VILASBEN BACHUBHAI VAGHANI vs STATE OF GUJARAT
- Court
- Gujarat High Court
C/SCA/251/2025 JUDGMENT DATED: 30/10/2026
(GJHC240862992024)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 251 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In R/SPECIAL CIVIL APPLICATION NO. 251 of 2025
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2026
In R/SPECIAL CIVIL APPLICATION NO. 251 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
√
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VILASBEN BACHUBHAI VAGHANI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR. HARESH J SASKIYA(17487) for the Petitioner(s) No. 1
MR ADITYA PATHAK, AGP for the Respondent(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 30/10/2026
JUDGMENT
1. Heard learned Advocate Mr. Vaibhav A. Vyas with learned
Advocate Mr. Haresh J. Saskiya on behalf of the petitioner, learned AGP
Mr. Aditya Pathak on behalf of the respondent No.1-State and learned
Advocate Mr. Premal R. Joshi on behalf of the respondent No.2.
2. Rule returnable forthwith. Learned AGP Mr. Pathak waives service
of rule on behalf of the respondent No.1-State and learned Advocate Mr.
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Joshi waives service of rule on behalf of the respondent No.2.
3. With consent of parties, the petition is taken up for final hearing.
4. The present petition is preferred with the following prayers.
“6.A. Be pleased to admit and allow this petition.
B. Be pleased to pass an appropriate order in view of the writ
jurisdiction in the nature of a writ or mandamus or certiorari or any
other nature of a writ, order or direction, directing respondent
authorities to carry out correction by including name of petitioner
in Final Merit List Dt. 02/09/2024. AND consequently give
directions to respondents herein for the appointment of petitioner
on the post of Mukhya Sevika (Class-III), in the interest of justice;
C. Pending the admission, hearing and final disposal of this
petition, YOUR LORDSHIPS may be pleased to pass an
appropriate order and/or direction against the Res. No.2 authority
and an appropriate order/direction to stay the any kind of
appointment proceedings for the post of “Mukhya Sevika (Class-
III) in PwBD Category.
D. Any other relief that may deem fit and proper in the facts and
circumstance of the case may please be granted.”
5. By way of the present petition, the petitioner challenges the non-
inclusion of the petitioner in the final merit list dated 02.09.2024 for the
post of Mukhya Sevika, Class-III, more particularly contending that the
petitioner though being a category entitled to be included in the category
reserved for persons with disability, on account of the inaction on the part
of the respondent – Gujarat Panchayat Service Selection Board, the
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category of disability of the petitioner not being included, therefore,
appropriate directions are sought for appointing the petitioner to the post
in question since she had secured as much marks as having been obtained
by a candidate, having been placed in the waiting list.
5.1 It also requires to be mentioned that the petitioner’s name had also
been included in the merit list/waiting list and her candidature had been
disqualified at the stage of documents verification, since the petitioner did
not have the disability as per the category which she had applied and the
disability suffered by the petitioner not being included as a category for
which reservation was granted.
6. Facts as much as relevant leading to filing of this petition are stated
hereinbelow.
6.1 The petitioner herein a lady, suffering from locomotor disability,
more particularly from Kyphoscdliosis, (BH- Stiff back and hips)
[(cannot sit or step) category], resulting in permanent disability of 45%,
which qualifies as a disability under the definition provided in the Rights
of Persons with Disabilities Act, 2016.
6.2 At this stage, it requires to be mentioned that Kyphoscdliosis is a
spinal deformity, where the spine curves abnormally, both outward like a
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hunch – kyphosis and sideways, - kyphoscdliosis. The disability of the
petitioner has been certified to be a case of locomotor disability in a
Disability Certificate issued by the Medical Authority, Rajkot, as
prescribed the Department of Empowerment of Persons with Disabilities,
Ministry of Social Justice and Empowerment, Government of India.
6.3 It is the case of the petitioner that the State Government through
the Panchayat, Rural Housing and Rural Development Department, State
of Gujarat, vide Government Resolution dated 06.09.2021 had resolved to
keep 4% posts for differently able persons as per the provisions of the
Rights of Persons with Disabilities Act, 2016 (hereinafter to be referred to
as “ the RPD Act”). The said Resolution inter alia prescribes the relevant
categories in which reservation was to be applied and insofar as the post
of Mukhya Sevika is concerned, the Resolution prescribes in Category –
C, 1% reservation for OA, OL, OAL and AAV category. It requires
mention that OA being One Arm, OL being One Leg, OAL being One
Arm and One Leg and AAV being Acid Attack Victim.
