Lok Seva Bhawan, Bhubaneswar District: Khordha. … Opposite parties.

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W.P.(C) No.37200 of 2023

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Page 1 of 41

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Counsel appeared for the parties:

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For the Petitioner : M/s. Manash Ranjan Mohanty, Prabir Kumar Ray, A.R. Sethi, Advocates

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For the Opposite party : Mr. Arnav Behera Nos. 1 and 3 Additional Standing Counsel For the Opposite party : Mr. Tarun Patnaik, No.2 Advocate

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P R E S E N T:

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HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

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Date of Hearing : 14.08.2024 :: Date of Judgment : 22.08.2024

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JUDGMENT

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Questioning the placement of the petitioner under Category “Cat-III-(OH)”; “UR_PWD_III” [Unreserved, Persons with Disability of Category-III] vide Select List (Annexure-7) prepared by the Odisha Public Service Commission, Cuttack-opposite party No.2, in connection with the Odisha Civil Services Examination, 2021 in pursuance of Advertisement No.25 of 2021-22, the instant writ petition has been filed craving to invoke extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India.

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1.1. Seeking a direction to the opposite parties to correctly classify the “Multiple Disabilities” in the Select List under the Category “UR_PWD_IV” in place of

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W.P.(C) No.37200 of 2023

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Page 2 of 41

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“UR_PWD_III” against Serial No.172 of the Select List, as there has been misclassification of the category inasmuch as the petitioner suffers “Multiple Disabilities” within the meaning of the Rights of Persons with Disabilities Act, 2016 read with the disability specified in Schedule as per clause (zc) of Section 2 and the Resolution No.1843—SSEPD-DA-0003/2020/SSEPD, dated 25.02.2021 of the Government of Odisha [published in the Extraordinary issue No.382 of Odisha Gazette dated 04.03.2021] and Annexure-II— “Guidelines for the purpose of assessing the extent of specified disability in a person included under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)” appended to Notification No.S.O.76(E), dated 04.01.2018 of Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)], published in Extraordinary issue No.61 of the Gazette of India, dated 05.01.2018].

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Facts:

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2. Shorn off unnecessary details of facts, suffice it to notice for the purpose of present matter the following facts as pleaded in the writ petition.

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2.1. An advertisement being No.25 of 2021-22 was published in the year 2021 by the Odisha Public Service Commission-opposite party No.2 for recruitment of 405 numbers of the Posts and Services coming under the

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W.P.(C) No.37200 of 2023

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Page 3 of 41

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Odisha Civil Services (Group-A and Group-B), pursuant to which the petitioner applied for the said Civil Services Examination, 2021 and his name found place at Serial No.172 in the Select List prepared by the opposite party No.2 and the same was submitted to the Government of Odisha-opposite party No.1, wherein the petitioner has been placed under Category “Cat-III (OH)”; “UR_PWD_III”. For convenience, said Select List is extracted hereunder:

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“ Odisha Public Service Commission Odisha Civil Services Examinaion-2021

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(ADT. No.25 of 2021-22)

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Select List

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Sl. No.	Roll	Name	Cate gory to whic h belon _gs _	Gender	EX SM	SPO RTS	PH Category	PH %	Sele ct Und er Cat egor y
***	***	***	***	***	***	***	***	***	***
172	315715	Pratik Srichandan	UR	Male			Cat-III (OH)	50%	UR_ PWD _III
***	***	***	***	***	***	***	***	***	***”

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2.2. The Disability Certificate issued on 07.05.2020 by the Medical Authority, Khordha (Annexure-4) as per Rules 17 and 18 of the Rights of the Persons with Disabilities Rules, 2017, certified that the case of the petitioner is of two categories of disabilities as specified under the Schedule appended in terms of clause (zc) of Section 2 of the PwD Act, 2016. The contents of said Certificate are as follows:

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Page 4 of 41

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“Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India Disability Certificate

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Issuing Medical Authority, Khordha, Odisha

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Certificate No: OD1740619910097096 Date:07/05/2020

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This is to certify that I/We have carefully examined Shri Pratik Srichandan Son of Shri Umesh Chandra Srichandan Date of Birth 25/09/1991 Age 26 Year(s) Male, Registration No.2117/00000/1711/0466103 resident of House No. at: Kudiary, P.O.: Kudiary, P.S.: Jatni-752050 Sub-District: Jatani District: Khordha State/ UTs Odisha, whose photograph is affixed above, and I/We satisfied that:

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(A) He is a case of Locomotor Disability

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(B) The diagnosis in his case is HAEMOPHILIA WITH MULTIPLE INVOLVEMENT JOINTS WITH GROSS DEFORMITY

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(c) He has 50% (in figure) Fifty percent (in words) Permanent in relation to his (Left Leg, Right Leg, Elbow, Knee) as per guidelines (to be specified).

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The applicant have been submitted the following document(s) as proof of residence:

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Nature of Document(s): Aadhar Card

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Sd/-

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Signature/Thumb impression of the Person with Disability

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Sd/-

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Signature of notified Medical Authority Member

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Sd/Issuing Medical Authority, Khordha, Odisha”

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Page 5 of 41

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2.3. The petitioner, certified on 07.05.2020 by the Medical Authority, Khordha, Odisha as a case of “locomotor disability” and diagnosed as “Haemophila with multiple involvement joints with gross deformity”, has been placed under the Category-“Cat-III (OH)” — “UR_PWD_III” in the Select List which is objected to in the writ petition as being not in consonance with the category as per the disabilities specified in Schedule appended in terms of clause (zc) of Section 2 of the Rights of Persons with Disabilities Act, 2016 (for brevity “the PwD Act, 2016”) and the Resolution No.1843— SSEPD-DA-0003/2020/SSEPD, dated 25.02.2021 of the Government of Odisha vide Odisha Gazette, Extraordinary No.382 dated 04.03.2021 and AnnexureII— “Guidelines for the purpose of assessing the extent of specified disability in a person included under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)” appended to Notification No.S.O.76(E), dated 04.01.2018 of Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)] vide the Gazette of India, Extraordinary No.61, dated 05.01.2018.

