BALIA, J. - (1.) THIS appeal is directed against the order of learned Single Judge dated 29. 4. 98 in S. B. Civil Writ Petition No. 3993/89 by which the petition filed by the appellant was dismissed.
(2.) THE facts giving rise to this appeal are that in pursuance of advertisement issued by the Rajasthan Public Service Commission, Ajmer, for holding the Joint Competitive Examinations for the post of Lower Division Clerks, applications were invited. THE curriculum prescribed for the Joint Competitive Examination, 1986 reveals that different papers were prescribed for ordinary physically fit candidates and those who are physically handicapped. THE compulsory paper for both category of candidates was General Hindi carrying 100 marks. THE candidates other than handicapped persons were required to opt from the Hindi Typing Test or English Typing Test as the second paper and those who were physically handicapped candidates were to chose one of the two different set of papers namely General English or General Studies or General Knowledge i. e. to say the typing test was not necessary for physically handicapped candidates. An explanation was also attached to the curriculum giving meaning to expression ``physically handicapped', which is reproduced hereunder: *** In pursuance of this advertisement, the petitioner applied for taking the Joint Competitive Examination, 1986 as a physically handicapped candidate. Alongwith the application he submitted a medical certificate dated 27. 12. 86 as Annex. 2 issued by Chief Medical & Health Officer, Ratangarh, District Churu, certifying that- `the petitioner is suffering from Ankalosia of Proxiwel Intephelangeal Joint of left middle finger medial deviation of left hand, he cannot type properly with left middle finger'. The petitioner was allowed to take examinations as a handicapped candidate under Roll No. 38452 with General Studies and General Knowledge as the second paper and he was declared to have passed the examination as per the result published on 19. 4. 1989. However, the petitioner was informed by letter dated 29. 8. 89 (Annex. 4) that on scrutiny of the form, it is found that the petitioner is not a physically handicapped person and, therefore, his selection has been cancelled. Aggrieved with this cancellation of the result vide the said communication Annex. 4 the petition was filed by the appellant on 20th Oct. , 1989 on the grounds that the petitioner has fulfilled the requisite condition of being physically handicapped which disabled him to use his finger for typing as certified by competent authority and that the order has been made in breach of principles of natural justice inasmuch as no opportunity of hearing whatever was afforded before cancelling the result entitling the petitioner for selection to the post. No reason were assigned to reject the claim of the petitioner and the correctness of certificate. The reply submitted to the petitioner's challenge is that the certificate submitted by the petitioner did not in any way reveal that he was a handicapped person and could not be included in the category reserved for handicapped person so as to entitle him to take benefit under the reserved category for handicapped persons. It was also stated in the reply that certificate was not issued by appropriate authority and therefore the petitioner could not be included in the category of handicapped candidates and on the basis of marks obtained by him his name did not find place amongst general candidates. The learned Judge dismissed the petition on the ground that since RPSC has considered the Certificate Annx. 2 and petitioner cannot be said to be a handicapped person, that finding cannot be challenged in a petition under Art. 226.
(3.) IT has been contended by learned counsel for the appellant before us that on the face of it, petitioner-appellant has fulfilled all the requirements requisite for considering him as a candidate of handicapped category in view of the clear requirement stated in the curriculum extracted above. IT was stated in the advertisement in unequivocal terms that a physically handicapped person means and include who has such defect or deformity in his one or both hands which inhibits the candidate in typing and it also includes a blind. The curriculum also required the mode of verification of a candidate's being a physically handicapped, who offer to take Joint Competitive of such candidate must be accompanied with a certificate to that effect issued by such medical officer who is not below the rank of Chief Medical & Health Officer. IT was also pointed out by referring to Annex. 