6.4 It also appears that the Social Justice and Empowerment
Department of the State of Gujarat, had issued a Notification dated
17.09.2022 , whereby the said Department had clarified that the locomotor
disability would also include persons in the category of Spinal Deformity
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(SD) and Spinal Injury (SI). It is further observed in the said notification
that while deciding the type of disability to be included for selection to a
post in question, the authorities should take into consideration the above
categories i.e. SD and SI, in the category of OA, OL, BA, BL,OAL,
BLOA and BLA as per the disability suffered by the candidate.
6.5. It appears that the Social Justice and Empowerment Department,
had issued a later Notification dated 30.12.2022, clarifying the earlier
Notification and directing that while deciding the type of disability in
Group (C) i.e. locomotor disability, categories SD and SI without any
associated neurological/limb dysfunction should be mandatorily included.
Furthermore, as stated in the earlier notification, it was reiterated that the
candidate could be categorized as per the associated disability in OA, OL
etc. category.
6.6 It appears that though the notifications had been issued by the
Social Justice and Empowerment Department on 17.09.2022 and
30.12.2022, the Panchayat Department had issued a Resolution in
compliance of the above notifications on 10.03.2025, whereby the
Panchayat Department had resolved that in the 4% reservation under the
RPD Act, 2016, in Category - C i.e. locomotor disability, the category
Spinal Deformity (SD) and Spinal Injury (SI) without any associated
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neurological/limb dysfunction shall be included and would be adjusted
against the category as per the disability suffered. It would thus appear
that while the Social Justice and Empowerment Department had
recognized the Spinal Deformity and Injury as a part of locomotor
disability and had mandated that Spinal Deformity and Injury shall be
considered a part of the locomotor disability category i.e. Group (C)
category and candidates should be adjusted according to the disability
suffered by them and whereas the same is also being followed by the
Panchayat Department since March, 2025.
6.7 The respondent No.2 - the Gujarat Panchayat Service Selection
Board, had published Advertisement No. 14/2021-22 for recruitment to
the post of Mukhya Sevika (Class-III). While the advertisement was for
225 posts, a total of 49 posts were reserved for the persons with
disabilities category. For Category – C, 5 posts were reserved, in
Category OA, OL, OAL, AAV. The petitioner had applied in the PwBD
category and since the sub-classification of the disability did not include a
disability of Spinal Deformity, the petitioner had applied in the Category-
D, under the Sub-head MD i.e. Multiple Disabilities. The petitioner had
appeared in the examination and had secured 46.880 marks and whereas
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the respondent No.2 had issued an additional provisional merit list (3
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th
waiting list), in which the petitioner was ranked as the 5 candidate in the
PwBD category. The petitioner having been called for document
verification and whereas though the petitioner possessed certificate of
having 45% disability, yet, the petitioner’s certificate was not treated as
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valid and whereas the respondents had subsequently published 3
additional final select list, wherein the petitioner’s name had not been
included and candidates having lesser mark i.e. candidates at Serial No. 3
and 4 of the select list having secured lesser mark than the present
petitioner, had been selected. The petitioner, having not been selected,
being aggrieved and dissatisfied by the decision of the respondents, had
submitted two legal notices and whereas since the same had been replied
too vide reply dated 19.11.2024, it appears that vide communication dated
19.11.2024, the respondent No.2 has informed the petitioner that since the
disability suffered by the petitioner i.e. BH category is not one of the
categories, in which, one of the accepted categories of disabilities,
therefore, the candidature of the petitioner had been rejected. The case of
the petitioner being that though the petitioner suffers from a Spinal
Deformity, which was required to be included in the category of
locomotor disability, yet, since the advertisement in question was issued
prior to the notifications by the Social Justice and Empowerment
Department, though the actual process of recruitment had taken place
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much thereafter and on account of the Panchayat Department including
SD and SI categories in the category of locomotor disability vide
Government Resolution of March, 2025 i.e. after the recruitment process,
therefore, though the petitioner had secured as much marks as entitling
her to claim selection in PH category, more particularly in Category - C
of the four categories under the RPD Act, 2016, yet, she has not been
considered for appointment. The petitioner being aggrieved and
dissatisfied by the impugned decision has approached this Court by way
of the present writ petition.