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2.4. It is claimed by the petitioner that in the OnLine Application Form, while applying for the post of Odisha Civil Services, 2021, he has filled in inter alia as follows:

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Personal Details
	***	***

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Category applied for	:	Unreserved
Special Category applied	:	Category-IV (Multi	ple Disabilities)
		i) Nature of disability :	Permanent
		ii) Disability Percentage :	50%
***	***	***	***
Document Details
***	***	***	***
Category-IV (Multiple Disabilities) Disability Certificate	OD1740619910097096	07/05/2020	Khordha Hospital, Odisha
***	***	***	***”

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2.5. It is pleaded by the petitioner that the opposite party No.2-OPSC has issued “Admission Certificate for PWD Candidates” for the Odisha Civil Services (Main) Examination, 2021 in pursuance of Advertisement No.25 of 2021-22 depicting “PWD-IV (MD) (50%)”. Notwithstanding overwhelming evidence available on record, in the Select List, he has been placed under the Category “Cat-III (OH)— 50%— UR_PWD_III”, which is flagrant error of record.

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2.6. In connection with his grievance petition highlighting aforesaid factual aspects before the opposite party No.2-

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OPSC, a Letter No.6969/PSC, dated 07.09.2023 has been issued addressed to the OSD to the Chief Secretary, Government of Odisha, Bhubaneswar, with the following contents:

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“With reference to the Letter on the subject cited above, I am to inform that, the candidate Sri Pratik Srichandan bearing Roll No. 315715 had applied under PwD Category (Category-IV), i.e., Multiple Disability for the post of Odisha Civil Services, 2021. But on verification of his Disability Certificate at the time of Document Verification, it was found that, his disability comes under the category of Locomotor Disability (i.e., Category-III). In view of this, the Commission has considered his candidature under Category-III and he has recommended under Category-III (OH) for Odisha Civil Services, 2021 and placed at Serial No.172 of the Select List.

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In this context, it is also submitted that, earlier the candidate Sri Pratik Srichandan had also represented before the Commission for ventilating his grievance, whereupon the Commission after careful consideration have forwarded his representation to the Government in General Administration and Public Grievance Department vide this Office Letter No.6583/PSC, dated 19.08.2023 to refer his case to the Medical Board to ascertain his actual PwD category prior to his cadre allotment. A copy of the aforesaid letter is enclosed herewith for kind reference.

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This may be placed for favour of kind information of the Chief Secretary, Odisha.”

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2.7. In the Special Medical Board comprising of team of medical officers, including Chief Medical & Public Health Officer, Cuttack; Professor & HoD, Department of

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General Medicine; Professor & HoD, Department of Orthopaedics; Assistant Professor, Department of Ophthalmology; Professor & HoD, General Medicine; Assistant Professor & Nodal Officer (BSKY), Department of Clinical Hematology; Associate Professor, I/c HoD, Department of Radio-Diagnosis; Assistant Professor, Department of Pathology; Assistant Professor, MHI; Assistant Professor, Department of Surgery; Assistant Professor, Department of ENT; and Assistant Professor, Department of Neurology, all are of Srirama Chandra Bhanja Medical College & Hospital, Cuttack having examined at SCB MCH, Cuttack, opined on 08.09.2023 that the petitioner suffers “Total Disability : 50% (Fifty Percentage) and Category : IV (MD)”.

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2.8. The petitioner, accordingly, submitted a grievance petition dated 15.09.2023 before the Additional Secretary, General Administration and Public Grievance Department, opposite party No.1, with a request to effect correction in the result of the Odisha Civil Services, 2021 by classifying the Category from Orthopaedically Handicapped (OH) to Multiple Disabilities (MD). Since it yielded no result, the petitioner approached this Court by way of filing a writ petition being W.P.(C) No.32142 of 2023, which came to be disposed of vide Order dated 10.10.2023 with the following observation and direction:

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“***

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Page 9 of 41

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3. The present writ petition has been filed with the following prayer:-

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“(a) why the petitioner shall not be selected under ‘Category IV of PwD’ by rectifying his result in view of the opinion/certificate issued the Medical Board on by

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dt.08.09.2023.

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(b) why the opposite parties shall not make fresh allotment of Post in view of correction in the category of Disability of the Petitioner.

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(c) why any other suitable order(s)/direction(s) as deem fit and proper shall not be passed by this Hon’ble Court in the ends of justice.”

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4. He further submits that through highlighting his grievances, the petitioner has filed a representation at Annexure-9 to the Writ Petition before the opposite party No.1, but till date nothing has been done in the matter. In such background, he prays that a direction be issued to opposite party No.1 to take a decision on the above noted petition within a specific time period.

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5. Considering the submissions made and without expressing any opinion on the merits of the case, this Court directs opposite party No.1 to take a decision on the above noted petition in accordance with law within a period of three months from the date of production of certified copy of this order and communicate the result of such exercise to the petitioner.

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6. The writ petition is accordingly disposed of.”