2, about the genuineness of which there is no dispute, that it has been issued by Chief Medical & Health Officer, Ratangarh and, therefore, it cannot be said that the certificate was not issued by an appropriate authority competent to issue such certificate. The certificate also discloses that the petitioner-appellant was suffering from such a defect or deformity in the joint of middle figure of his left hand which affects the typing capability of his middle finger of the left hand. Therefore, it is submitted by Mr. Bishnoi, learned counsel for the appellant, that the respondent Commission had cancelled the selection of the petitioner as a physically handicapped person on wholly untenable and non-existent ground without application of mind to the existing facts and the learned Single Judge erred in not considering the fact that denying the petitioner consideration for his appointment in the category of physically handicapped candidate on the basis of marks obtained as such in the Joint Competitive Examination, 1986 was wholly arbitrary and unjust affecting the rights of the petitioner under Art. 14 and 16 of the Constitution and the Court ought to have exercised its extra-ordinary jurisdiction to protect the petitioner from the breach of his fundamental rights. IT was further pointed out by the learned counsel for the petitioner that the appointment in pursuance of 1986 examination have not yet finalised inasmuch as the matter of selection of 1986 Joint Competitive Examination has been subject matter of litigation and as late as on 16. 9. 1999 the Rajasthan Public Service Commission has issued Press Note which has been published in Rajasthan Patrika dated 20th Sept. , 1999 inviting fresh applications from those candidates who have passed the Joint Competitive Examination, 1986 in pursuance of the directions issued to the State Govt. by the Supreme Court of India alongwith an affidavit in proforma annexed with the Press Note, and therefore, the petitioner's case is liable to be considered by the respondents as a case of physically handicapped person who had passed 1986 examination by ignoring Annex. 4 which has been issued wholly arbitrarily denying the petitioner equal opportunity in the matter of employment notwithstanding that he has passed the examination of 1986 as a physically handicapped person, the category to which he belongs. The copy of aforesaid press note as published in Rajasthan Patrika was placed on record. Mr. Joshi, learned counsel appearing for the Commission invited attention to the provisions of the Rajasthan Employment of Physically Handicapped Rules, 1976 particularly to Rule 2 (v) and Rule 7 of which reads as under:- 2 (v) ``physically Handicapped'' means and includes the following categories of Physically handicapped persons:- (A) Blind:-The blind are those who are suffering from either of the following conditions:- (i) total absence of sight; and (ii) visual acuity not exceeding 6/60 or 20/200 (snellan) in better eye with correcting lenses. (B) Deaf and/or Mute:- (i) The deaf are those in whom the sense of hearing is non-functional for ordinary purpose of life. (ii) The mute are those who can not speak. (C) Orthopaedically handicapped:-The orthopaedically handicapped are those who have a major physical defect for deformity which cause an interference with normal functioning of bones, muscles and joints. Rule 7 of the Rules of 1976 reads as under: 7. Ascertaining the decree of disability and functional capacity of the Physically handicapped and relaxation from medical examination on appointment to Government Service. (1) A certificate of the physically handicapped shall be obtained from the Medical Officer not below the rank of:- (i) A reader in the concerned speciality where there is a Medical College; and (ii) A Junior Specialist in the concerned speciality or Chief Medical & Health Officer at Places where there is no Medical College. (2) The certificate of disability required to be obtained under sub-rule (1) above shall be furnished by the Medical Officer in Form -II, Form -III, Form-IV and Form -V appended to these rules. (3) Such of the Physically Handicapped persons, who are appointed to any reserved or earmarked posts in any Government Department, shall not be subject to the usual Medical Examination provided in the respective Service rules on first entry into Government Service and the relevant Service Rules shall be deemed to have been amended to this extent. Pointing out to the Form IV meant for orthopaedically handicapped, it was pointed out by the learned counsel for the respondent that Certificate Annex. 2 does not conform to the requirement of Rule 7 about the certificate to be in the prescribed form. It was contended by the learned counsel that definition of `physically handicapped' who are orthopaedically handicapped envisages such orthopaedic person who has a major physical defect or deformity which causes interference in the normal functioning of bones, muscles and joints. The certificate in question does not certify the petitioner-appellant to be orthopaedically handicapped person as defined under rule 2 (V) inasmuch as it does not say that the petitioner suffers from any major physical defect or deformity which causes an interference with normal functioning of bones, muscles and joints. It was also urged faintly that Rule 5 of the Rules of 1976 provides for registration of physically handicapped persons with the designated agencies and as the petitioner did not hold a certificate from a designated agency of the area with the Director of Employment, Rajasthan to be included in the list of disabled persons, the petitioner cannot be considered to be an applicant in that category and therefore his claim has rightly been rejected. It was also urged by the learned counsel for the respondent that since the matter relates to the selections required to be made in pursuance of Joint Competitive Examinations, 1986, the petition itself was filed belatedly after three years in 1989 and now almost 14 years have elapsed, no relief can now be granted to the petitioner in respect of such concluded process of employment. ;