7. Heard learned Advocate Mr. Vaibhav Vyas on behalf of the
petitioner, who would submit that the category of disability suffered by
the petitioner had been included by the department authorized to declare
the same, i.e. the Social Justice and Empowerment Department of the
State of Gujarat and whereas, while the advertisement had been issued by
the Gujarat Panchayat Service Selection Board prior to the date of the
Notification i.e. 17.09.2022, yet, the petitioner since she had qualified in
the PwBD category was entitled to be appointed since the recruitment
process had concluded much later than the date of the notification
referred to hereinabove. It is submitted by learned Advocate that while
the first select list had been published on 29.09.2022, i.e. post the date of
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notification, an additional provisional merit list had been published
almost two years thereafter, i.e. on 14.08.2024 wherein the name of the
petitioner was included at Serial No.5. Learned Advocate would submit
that though the date of the advertisement precedes the date of the
notification, yet, since the reservation for persons with disability had been
envisaged by the Rights of Persons with Disabilities Act, 2016, which
was a beneficial legislation, therefore, irrespective of the date of the
advertisement, the respondent was required to consider the case of the
petitioner.
7.1 Learned Advocate Mr. Vyas would further submit that as such,
even the Panchayat Department had issued a Resolution on 10.03.2025
inter alia including the category of Spinal Deformity (SD) and Spinal
Injury (SI) without any associated neurological/limb dysfunction as
category entitled for reservation. Learned Advocate would submit that the
Panchayat Department having complied with the notification of the
Social Justice and Empowerment Department dated 17.09.2022 and
clarificatory notification of the same department dated 30.12.2022,
whereby the above categories were directed to be mandatorily included,
therefore, it would clearly appear that the non-inclusion from the outset,
i.e. in compliance of the RPD Act, 2016, was an error on the part of the
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respondent authorities and whereas the petitioner ought not to be
prejudiced on account of the same.
7.2 Learned Advocate Mr. Vyas would further submit that while the
respondents may contend that the vacancies as advertised, may have been
filled in, yet, considering the fact that the petitioner had qualified and but
for the non-inclusion of the category of disability suffered by the
petitioner, should have been entitled and would have been appointed and
also having regard to the beneficial nature of the principal enactment, this
Court may direct the respondents to appoint the petitioner suitably.
Learned Advocate Mr. Vyas would in support of his submissions rely
upon decision of a learned Co-ordinate Bench of this Court dated
07.06.2021 in case of Shivsankar Karunasankar Pandya Vs. State of
Gujarat and Others, passed in Special Civil Application No. 8580 of
2017 .
8. As against the submissions made by learned Advocate Mr. Vyas,
the present petition is vehemently objected to by learned Advocate Mr.
Premal Joshi on behalf of the respondent No. 2 – Gujarat Panchayat
Service Selection Board. Learned Advocate Mr. Joshi would submit that
the Panchayat, Rural Housing and Rural Development Department, State
of Gujarat, vide Resolution dated 06.09.2021 had resolved to keep 4%
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posts for differently able persons as per the provisions of the RPD Act,
2016 and whereas the category of disability suffered by the petitioner was
not included in the said Resolution. It is submitted by learned Advocate
that since at the time of the advertisement, the respondent No.2 was
bound by the provisions of GR dated 06.09.2021, therefore, the
respondent could not be faulted in not including that category of
disability suffered by the petitioner as a relevant category for which
reservation was provided. Learned Advocate would submit that the
petitioner, having applied under the Multiple Disabilities (MD) category,
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had secured 46.880 marks and was placed at Serial No. 5 in the 3
additional provisional merit list dated 14.08.2024. It is submitted by
learned Advocate that the petitioner had been called for document
verification and whereas it is at that stage, the respondent No.2 realized
that the disability suffered by the petitioner was BH (Kyphoscoliosis),
was not a category for which either there was a reservation and that the
petitioner did not have the relevant certificate for the category under
which she had applied. It is submitted that considering such a position,
the respondents had rightly rejected the candidature of the present
petitioner.