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2.9. The opposite party No.2-OPSC communicated a Letter bearing No.7445/PSC, dated 29.09.2023 to the Additional Secretary to Government, General Administration and Public Grievance Department, which reads as follows:-

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“Odisha Public Service Commission 19, Dr. P.K. Parija Road, Cuttack-1 No.7445/PSC Dt.29.09.2023

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From: Sri R.C. Palata, OAS (SS) Secretary. To: The Additional Secretary to Government General Administration & P.G. Department Lokseva Bhawan, Bhubaneswar

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Sub: Grievance petition of Sri Pratik Srichandan, a PWD category selected candidate of OCSE2021, bearing Roll No.315715.

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Ref: G.A. & P.G. Deptt. Letter No.27530/SCS, Dated 18.09.2023.

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Sir,

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With reference to the Letter on the subject cited supra, I am directed to inform that, the candidate Sri Pratik Srichandan, a PwD category selected candidate for Odisha Civil Services Examination2021 bearing Roll No.315715 & PPSAN 00031709 had applied online for the recruitment to OCS-2021 claiming Multiple Disability under category IV of the SSEPD Department Resolution No.1843, Dtd25.02.2021. But he had uploaded the Disability Certificate bearing No.OD1740619910097096, issued by the Medical Authority, Khordha on

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07.05.2020 showing a case of Locomotor Disability under Category-III of the Resolution cited supra.

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During Document Verification of OCS-2021, he also produced the said uploaded Disability Certificate (copy enclosed) having Locomotor Disability with 50% Permanent under Category-III, which reflects the disability as under:

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(a) He is a case of Locomotor Disability.

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(b) The diagnosis in his cased is Haemophilia with Multiple involvement joints with gross deformity.

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(c) He has 50% percent permanent in relation to his (left Leg, Right Leg, Elbow, Knee) as per guidelines (to be specified)

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In this context, it is stated that, SSEPD Deptt. Resolution No.1843, Dtd.25.02.2021 does not include Haemophilia under Category-IV(e) (i.e. Multiple Disability) rather, Category-IV(e) stipulates that “Multiple disability from amongst persons under clause (a) to (d) including deaf-blindness in the posts identified for each disability from time to time”.

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Hence, in conformity with the aforesaid provisions of SSEPD Deptt. Resolution Dtd-25.02.2021 and taking into account the Disability Certificate uploaded by the candidate along with online form and produced during Document Verification, the Commission after careful consideration have recommended the candidate Sri Pratik Srichandan under UR, PwD Category-III (i.e. Locomotor Disability) instead of PwD category-IV (i.e. Multiple Disabilities).

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This is for favour of information and necessary action.”

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Counter affidavit of the opposite party No.1:

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3. It has been affirmed by the opposite party No.1 by way of counter affidavit filed before this Court on 21.02.2024 that,

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“*** after his selection by the OPSC and before the allocation of service, the petitioner submitted a representation dated 15.09.2023 in General Administration and Public Grievance Department *** requesting to rectify his PwD category from Cat-III-OH to Cat-IV (Multiple Disability) as during the OnLine application he had applied under Category IV (Multiple Disability) and also during the mandatorily required medical examination before the Specialized Medical Board, SCB Medical College & Hospital, Cuttack, which was held during the period from 01.09.2023 to 08.09.2023 (8 days), he was found to be under CategoryIV (Multiple Disability) with 50% disability. Due to the aforesaid disparity in the PwD category selection of the petitioner, the Secretary, OPSC, Cuttack was requested to kindly clarify on the selection of the petitioner under CatIII-OH instead of Category-IV (Multiple Disability) vide General Administration and Public Grievance Department Letter No.27530/SCS, dated 18.09.2023 ***.

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The Secretary, OPSC, Cuttack vide his letter No. 7445/PSG dated 29.09.2023 *** justified the selection of the petitioner under Cat_III_OH as per disability certificate submitted by the petitioner and as per the provision in SSEPD Department Resolution No. 1843 dated 25.02.2021 *** According to the OPSC, the petitioner case is a case of Locomotors Disability and Haemophilia with

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50% permanent disability (as per the disability certificate submitted by him). However, SSEPD Department Resolution No. 1843 dated 25.02.2021 does not contain Haemophilia under category-IV(e) (i.e., Multiple Disability). Therefore, as per above provision of SSEPD Department resolution and disability certificate submitted by the petitioner, he has been recommended by the OPSC under UR-PwD Category-III (i.e. Locomotor Disability) instead of PwD category-IV (i.e. Multiple Disabilities) and the same recommendation of the OPSC had been accepted under kind Government Orders. Accordingly, he has been allocated with Odisha Finance Service.

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That, prior to the present writ petition the petitioner filed another WP(C) No. 32142 of 2023 in the Hon’ble High Court of Orissa, Cuttack with a prayer to direct the opposite parties to rectify his PwD category of selection as per the opinion/certificate issued by the Medical Board on dated 08.09.2023 which is Category-IV (Multiple. Disability) and to do fresh service allotment under revised category. In pursuant to the Order No. 01 dated 10.10.2023 of the above writ petition, the-representation dated 15.09.2023 of the petitioner *** was examined and same, was regretted taking into account the submission of the OPSC and as per SSEPD Department Resolution No. 1843 dated 25.02.2021, vide General Administration and Public Grievance Department Office Order No. 3636/SCS dated 05.02.2024 under intimation to the petitioner.”

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Hearing:

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4. Heard Sri Manas Ranjan Mohanty, learned counsel appearing for the petitioner; Sri Arnav Behera, learned Additional Standing Counsel appearing for the State of Odisha-opposite party Nos.1 and 3 and Sri Tarun

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Patnaik, learned Advocate appearing for the opposite party No.2-Odisha Public Service Commission.

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4.1. As the pleadings are complete, on consent of the counsel for the parties, this matter is taken up for final hearing on 14.08.2024 and having concluded the hearing, the matter was kept reserved for preparation and delivery of Judgment.

