VINEET KOTHARI, J. - (1.) THE writ petitioner Ms. Dhudi Chaudhary; a physically handicapped person being disabled by both the hands applied for the post of Lecturer (History) advertised by the respondent - RPSC and claimed such appointment against the reserved vacancies for physically handicapped persons. THE said advertisement was issued in the year 2001 and the petitioner was called for the interview vide Annex. 3 dtd. 4.1.2003, but was later on not offered the appointment on the ground that the physically disability in the case of the petitioner did not fall within the ambit and scope of disability prescribed for said position, namely, OL/BL (orthopaedically handicap in one log or both legs). This category of OL/BL did not include the petitioner's disability which was described in the medical certificate as "Ankylosis right elbow in 90% flexion partial Ankylosis right wrist and finger, amputation thumb and index finger left panel, Ankylosis left wrist in 90% extension." THE total disability was measured by the Medical Board at 60% in the said certificate. THE petitioner claimed the relief in the writ petition that the petitioner deserves to be given the benefit of reservation on the said post by virtue of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the PWD Act, 1995). THE petitioner also challenged the validity of Rules framed by the State Government under the said Central enactment known as Rajasthan Employment of Disabled Persons Rules, 2000' (hereinafter referred to as the Rules of 2000) as amended vide notification dtd. 10.10.2002 issued by the State Government.
(2.) THE second writ petition filed by Mr. Mahesh Kumar Monga is by the person who was also physically handicap in the category of OL/BL and was selected for the said appointment, but could not be provided this appointment on account of exparte interim order passed in the aforesaid first writ petition No. 1567/2003 filed by the petitioner Ms. Dhudi Choudhary in which on 10.4.2003, a coordinate Bench of this Court directed the respondents to keep one post of Lecturer (History), which was the only post available, reserved for the petitioner Ms. Dhudi Chaudhary. By the consent of the parties, final arguments were heard in both the writ petitions and both the writ petitions are proposed to be disposed of by this common order. Mr. C.S. Kotwani, learned counsel for the petitioner Ms. Dhudi Chaudhary submitted that Section 33 of the PWD Act which provides for reservation for all the three categories of physically disabled persons also provides for locomotor disability which is applicable in the present case and does not make any distinction for physical disability in the form of OL/BL and disability of hands like in the case of the petitioner viz. Ankylosis and therefore, while issuing the advertisement Annex. 1, the respondent- State could not have provided disability of OL and BL only to be given such benefit of quota reservation for the post of School Lecturer (History) and therefore, to this extent, the condition in advertisement as well as Rules of 2000 aforesaid deserve to be quashed. He further submitted that by the later notification dtd. 10.10.2002, the Schedule I and Schedule II to the said Rules of 2000 have been altogether deleted by the State Government and therefore, the said category of disability like OL and BL specified in the advertisement and in the said Schedule I and Schedule II of the Rules of 2000 cannot put a ban on the appointment of the present petitioner to the said post and the amendment in the Rules of 2000 by the notification dtd. 10.10.2002 deserves to be given retrospective effect. Relying upon the decision of learned Single Judge in the case of Arvind Kumar Joshi vs. State of Rajasthan reported in 2007(11) WLC 402 = RLW 2006(4) Raj. 3149, the learned counsel for the petitioner submitted that bifurcation of disability could not be made by the respondent - State for the purpose of reservation in terms of Section 33 of the PWD Act. Per contra, Mr. G.R. Calla, learned counsel appearing for the State and Mr. J.P. Joshi, appearing for the RPSC vehemently opposed the submissions made by the learned counsel for the petitioner and urged that Section 33 of the Act of 1995 clearly permitted the State Government to identify the post for each of the disabilities prescribed in Section 33 of the said Act and that identification of post was done by the respondent- RPSC in the advertisement Annex. 1 and the disability of category of OL & BL was clearly prescribed for the said post of School Lecturer (History) and the petitioner having entered in the said competition with clear open eyes and fully well knowing that her disability does not fall in the category of OL & BL, is not entitled to any relief or direction from this Court seeking mandamus against the respondents for her appointment on the said position. On the other hand, Mr. B.S. Sandhu appearing for Mr. Mahesh Kumar Monga who has also filed second writ petition No. 5869/2003 submitted that his client Mr. Mahesh Kumar Monga suffered the disability falling in the category of OL/BL and was declared successful in the said competition and was entitled to be appointed as such in view of reservation for disability which he suffered and consequently in preference over the present petitioner Dhudi Chaudhary, the petitioner in connected writ petition, namely, Mahesh Kumar Monga is entitled to be given said appointment. He also relied upon the decision of the Hon'ble Supreme Court in the case of Bhupenderpal Singh vs. State of Punjab reported in (2000) 5 SCC 262 and Dhananjay Malik vs. State of Uttaranchal reported in (2008) 4 SCC 171 in support of his contention that the petitioner Dhudi Chaudhary having unsuccessfully participated in the process of selection without any demur, was estopped from challenging the selection criteria itself, now before this Court.
(3.) I have heard the learned counsels at length and bestowed my thoughtful consideration to the rival pleadings, statutes and the case laws cited at the Bar. In the considered opinion of this Court, the present writ petition of petitioner Dhudi Chaudhary deserves to fail and is liable to be dismissed, whereas the counter writ petition of Mahesh Kumar Monga deserves to be allowed. Section 33 of the PWD Act, 1995 relevant for the present purpose is reproduced hereunder for ready reference: "33. Reservation of posts: Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent, for persons or class of persons with disability of which one per cent, each shall be served for persons suffering from:- (i) blindness or low vision; (ii) hearing impairment (iii) locomotor disability or cerebral palsy in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." ;