8.1 Learned Advocate Mr. Joshi would further submit that as far as
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reference to an advertisement No. 9/2025-26 for the post of Mukhya
Sevika, which had been announced recently is concerned, while it is true
that the disability of the petitioner i.e. Spinal Deformity (SD) and Spinal
Injury (SI) have been considered as a relevant category of disability for
which reservation had been provided, yet, since there was no reservation
for such a disability in the advertisement concerned i.e. advertisement
No. 14/2021-22, therefore, the case of the petitioner ought not to be
considered.
8.2 Learned Advocate Mr. Joshi would further submit that even
otherwise, since the petitioner had applied in a category of disability,
which she was not suffering from, therefore, the petitioner was even
otherwise not entitled to any relief from this Court and whereas in support
of his submissions, learned Advocate would refer to decision of this Court
in case of Rutvik Rajeshbhai Jasoliya Vs. Gujarat Panchayat Service
Selection Board, reported in 2023 SCC Online Guj 2921.
9. Heard learned Advocates for the respective parties and perused the
documents on record.
10. The question that arises for consideration of this Court being that
whether the petitioner has made out a case for seeking appointment in the
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category reserved for persons with disability category or whether the
stand taken by the respondents of rejecting the candidature of the
petitioner is justified.
11. At the outset, it would be profitable to highlight certain aspects,
which would be relevant for deciding the issue in question. The Central
Government promulgated the Rights of Persons with Disabilities Act,
2016, which inter alia envisages specific measures to be taken by
appropriate authorities, the Government in this case, to provide for
establishment of not less than 4% of reservation in the total number of
vacancies for persons with benchmark disabilities, in the categories
provided in the Act itself. It would appear that in compliance with the
provisions of the Act, the State of Gujarat, had inter alia issued
notifications and resolutions providing for reservation in the State
services for persons with disabilities, to the extent of 4%, and whereas,
for which category, reservation would be provided was also specified. It
would appear that the same had been in consonance with instructions by
the Ministry of Social Justice and Empowerment of the Central
Government.
The Panchayat Department, had in compliance of instructions
issued by the Social Justice and Empowerment Department of the
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State of Gujarat, issued Resolution dated 06.09.2021, whereby the
Department had declared the disabilities for which reservation
would be provided, post-wise in Class-III posts.
Insofar as the post of Mukhya Sevika, Class-III, there was no
reservation provided for the category of Spinal Deformity (SD)
and Spinal Injury (SI) without any associated neurological/limb
dysfunction in category (C) under the locomotor disability and
whereas categories of OA (One Arm), OL (One Leg), OAL (One
Arm and One Leg) and AAV (Acid Attack Victim) categorized as
the disabilities entitled for reservation under Category (C).
The respondent No.2 – Gujarat Panchayat Service Selection
Board had issued advertisement No.14/1921-22 for the
recruitment for 225 posts of Mukhya Sevika, Class-III, by inviting
online application from 30.03.2022 to 15.04.2022. Admittedly, the
category of disability suffered by the petitioner was not included
as a category entitled for reservation.
The Central Government through the Ministry of Social Justice
and Empowerment issues notification dated 24.08.2022, whereby
a separate sub-category, i.e. Spinal Deformity (SD) and Spinal
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Injury (SI) without any associated neurological/limb dysfunction,
was to be incorporated under the locomotor disability in addition
to the existing OA, OL, BA, BL, OAL, BLOA and BLA
categories.
The Social Justice and Empowerment Department of the State of
Gujarat issues notification dated 17.09.2022, whereby the
disability of Spinal Deformity (SD) and Spinal Injury (SI) were
directed to be included as a sub-category in the locomotor
disability category in addition to the existing sub-category.
The Social Justice and Empowerment Department of the State of
Gujarat vide notification dated 30.12.2022 had inter alia directed
all the Departments under the State of Gujarat to mandatorily
include the Spinal Deformity (SD) and Spinal Injury (SI)
disability as a sub-category in the locomotor disability category in
addition to the existing sub-categories, without fail.