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Arguments of counsel for the parties:

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5. Mr. Manas Ranjan Mohanty, learned counsel appearing for the petitioner submitted that the decision taken by the Odisha Public Service Commission-opposite party No.2 is outcome of misinterpretation of the expression “Multiple Disabilities from amongst persons under clause (a) to (d) including deaf-blindness in the posts identified for each disability time to time” as contained in Category-IV(e) of the Department of Social Security and Empowerment of Persons with Disabilities Resolution No.1843-SSEPD-DA-4-DA-0003/2020/SSEPD dated 25.02.2021.

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5.1. Restricted meaning as attributed to the term “Multiple Disabilities” as employed in said Resolution dated 25.02.2021 by the OPSC is tainted with misconceived notion and, hence, the Category under which the petitioner was placed in the Select List is on account of thorough misreading of “Multiple Disabilities” within the

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meaning of the Rights of Persons with Disabilities Act, 2016 read with the disability specified in Schedule as per clause (zc) of Section 2 and Annexure-II— “Guidelines for the purpose of assessing the extent of specified disability in a person included under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)” appended to Notification No.S.O.76(E), dated 04.01.2018 of Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)].

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5.2. It is submitted by the learned counsel for the petitioner that the stand taken in the counter affidavit supporting the reason assigned in the Letter dated 29.09.2023 (Annexure-11) runs counter to the meaning ascribed to the “Multiple Disabilities” in the aforesaid Act and the notification issued by the Central Government.

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5.3. It is contended that the Ministry of Social Justice and Empowerment in the Department of Empowerment of Persons with Disabilities (Divyangjan) vide Notification No. S.O.76(E), dated 04.01.2018 having clarified that the “Multiple Disabilities” means a combination of two or more disabilities. Since said notification dated 04.01.2018 specifies “ Locomotor ” and “ Haemophilia ” as two separate and distinct disabilities, there is no scope for entertaining any doubt that the petitioner would fall within the ambit of Category: UR_PwD_IV.

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6. Mr. Tarun Patnaik, learned Counsel appearing for the opposite party No.2-OPSC submitted that while taking a decision on 29.09.2023 on considering the grievance petition of the petitioner, the Resolution dated 25.02.2021 was taken into consideration. He further submitted that bare reading of Category-IV(e) of the Resolution dated 25.02.2021 it is apparent that “Multiple Disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disability from time to time”. Since clauses (a) to (d) of the aforesaid Resolution dated 25.02.2021 specifies “(a) Blindness and Low Vision, (b) Deaf and hard of hearing, (c) Locomotor disability including Cerebral Palsy, leprosy cured, dwarf, acid attack victims and muscular dystrophy, (d) Autism, intellectual disability, specific learned disability and mental illness”, which does not include “ Haemophilia ” as one of the specified disabilities, there is no flaw in placing the name of the petitioner in the Select List under the Category “UR_PwD_III”.

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Analysis and discussions:

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7. Department of SSEPD has issued Resolution dated 25.02.2021 with respect to reservation and other concessions for the persons with disabilities in various posts or services under State Government or Public

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Sector undertakings, wherein it has been provided as follows:

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“The Government of India have enacted the Rights of Persons with Disabilities Act, 2016 (49 of 2016) by repealing the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996) which has come into force with effect from 19^th April, 2017 and the new Act has provided that, not less than four per cent of reservation shall be made for Persons with Disabilities. Keeping in view the change, the Government have been pleased to issue the following instructions in superseding all previous orders and instructions.

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1. Quantum of Reservation:

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(1) Not less than four per cent of the vacancies in case of direct recruitment to Group A, B, C and D posts shall be reserved for Persons with Disabilities (PwDs) 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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(c) Locomotor disability including Cerebral Palsy, leprosy cured, dwarf, acid attack victims and muscular dystrophy.

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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 clause (a) to (d) including deaf-blindness in the posts identified for each disability time to time.

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(2) Out of 4% (four per cent) reservations for Persons with Disabilities, one per cent reservation shall be earmarked for women with disabilities.

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12. Manner of filing of vacancy earmarked for persons with disabilities.—

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(1) Keeping in view the provisions of the “the Rights of Persons with Disabilities Act, 2016” four categories of persons with disabilities as given below shall be appointed covering following categories in order namely:

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Category	_Type _	s of disabiliti	es			Percent
Category I	(a)	Blindness	and Low vi	sion;		1%
Category II	(b)	Deaf and	hard of hear	_ing; _		1%
Category III	(c)	Locomotor Cerebral dwarfism, muscular	disabi Palsy, acid att _dystrophy; _	lity lepr ack	including osy cured, victims and	1%
Category IV	(d) (e)	Autism, specific mental illn Multiple persons including identified time to tim	intellectu learning, ess; disabilities under cla deaf-blindn for each e	al, dis fro use ess dis	disability, ability and m amongst (a) to (d) in the posts ability from	1%

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(2) If reserved posts in any point are not filled due to unavailability of Persons with Disabilities or the posts are not identified as suitable for given categories of disabilities, those posts shall be reserved for subsequent roster Groups and all

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reserved posts shall be filled up by persons with disabilities from next roster Groups accordingly.

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(3) Appointing Authorities shall maintain separate model roster register for each Group A,B,C & D posts being filed by direct recruitments.

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(4) Persons with Disabilities selected on their own merit without any relaxed standards along with other candidates, shall not occupy reserve roster point.”

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7.1. The PwD Act, 2016 in Section 2(s) defines “person with disability” to mean “a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others” and clause (zc) ibid. lays down “specified disability” means the disabilities as specified in the Schedule”.