12. It also requires to be mentioned here that since the category of
disability suffered by the petitioner was not included as a category
entitled for reservation, the petitioner had applied for selection to the post
of Mukhya Sevika,Class-III, as per advertisement referred to hereinabove
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in the MD category i.e. Multiple Disabilities, which would include
disabilities included in Group (A) to (D) – 40 %– 70%. The petitioner
was included in the additional provisional merit list declared on
14.08.2024 at Serial No.5 with 46.880 marks. The candidature of the
petitioner had been rejected inspite of the fact that she possessed the
certificate declaring her to be suffering from locomotor disability –
kyphoscoliosis and her disability was assessed at 45%. The said
certificate issued by P.D.U. Medical College, Rajkot and disability
certificate as notified by the Department of Empowerment of Persons
with Disabilities, the Ministry of Social Justice and Empowerment,
Government of India, had been issued in favour of the petitioner.
13. At this stage, before traversing any further, it would be relevant to
refer to the Rights of Persons with Disabilities Act, 2016. It would appear
that the said Act had been enacted to give effect to the United Nations
Convention on the Rights of Persons with Disabilities, more particularly
adopted on 13.12.2006, whereby it was inter alia envisaged that certain
principles for empowerment of persons with disabilities were laid down.
Since India was a signatory to the Convention and since India had ratified
the Convention on 01.10.2007, it was considered necessary to implement
the Convention and thus, the Act came into being. The Act inter alia
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envisages that the appropriate Government shall ensure that persons with
disabilities, enjoy right to equality, life with dignity and respect for her
integrity equally with others. It was also envisaged that the appropriate
Government would take steps to utilize the capacity of persons with
disabilities by providing appropriate environment. It was also envisaged
that no person with disability wold be discriminated on the ground of
disability legitimately. (Section 3).
13.1 It is also envisaged that there shall not be any discrimination by the
Government against a person with disability in any matter relating to
employment. (Section 20).
13.2 It is also envisaged that every establishment shall notify equal
opportunity policy detailing measures proposed to be taken by it in
pursuance of this Chapter in the manner as may be prescribed by the
Central Government. (Section 21).
13.3 Most importantly, the Act envisages that the Government shall
reserve not less than 4% of total number of vacancies in the cadre
strength in each group of posts meant to be filled with persons with
benchmark disabilities and whereas it is further envisaged that reservation
would be at the rate of 1% for benchmark disabilities under clause (a) –
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blindness and law vision, clause (b) - deaf and hard of hearing, clause (c)
- locomotor disability including cerebral palsy, leprosy cured, dwarfism,
acid attack victims and muscular dystrophy, clause (d) - autism,
intellectual disability, specific learning disability and mental illness, and
clause (e) - multiple disabilities from amongst persons under clauses (a)
to (d) including deaf-blindness in the posts identified for each disabilities.
(Section 34).
14. Sub-section 2 of Section 34 being relevant for the present purpose
is reproduced hereinbelow for benefit.
“Sub-section (2) of Section 34 : 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:
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.”
14.1 The above sub-section envisages carrying forward of unfilled
vacancies reserved for persons with disability to the next recruitment
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year. It is also envisaged that in the next recruitment year, if suitable
person with benchmark disability is not available, then an interchange
among the five categories is contemplated and whereas only in case
where even in the said year, i.e. the succeeding year, no person with
disability is available, then the vacancy would be filled by appointment of
a person, other than a person with disability.
15. From a bare reading of the summary of some of the important
provisions of the Rights of Persons with Disabilities Act, 2016 in the
present context, it would become empathetically clear that Rights of
Persons with Disabilities Act, 2016, is a forward looking, beneficial Act,
enacted to ensure upholding of dignity and ensuring equal opportunity to
persons with disabilities. The Act, also envisages in furtherance of its
object, reserving vacancies in posts to be filled in by the Central
Government, in the benchmark disability category, as contemplated in the
Act itself. The Act, also envisages maximum opportunity to persons with
benchmark disability inasmuch as, it is envisaged that unfilled vacancies
would be carried forward and an interchange is also permissible to ensure
that if vacancies are not filled in with appropriate candidates in the
particular benchmark disability, then the posts could be filled in by
qualified persons with disabilities in other categories and only after such
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an exercise of interchange is carried out and if vacancies still remain, then
the same could be filled in by persons, other than the persons with
disabilities.