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7.2. Schedule appended as referred above stands as follows:

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“The Schedule

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[See Clause (zc) of Section 2] Specified Disability

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1. Physical disability.—

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A. Locomotor disability (a person’s inability to execute distinctive activities associated with movement of self and objects resulting from affliction of musculoskeletal or nervous system or both), including —

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(a) “leprosy cured person” means a person who has been cured of leprosy but is suffering from—

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(i) loss of sensation in hands or feet as well as loss of sensation and paresis in the eye and eye-lid but with no manifest deformity;

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(ii) manifest deformity and paresis but having sufficient mobility in their hands and feet to enable them to engage in normal economic activity;

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(iii) extreme physical deformity as well as advanced age which prevents him/her from undertaking any gainful occupation, and the expression “leprosy cured” shall construed accordingly;

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(b) “cerebral palsy” means a Group of nonprogressive neurological condition affecting body movements and muscle coordination, caused by damage to one or more specific areas of the brain, usually occurring before, during or shortly after birth;

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(c) “dwarfism” means a medical or genetic condition resulting in an adult height of 4 feet 10 inches (147 centimeters) or less;

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(d) “muscular dystrophy” means a group of hereditary genetic muscle disease that weakens the muscle that move the human body and persons with multiple dystrophy have incorrect and missing information in their genes, which prevents them from making the proteins they need for healthy muscles. It is characterised by progressive

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skeletal muscle weakness, defects in muscle proteins, and the death of muscle cells and tissue;

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(e) “acid attack victims” means a person disfigured due to violent assaults by throwing of acid or similar corrosive substance.

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***

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4. Disability caused due to—

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(a) chronic neurological conditions, such as—

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(i) “multiple sclerosis” means an inflammatory, nervous system disease in which the myelin sheaths around the axons of nerve cells of the brain and spinal cord are damaged, leading to demyelination and affecting the ability of nerve cells in the brain and spinal cord to communicate with each other;

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(ii) “parkinson’s disease” means a progressive disease of the nervous system marked by tremor, muscular rigidity, and slow, imprecise movement, chiefly affecting middle-aged and elderly people associated with degeneration of the basal ganglia of the brain and a deficiency of the neurotransmitter dopamine.

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(b) Blood disorder—

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(i) “haemophilia” means an inheritable disease, usually affecting only male but transmitted by women to their

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male children, characterised by loss or impairment of the normal clotting ability of blood so that a minor would may result in fatal bleeding ;

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(ii) “thalassemia” means a group of inherited disorders characterised by reduced or absent amounts of haemoglobin.

¶183

(iii) “sickle cell disease” means a haemolytic disorder characterised by chronic anemia, painful events and various complications due to associated tissue and organ damage; “haemolytic” refers to the destruction of the cell membrane of red blood cells resulting in the release of haemoglobin.

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5. Multiple Disabilities (more than one of the above specified disabilities) including deaf blindness which means a condition in which a person may have combination of hearing and visual impairments causing severe communication, developmental, and educational problems.

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6. Any other category as may be notified by the Central Government.”

¶186

7.3. In view of clause (6) of the aforesaid Schedule, the Central Government in Ministry of Social Justice and Empowerment has issued Notification No.S.O.76(E) dated 04.01.2018, which reads as under:

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“Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)]

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Notification

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New Delhi, the 4^th January, 2018

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S.O.76(E).—

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Whereas the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice chairmanship of Secretary, Department of Empowerment of Persons with Disabilities to suggest guidelines for evaluation and procedure for certification of various specified disabilities;

¶194

And whereas the expert Committee met on the 10^th November, 2015 and declared that eight sub-committees in the following categories should be set up:

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(i) locomotor disability ;

¶196

(ii) visual impairment;

¶197

(iii) hearing impairment;

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(iv) chronic neurological conditions;

¶199

(v) persons affected with blood related disorders;

¶200

(vi) developmental disorders;

¶201

(vii) mental illness; and

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(viii) multiple disabilities;

¶203

And whereas the above eight sub-committee were set up by the Department of Empowerment of Persons with Disabilities vide orders dated the 21^st September, 2016, the 3^rd October, 2016 and the 23^rd January, 2017.

¶204

And whereas the said sub-committees, after detailed deliberations, submitted their reports and these reports were examined by the expert committee headed by Secretary, Department of Empowerment of Persons with Disabilities;

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And whereas the expert committee noted that the Ministry of Health and Family Welfare is the final authority to recommend guidelines on evaluation and procedure for certification of specified disabilities and accordingly the consolidated reports of all the eight sub-committees were referred to the Ministry of Health and Family Welfare for finalisation;

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And whereas a meeting was held on the 11^th April, 2017 under the chairmanship of Secretary, Ministry of Health and Family Welfare to consider the reports submitted by the eight sub-committees and subsequently Ministry of Health and Family Welfare conveyed their recommendations on 9^th June, 2017;

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Now, therefore, in exercise of powers conferred by Section 56 of the Rights of Persons with Disabilities Act, 2016 (49 of 2016), the Central Government hereby notifies the guidelines for the purpose of assessing the extent of the following specified disabilities in a person after having considered the recommendations of the Ministry of Health and Family Welfare as provided at Annexure-II, namely ,—

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I. locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy ;

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II. blindness and low-vision;

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III. deaf and hard of hearing and speech and language disability;

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IV. intellectual disability and specific learned disabilities;

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V. mental illness;

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¶217

VI. chronic neurological conditions;

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VII. haemophilia, thalassemia and sickle cell disease; and

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VIII. multiple disabilities.

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2. The said guidelines for the purpose of assessing disabilities at Annexure-II shall supersede the guidelines for evaluation of various disabilities and procedure for certificate vide Government of India, Ministry of Social Justice and Empowerment notification number 16-18/97-NI 1 dated the 1^st June 2001 and the guidelines for evaluation and assessment of mental illness and procedure of certification vide Government of India, Ministry of Social Justice and Empowerment notification number 16-18/97-NI dated the 18^th February 2022, except as respects things done or omitted to be done before such supersession.

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Note 1:—

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In terms of Section 57 of the Rights of the Persons with Disabilities Act, 2016 (49 of 2016), the State Governments or as the case may be, Union Territory Administrators shall designate persons, having requisite qualifications and experience, as certifying authorities, who shall be competent to issue the certificate of disability and also notify the jurisdiction within which and the terms and conditions subject to which, the certifying authority shall perform its certification functions.

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Note 2: —

¶224

The Director General of Health Services, Ministry of Health and Family Welfare, Government of India shall be the final authority to decide upon cases where any controversy or doubt arises in matters relating to interpretation of the definitions or

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classifications or evaluation procedure regarding the said guidelines.

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Annexure II

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Guidelines for the purpose of assessing

¶231

the extent of specified disability in a person included under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)

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I. Locomotor Disability:

¶233

Definition.—

¶234

“Locomotor disability” means a person’s inability to execute distinctive activities associated with movement of self and objects resulting from affliction of musculoskeletal or nervous system or both.

¶235

***

¶236

VII. Disability Caused due to Blood Disorder:

¶237

26.1. Definition.—

¶238

Blood disorder in relation to —

¶239

(i) ‘sickle cell disease’ means a hemolytic disorder characterised by chronic anemia, painful events, and various complications due to associated tissue and organ damage; ‘hemolytic’ refers to the destruction of the cell membrane of red blood cells resulting in the release of hemoglobin.

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(ii) ‘thalassemia’ means a group of inherited disorders characterised by reduced or absent amounts of haemoglobin.

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(iii) ‘haemophilia’ means an inheritable disease, usually affecting only male but transmitted by women to their male children, characterised by loss or impairment of the normal clotting ability of blood so that a minor wound may result in fatal bleeding;

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¶245

39. Haemophilia

¶246

39.1. What is Haemophilia:

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(a) Haemophilia is an X-linked congenital bleeding disorder caused by a deficiency of coagulation factor VIII (FVIII) (in hemophilia A) or factor IX (FIX) (in hemophilia B).

¶248

(b) The deficiency is the result of mutations of the respective clotting factor genes.

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(c) Hemophilia has an estimated frequency of approximately one in 10,000 births.

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(d) Estimations based on the WFH’s annual global surveys indicate that the number of people with hemophilia in the world is approximately 4,00,000

¶251

(e) Hemophilia A is more common than hemophilia B, representing 80–85% of the total hemophilia population.

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(f) Hemophilia generally affects males on the maternal side. However, both F8 and F9 genes are prone to new mutations, and as many as 1/3 of all cases are the result of

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spontaneous mutation where there is no prior family history

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(g) Accurate diagnosis of hemophilia is essential to inform appropriate management.

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(h) Hemophilia should be suspected in patients presenting with a history of:

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(i) Easy bruising in early childhood

¶259

(ii) ‘spontaneous’ bleeding (bleeding for no apparent/known reason), particularly into the joints, muscles, and soft tissues or brain

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(iii) Excessive bleeding following trauma or surgery.

¶261

(i) A family history of bleeding is obtained in about two-thirds of all patients.

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(j) A definitive diagnosis depends on factor assay to demonstrate deficiency of Factor VIII or Factor IX.

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(k) But disease can be suspected with family history, male child with echymosis or bleed without any obvious or trivial trauma and abnormal activated partial thromboplastin time (aPTT) and normal platelet count and Prothombin time

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VIII. Multiple Disabilities:

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40. Multiple Disabilities:

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40.1. Definition:

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Multiple Disabilities means a combination of two or more disabilities mentioned below:

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1. Blindness

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2. Low-vision

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3. Leprosy cured persons

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4. Hearing impairment (deaf and hard of hearing)

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5. Locomotor disability

¶275

6. Dwarfism

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7. Intellectual disability

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8. Mental illness

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9. Autism spectrum disorder

¶279

10. Cerebral palsy

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11. Muscular dystrophy

¶281

12. Chronic neurological conditions

¶282

13. Special learned disabilities

¶283

14. Multiple sclerosis

¶284

15. Speech and language disability

¶285

16. Thalassemia

¶286

17. Haemophilia

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18. Sickle cell disease

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19. Acid attack victims

¶289

20. Parkinson’s disease.”

¶290

7.4. Scrutiny of above statutory provisions juxtaposed with the Notification dated 04.01.2018, it is made abundantly clear that “Multiple Disabilities” means a combination of two or more disabilities. Amongst twenty identified disabilities, Locomotor Disability and Haemophilia have been recognized as two different and distinct disabilities.

¶291

7.5. However, placing heavy reliance on Department of SSEPD Resolution dated 25.02.2021 and reiterating the stand taken in the counter affidavit supporting the

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interpretation as made by the opposite party No.2-OPSC, it is submitted by the Additional Standing Counsel appearing for the opposite party No.1 that Category-IV(e) enumerated in Paragraph 12 of the Government of Odisha in Department of SSEPD Resolution No.1843/SSEPD, dated 25.02.2021 specifying “Multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disability from time to time” admits of no ambiguity that the entry “ Haemophilia ” being absent therein, the petitioner being certified to be a case of Locomotor Disability, which is one of the categories found mentioned in the said paragraph of the Resolution, the case of the petitioner fell within the ambit of CategoryIII(c), but not under Category-IV(e).