16. Return back to the factual score, while it would appear that the
category of disability suffered by the petitioner was not envisaged as a
sub-category for which there would be a reservation at the time of
advertisement, yet, the later notifications of the Central Government and
the State Government have directed mandatory inclusion of the category
of disability suffered by the petitioner to be included as a specific sub-
category in the locomotor disability category, i.e. category - C. It would
also appear to this Court that it was but for a fortuitous circumstance that
the category of disability suffered by the petitioner was not included as a
category entitled for reservation before the advertisement and even at the
time of laying down of policy for inclusion of specific sub-categories
under the head of locomotor disability category, yet, in the considered
opinion of this Court, such a fortuitous circumstance, ought not to
prejudice the present petitioner.
16.1 The reason for observing as above, being the nature of the Rights
of Persons with Disabilities Act, 2016, which as noticed hereinabove, is a
forward looking beneficial Act, whose object is to ensure upholding of
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dignity and ensuring there is no discrimination towards persons with
disability and there is adequate opportunity available to persons with
disability in matter of employment. This being the object of the Act, a
mere fortuitous circumstance of non-inclusion of the disability suffered
by the petitioner in the list of sub-categories entitled for reservation under
the category of locomotor disability at the date of the advertisement,
ought to have been overlooked by the authorities concerned.
16.2 Again, while it is true that the authorities, i.e. respondent No.2 as
such, could not be faulted with not including the present petitioner since
the category of disability suffered by the petitioner was not included in
the category entitled for reservation at the time of advertisement, yet, to
this Court it would appear that there would not be any bar on this Court
exercising powers under Article 226 of the Constitution of India to issue
appropriate directions to the respondent No.2 as regards appointing the
present petitioner.
17. At this stage, it would be profitable to refer to observations of the
Hon’ble Apex Court in case of M.S. Sanjay Vs. Indian Bank, reported
in 2025 INSC 177, paragraphs No. 9 and 10 thereof being relevant for
the present purpose are reproduced hereinbelow for benefit.
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“9. It is well settled that interference by the Writ Court for mere
infraction of any statutory provision or norms, if such infraction
has not resulted in injustice is not a matter of course. In the case of
Shiv Shanker Dal Mills v. State of Haryana reported in (1980) 2
SCC 437, the dealers in that case had paid market fees at the
increased rate of 3%, which was raised from the original 2 per cent
under Haryana Act 22 of 1977. The excess of 1 per cent over the
original rate was declared ultra vires by this Court in the case of
Kewal Krishna Puri v. State of Punjab reported in (1980) 1 SCC
416. The excess of 1 per cent over the original rate having been
declared ultra vires, became refundable to the respective dealers
from whom they were recovered by the Market Committee
concerned. The demand for refund of the excess amounts illegally
recovered from them not having been complied with, the dealers
filed Writ Petitions under Article 32 and Article 226 of the
Constitution for a direction to that effect to the Market Committee
concerned. The Market Committees contended that although the
refund of the excess collections might be legally due to the dealers,
many of them had in turn recovered this excess percentage from
the next purchasers. While disposing of the petition and laying
down guidelines, this Court held as under :
“Article 226 grants an extraordinary remedy, which is
essentially discretionary, although founded on legal injury. It
is perfectly open for the court, exercising this flexible power,
to pass such order as public interest dictates and equity
projects. Courts of equity may, and frequently do, go much
further both to give and withhold relief in furtherance of the
public interest than they are accustomed to go where only
private interests are involved. Accordingly, the granting or
withholding of relief may properly be dependent upon
considerations as of public interest.”
10. It has been rightly observed that legal formulations cannot be
enforced divorced from the realities of the fact situation of the
case. While administering law it is to be tempered with equity and
if the equitable situation demands after setting right the legal
formulations not to take it to the logical end, the High Court would
be failing in its duty if it does not notice equitable consideration
and mould the final order in exercise of its extraordinary
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jurisdiction. Any other approach would render the High Court a
normal Court of Appeal, which it is not. It is a settled principle of
law that the remedy under Article 226 of the Constitution of India
is discretionary in nature and in a given case, even if some action
or order challenged in the petition is found to be illegal and invalid,
the High Court while exercising its extraordinary jurisdiction
thereunder can refuse to upset it with a view to doing substantial
justice between the parties.”