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7.6. Minute reading of Paragraph 12 of the Resolution would depict that the disability, i.e., Locomotor , falls under Category-III(c). Therefore, the petitioner can be said to be a person comprehended in the expression “from amongst persons under clauses (a) to (d)”. However, in order to ascertain the connotation of “Multiple Disabilities” reference has to be made to Paragraph 5 of the Schedule identifying disabilities in tune with the definition contained in Section 2(zc) of the PwD Act, 2016, whereby it is made clear that “Multiple Disabilities” is more than one of the specified disabilities. While at Paragraph 1 of the said Schedule “ Locomotor ” has been described, at

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Paragraph 4 “ Haemophilia ” has been cited as “disability caused due to” “blood disorder”. Further, the Notification No.SO 76 (E), dated 04.01.2018 of Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)] clarifies the position that “ Locomotor ” and “ Haemophilia ” are two distinct and different categories of disabilities. Thus, the petitioner has “ Locomotor Disability ” as mentioned in Paragraph 12(c), besides “ Haemophilia ”, which is another category of disability. Since the petitioner has more than one disabilities, namely, Haemophilia and amongst (a) to (d) he has Locomotor Disability, his case, therefore, falls within the scope of the expression “Multiple Disabilities”.

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7.7. Noteworthy here to have regard to the principle that the frame of any definition, more often than not, is capable of being made flexible but the precision and certainty in law requires that it should not be made loose but should be kept tight as far as possible. Resort to dictionary meaning is not required where definition clause exists. Where in a definition section of a statute a word is defined to mean a certain thing, wherever that word is used in that statute, it shall mean what is stated in the definition unless the context otherwise requires. But where the definition is an inclusive one, the word not only bears its ordinary, popular and natural sense whenever that would be applicable but it also bears its

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¶302

extended statutory meaning. At any rate, such expansive definition should be so construed as not cutting down the enacting provisions of an Act unless the phrase is absolutely clear in having opposite effect. Reference may be had to S.K. Gupta Vrs. K.P. Jain, (1979) 3 SCC 54 ; The Regional Director, ESI Corporation Vrs. P.B. Gupta, 76 (1993) CLT 893 (Ori) .

¶303

7.8. So understood, it is quite obvious that the Department of SSEPD Resolution dated 25.02.2021 being voiced in tune with the PwD Act, 2016, there is no escape from saying that the expressions and terms used in the said Resolution cannot be attributed confined meaning. The expressions and the words used in the Resolution of the State Government has to have the same meaning as attributed in the PwD Act, 2016 and notifications issued thereunder.

¶304

7.9. The doubt entertained by the opposite party No.2-OPSC is without any comprehension. The perception that Haemophilia has not been described as one of the categories in Paragraph 12 is not only erroneous but also misreading of the notification(s) along with PwD Act and Schedule appended thereto. The caption of said Resolution dated 25.02.2021 of the Government of Odisha in Department of SSEPD indicates that the same has been introduced keeping in view enactment of the Rights of Persons with Disabilities Act, 2016 repealing

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the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Therefore, the statutory provisions, Schedule appended thereto and notifications issued thereunder are very much relevant for the purpose of understanding the meaning and purport of the expression “Multiple Disablities”.

¶308

7.10. Glance at Disability Certificate issued by the Medical Authority, Khordha (Annexure-4) having specified two distinct disabilities, namely: Locomotor Disability and Haemophilia with multiple involvement joints with gross deformity, the opposite party No.2 could not have discarded such a vital document. Furthermore, the Special Medical Board comprising a team of specialised doctors, having examined and certified disability at 50% falling within scope of Category-IV (MD), such certificate of the expert body could not have been lightly brushed aside by the opposite party No.2-OPSC on misinterpretation of Department of SSEPD Resolution dated 25.02.2021.

¶309

7.11. This Court finds contradictory statement made by the opposite party No.1 in the counter affidavit, where it has been asserted that “the Secretary, OPSC, Cuttack vide Letter No.7445/PSC, dated 29.09.2023 justified the section of the petitioner under Cat_III_OH as per disability certificate submitted by the petitioner and as

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per the provisions in SSEPD Department Resolution No.1843, dated 25.02.2021”. Close scrutiny of Disability Certificate, dated 07.05.2020 under Annexure-4 and the opinion of the Special Medical Board on 08.09.2023 (Annexure-5) unequivocally certify that the petitioner has “Multiple Disabilities” with total disability assessed at 50%. Both the opinions one rendered by Medical Authority, Khordha dated 07.05.2020 and the other by the Special Medical Board comprising team of doctors of Srirama Chandra Bhanja Medical College and Hospital, Cuttack on 08.09.2023 do consistently match with each other.

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7.12. Section 45 of the Indian Evidence Act, 1872, permits the opinion of the experts to be relevant in deciding a case. The reason behind this is that the Court is not supposed to be an expert in all the fields, especially where the subject matters involves technical knowledge. It may not be possible to draw an inference from the facts which are highly technical. It needs to be emphasized that when the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. In these circumstances, the need for an opinion of expert(s), who has superior knowledge or experience in relation to the subject

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matter, arises. Noticeably, the opinion of an expert having special skill in particular field is relevant for the point of admissibility before the Court of law.

¶317

7.13. Thus, it is crystal clear that the opposite party No.2OPSC has proceeded erroneously by placing the petitioner under “UR_PWD_III” category instead of “PWDCategory-IV” as it conveniently ignored to have regard to not only definition contained in the PwD Act, 2016, but also the disabilities specified in the Schedule appended thereto in terms of Section 2(zc) and Notification No.SO 76 (E), dated 04.01.2018 of Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)]. Essentially, therefore, while construing the purport of the term “Multiple Disabilities” in the Resolution No.1843— SSEPD-DA-0003/2020/SSEPD, dated 25.02.2021 of the Government of Odisha, the meaning of the said term has to be attributed in the light of the PwD Act, 2016, the Schedule appended thereto in terms of Section 2(zc) and Notification No.SO 76 (E), dated 04.01.2018 of Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)].