17.1 The Hon’ble Apex Court, had inter alia in the above paragraphs,
referred to an earlier decision of the Hon’ble Apex Court in case of S hiv
Shanker Dal Mills v. State of Haryana , wherein the Hon’ble Apex
Court had inter alia laid down the extent of exercise of powers under
Article 226, which is stated to be a discretionary provision founded on
legal injury. The Hon’ble Apex Court in the former decision lays down
that Courts exercising jurisdiction under Article 226, are empowered to
pass such orders as public interest dictates and equity projects. Courts are
also empowered to go further and to grant or refuse to grant relief in
furtherance of public interest.
17.2 Having referred to the decision of Shanker Dal Mills, the Hon’ble
Apex Court in case of M.S. Sanjay (supra) further lays down that while
exercising jurisdiction under Article 226, Courts are required to take into
consideration the realities of the fact situation and while exercising
jurisdiction under Article 226, more particularly the exercise of law,
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should be such that it takes into consideration the ground realities and
should not be divorced from the same. The Hon’ble Apex Court has
further laid down that High Courts would be failing in their duty, if they
do not notice equitable considerations and mould the final order in
exercise of its extraordinary jurisdiction to do substantial justice.
17.3 Considered from the above perspective, it would appear to this
Court that a benefit accruing in favour of the petitioner by way of a
beneficial legislation, cannot be refused to be conferred on her merely
because the appropriate Governments notified such right, post the day
when the substantive cause had arisen. In perspective, the right of the
petitioner for appointment in the category reserved for persons with
disability, cannot be refused only on account of the fact that the category
of disability suffered by the petitioner came to be recognized as a
category entitled for reservation at a date later than the date of the
advertisement.
18. In the considered opinion of this Court, the situation may have
been different, if the category of disability suffered by the petitioner had
never been included in the categories entitled for reservation. The same is
not the case here. As elaborately noticed, in addition to the State
Government through the Social Justice and Empowerment Department,
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requiring all Departments of the State to include the category of Spinal
Deformity (SD) and Spinal Injury (SI) as a sub-category under the
locomotor disability category, even the Panchayat Department, vide GR
dated 10.03.2025 had resolved to include the above sub-category under
the category of locomotor disability, as category entitled for reservation.
It would also appear that in a later advertisement for the very same post,
the respondent No.2 has included the sub-category of Spinal Deformity
(SD) and Spinal Injury (SI) under the locomotor disability category under
the category- C as being entitled for reservation under the persons with
disability category. This being the position, merely because the right of
the petitioner for being entitled to claim reservation under the persons
with disability category came to be recognized later than the date of the
reservation would not be a reason to deny the petitioner’s right of
appointment under the persons with disability category.
19. Another aspect, which also would favour the petitioner being that
while the advertisement was issued on 28.03.2022, i.e. preceding the
recognition of the category of disability suffered by the petitioner as a
category eligible for reservation, yet, the selection process had continued
for a long time inasmuch as, while the first select list had been published
on 29.09.2022, yet, the additional provisional merit list had been
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published on 14.08.2024 and the recommendation-cum- district allotment
list had been published on 12.09.2024. Thus, before the selection process
culminating in appointment had concluded, the the disability suffered by
the petitioner had been recognized as entitled for reservation.
20. Insofar as the decision in case of Rutvik Rajeshbhai Jasoliya
(supra) relied upon by learned Advocate Mr. Joshi, it would appear that
the facts being completely different, the same would not help the cause of
the respondent, more particularly since it is noticed that the petitioner
therein was having benchmark disability in the BL (Both Legs) category
whereas the advertisement for the post in question did not specify the said
category as being entitled for disability whereas the petitioner had
therefore filled up the form under the OL-OA category, i.e. One Leg One
Arm disablement. It was under such circumstances that this Court had
deemed it appropriate not to entertain the writ application since the
category of the disability suffered by the petitioner therein was not
included in the categories entitled for reservation and whereas the
petitioner had applied under a different category and had claimed
appointment.
20.1 On the other hand, as noticed hereinabove in the instant case, the
category of disability of the petitioner had not been recognized as a
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category entitled for reservation, and thus, the petitioner had applied
under the Multiple Disabilities (MD) category. It would also appear that
the disability suffered by the petitioner, in a later advertisement, more
particularly after the said category had been recognized as a category
entitled for reservation, as one of the sub-categories entitled for
reservation, in later advertisement by the very recruiting agency. Thus,
the facts being totally different, the decision relied upon by the learned
Advocate Mr. Joshi would not be relevant for the present purpose.