¶318

Conclusion:

¶319

8. This Court is called upon to interpret the expression “Multiple Disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts

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identified for each disability from time to time” as employed in the Department of SSEPD Resolution No.1843—SSEPD-DA-0003/2020/SSEPD, dated 25.02.2021.

¶323

8.1. The term “Multiple Disabilities” refers to individuals who have more than one type of disability. This can include a combination of physical, sensory, intellectual, or mental health disabilities. The expression suggests that an individual may have more than one disability, which could include any combination of those specified in clauses (a) to (d). While one of the disabilities must be amongst those enlisted, it does not exclude the possibility of additional disabilities being considered.

¶324

8.2. The aforesaid expression implies that there is flexibility in recognizing additional disabilities beyond those explicitly mentioned in clauses (a) to (d). In other words, if an individual has a primary disability from this list, they may also have other disabilities recognized elsewhere in related notifications. To have more clarity it can be concluded that while one disability must come from clauses (a) to (d), identifying “Multiple Disabilities” allows for consideration of additional disabilities as defined by other relevant notifications or definitions within the same legislative framework. This interpretation aligns with inclusive practices often found

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in disability legislation aimed at accommodating various needs.

¶328

8.3. In summary, the above expression underscores the recognition and accommodation of individuals with Multiple Disabilities— including but not limited to deafblindness— within designated roles that are periodically reviewed and updated according to current needs and standards. It reflects an inclusive approach aimed at ensuring that people with diverse abilities receive appropriate support in various settings. This dynamic aspect emphasizes the importance of ongoing assessment and adaptation in supporting individuals with Multiple Disabilities.

¶329

8.4. Therefore, it is but quite luculent that the expression “Multiple Disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disability from time to time” employed in the Resolution dated 25.02.2021 cannot have meaningful approach than to read the same along with the definition(s) contained in the PwD Act, 2016, the disabilities specified in the Schedule appended thereto in terms of Section 2(zc) and Notification No.SO 76 (E), dated 04.01.2018 of Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)].

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¶332

8.5. So understood, since the petitioner has been assessed with 50% disabilities with Locomotor Disability and Hemophilia with multiple involvement joints with gross deformity as per the medical certificates— one certified by the Medical Authority competent to issue under the PwD Act and the other certificate issued by the Special Medical Board comprising a team of doctors of the Srirama Chandra Bhanja Medical College and Hospital— no doubt could have been entertained by the opposite parties. They, instead of brushing aside such certification by the expert bodies, ought to have taken pragmatic approach by rectifying the Select List by taking into consideration any one of the disabilities specified in clauses (a) to (d) of the Government of Odisha in Department of SSEPD Resolution dated 25.02.2021 as necessary factor for classification as having “Multiple Disabilities”, and this apart, they should have taken additional disabilities recognized in the PwD Act and notification(s) issued thereunder by including such disability while assessing the petitioner’s condition.

¶333

9. In view of the aforesaid discussion and for the reasons stated the above, this Court is of the considered opinion that the Select List published by the opposite party No.2-Odisha Public Service Commission in connection with the Odisha Civil Services Examination, 2021 (Advertisement No.25 of 2021-22) placing the petitioner

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under the “Category-III (OH)”/“UR_PWD_III” is contrary to the meaning ascribed to “Multiple Disabilities” in terms of the Rights of Persons with Disabilities Act, 2016 read with the disability specified in Schedule as per clause (zc) of Section 2 and the Resolution No.1843— SSEPD-DA-0003/2020/SSEPD, dated 25.02.2021 of the Government of Odisha and Annexure-II— “Guidelines for the purpose of assessing the extent of specified disability in a person included under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)” appended to Notification No.S.O.76(E), dated 04.01.2018 of Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)].

¶337

10. Under the above premises, the Letter dated 29.09.2023 as communicated by the Secretary, OPSC to the Additional Secretary to Government vide Annexure-11, whereby the categorisation of the petitioner in “CategoryIII (OH)” and “UR_PWD_III” has been retained by stating that SSEPD Department Resolution No.1843, dated 25.02.2021 does not include Haemophilia under Category-IV(e) ( i.e., Multiple Disabilities); rather, Category IV(e) stipulates that “Multiple Disabilities from amongst persons under clauses (a) to (d) including deafblindness in the posts identified for each disability from time to time”, cannot be sustained.

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10.1. This Court is, therefore, inclined to direct the opposite party No.2-Odisha Public Service Commission to reconsider the case of the petitioner in the light of the discussion made in the foregoing paragraphs in connection with the entries reflected at appropriate columns against Serial No.172 of the Select List published in connection with the Odisha Civil Services Examination, 2021 in pursuance of Advertisement No.25 of 2021-22 within a period of six weeks hence.

¶341

10.2. Needless to make an observation that consequential effect has also to be extended to the petitioner as a result of correction/amendment in the Select List, if any, made.

¶342

10.3. With the above observation and direction, the writ petition stands disposed of, but in the circumstances there shall be no order as to costs.

¶343

(MURAHARI SRI RAMAN) JUDGE

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High Court of Orissa, Cuttack The 22^nd August, 2024//Laxmikant/Suchitra

¶345

Signature Not Verified

¶346

Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 22-Aug-2024 13:56:59

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Pratik Srichandan v. State of Odisha

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Pratik Srichandan v. State of Odisha

Case brief

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