21. Insofar the stand taken by the respondents as regards there being a
lack of vacancy, as far as the said advertisement is concerned, this Court
has noticed that the petitioner had secured 46.880 marks in the (D) and
(E) category under the specific disability of Multiple Disabilities (MD). It
also requires to the noted that the petitioner is also entitled for reservation
under the SEBC category. It is also noticed that the petitioner, though
being named in the additional provisional merit list, had not been given
appointment since the disability suffered by the petitioner was not the
disability under the category in which she had applied.
21.1 As against the same, it is also noticed that in the category in which
the petitioner would have been entitled, i.e. Category-C, persons having
lesser marks than the petitioner namely, Yogeshvari Pratapbhai Dodiya
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and Nitaben Pravinbhai Nimavat at Serial No. 9 and Serial No. 10 of
provisional list dated 14.08.2024 have been recommended for
appointment, as could noticed in the final list dated 12.09.2024. Thus, it
is clear that but for the fortuitous circumstance referred to hereinabove,
the petitioner would have been entitled for appointment. It is also clear
that the respondent No.2 – GPSSB, had also issued an advertisement on
18.04.2026 for filling up of posts of Mukhya Sevika i.e. the very same
post, where 11 posts have been reserved for persons with disability. It
would appear that though it has been submitted that the selection with
regard to the later advertisement has concluded and appropriate persons
have been selected, judicial notice would also be taken of the fact that the
post of Mukhya Sevika, Class-III, under the Panchayat Department of the
State Government is not an exclusive post, rather it is a regular Class – III
post, where vacancies would arise regularly.
21.2 Reiteration could also be made at this stage to the observations of
the Hon’ble Apex Court as regards exercise of powers under Article 226
of the Constitution of India, and whereas, in the considered opinion of
this Court, the present would be a fit case where appropriate directions
are required to be issued for appointing the petitioner, since such
directions would be in furtherance of the object of the Rights of Persons
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with Disabilities Act, 2016, i.e. to ensure that persons with disabilities can
have a life with dignity without any discrimination and have adequate
opportunity in public employment. The petitioner, though being eligible
and entitled, yet, since the category of disability suffered by her, came to
be recognized at a later date, could not be denied appointment since such
denial, would not be in public interest since the same would be
overlooking the noble and forward looking object of the Rights of
Persons with Disabilities Act, 2016.
21.3 Furthermore, in the considered opinion of this Court, while
directing appointment of the petitioner, in case there are no vacancies,
considering the rare and exceptional situation, which this Court is dealing
with, this Court is of the opinion that appropriate directions to appoint the
petitioner on any vacancy arising in future would also be required to be
issued to do substantial justice and whereas equities could be protected by
restricting the monetary emoluments to be paid to the petitioner with
prospective effect.
22. Having regard to the above observations, discussion and
conclusion arrived at, in the considered opinion of this Court, the
following directions would meet with the ends of justice.
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(i) The decision of the respondents of not considering the case of the
petitioner for appointment under the PwBD Category, is declared as
illegal.
(ii) The respondent No.2 is directed to recommend the case of the
petitioner for appointment under the PwBD Category, more particularly
Category-C and whereas the petitioner shall be accommodated on any
existing vacancy, or if there are no vacancies existing as on date, the
petitioner shall be accommodated in the vacancies arising hereinafter.
(iii) It is clarified that appointment of the petitioner would be under the
PwBD Category from the date, when persons in the additional provisional
merit list dated 14.08.2024 had been appointed.
(iv) It is clarified that while the petitioner would be entitled for the
benefit of seniority, yet, all other financial benefits shall be treated as
notional and whereas while the petitioner would not be entitled for any
arrears, she would be entitled to such pay scale as if she had been
appointed from the date, the persons whose names figuring in additional
provisional merit list dated 14.08.2024 in the PwBD Category had been
appointed.
23. With the above observations and directions, the present petition
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stands disposed of as allowed. Rule is made absolute to the above extent.
Consequently, connected Civil Applications are also disposed of.
(NIKHIL S. KARIEL,J)
BDSONGARA
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