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2026 DAILYLAW 16691 (HP)

Seema Devi v. State of Himachal Pradesh

2026-02-24

Ajay Mohan Goel

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JUDGMENT : Ajay Mohan Goel, J. 1.By way of this writ petition, the petitioner has prayed for the following reliefs:- (i) “That the impugned order dated 1st October, 2023 (Annexure P-5) passed by the learned 2nd Appellate Authority in Appeal No.94/2024 titled as “Seema Devi versus Rajneesh Thakur and others” may kindly be quashed and set aside. (ii) That consequently the impugned termination order dated 15th March, 2024 (Annexure P-3) passed by the learned Sub-Divisional Magistrate (Civil) Sadar District Bilaspur, H.P. may also be set aside. (iii) That resultantly the petitioner may kindly be ordered to be reinstated as Part Time Multi Task Worker in Government Primary School Luharda, District Bilaspur, H.P. alongwith consequential benefits, in the interest of justice.” 2. Brief facts necessary for the adjudication of this petition are that process was initiated by the Education Department to fill up the post of Part Time Multi Task Worker in Government Primary School, Luharda, Tehsil Sadar, District Bilaspur, H.P., for the year 2021-22. The petitioner alongwith the private respondent and some other candidates participated in the said process. In terms of Annexure P-1, communication dated 04.07.2022, the petitioner was declared successful candidate and was offered appointment against the post of Part Time Multi Task Worker. Her appointment was assailed by the private respondent by way of an appeal before the First Appellate Authority under Rule 19 of the Part Time Multi Task Workers Policy, 2020. In terms of Annexure P-2, the appeal filed by the private respondent was allowed. The services of the petitioner were terminated. Appeal filed by the present petitioner against the order of termination was dismissed by the Authorities. Feeling aggrieved, the petitioner has approached this Court assailing the said orders, including the order of termination passed by the Authority dated 15.03.2024. 3. Learned counsel for the petitioner argued that the petitioner and the private respondent are both physically disabled. He submitted that, whereas, the petitioner is suffering from deformity with regard to her eyes, the private respondent is mentally retarded. He argued that the private respondent is not mentally fit to be offered appointment and initially the appointment was rightly offered to the petitioner. He submitted that, whereas, the petitioner is suffering from deformity with regard to her eyes, the private respondent is mentally retarded. He argued that the private respondent is not mentally fit to be offered appointment and initially the appointment was rightly offered to the petitioner. The act of the Appellate Authority of allowing the appeal filed by the petitioner was totally unsustainable in the eyes of law, as the Authority erred in not appreciating that the private respondent was suffering from mental illness, which rendered him incapacitated to perform the duties of the post in issue. Learned counsel further submitted that the subsequent act of the authorities, of having the private respondent examined by the medical authorities, offering him appointment and the rejection of the appeals preferred by the present petitioner against the order of her termination are also thus not sustainable in the eyes of law for the reason that the offer of appointment to the petitioner at the first instance was justifiable in the eyes of law, whereas, termination of the service of the petitioner is bad in law and this extremely important aspect of the matter has been ignored by the Appellate Authorities while passing the impugned orders. No other point was urged. 4. On the other hand learned Additional Advocate General referred to the orders passed by the Appellate Authority dated 28.07.2023, 08.08.2024 and 10.09.2024 and submitted that said orders are self-speaking and do not call for any interference. Learned Additional Advocate General submitted that when initially appeal was preferred by the private respondent against the appointment of the present petitioner, it is not as if the Appellate Authority ordered his appointment forthwith. He further submitted that what the Appellate Authority did was that while accepting the appeal, it directed the Block Elementary Education Officer-cum-Member Secretary Sadar, District Bilaspur to seek clarifications from Education Department whether the Department had identified certain benchmark disabilities like mental illness/mental retardation/autism as not suitable for the post of Part Time Multi Task Worker. Learned Additional Advocate General further submitted that in compliance to this order, needful was done by the Department, which led to the passing of the termination order of the present petitioner dated 15.03.2024. Learned Additional Advocate General further submitted that in compliance to this order, needful was done by the Department, which led to the passing of the termination order of the present petitioner dated 15.03.2024. He submitted that the termination order is demonstrative of the fact that proper medical opinion was obtained with regard to the mental fitness of the private respondent and the certificate which was issued by the Chief Medical Officer concerned was to the effect that there was nothing to suggest that the said respondent was not fit for the job of a Part Time Multi Task Worker. Learned Additional Advocate General also submitted that this aspect of the matter cannot be ignored in the present case that the private respondent herein was found to be more meritorious in the selection process as compared to the present petitioner. Accordingly, he argued that as there is no infirmity in the impugned order, the present petition be dismissed. 5. Learned counsel appearing for the private respondent has adopted the arguments of learned Additional Advocate General. In addition, he argued that the contention of the petitioner that the private respondent is medically unfit to perform the duties of Part Time Multi Task Worker is without any basis. He submitted that medical experts have opined that the private respondent is not unfit to perform the duties of the office and this view of the experts neither can be substituted by the Court nor the petitioner. Learned counsel has also referred to the provisions of the Mental Healthcare Act, 2017 in general and Section 3(5) in particular and argued that it is not for the petitioner to undertake the exercise of issuing certificates to the effect as to whether a person is of unsound mind or not. 6. I have heard learned counsel for the parties and have also carefully gone through the pleadings and documents appended therewith. 7. It is not in dispute that in the selection process which was undertaken by the Committee to fill up the post of Part Time Multi Task Worker, the private respondent was found to be more meritorious than the present petitioner, on the basis of the criteria for selection contained in the Multi Task Worker Policy, 2020. 7. It is not in dispute that in the selection process which was undertaken by the Committee to fill up the post of Part Time Multi Task Worker, the private respondent was found to be more meritorious than the present petitioner, on the basis of the criteria for selection contained in the Multi Task Worker Policy, 2020. After the authority issued appointment letter to the present petitioner dated 05.07.2022, her appointment was assailed by the private respondent, primarily on the ground that despite him being more meritorious than the petitioner, his candidature was rejected only on the ground that he was mentally retarded. This as per him was done ignoring the fact that the disability certificate which was produced by him demonstrated that he was not suffering from such mental illness, which caused an impediment to offer him the appointment. 8. In terms of the order passed by the Appellate Authority dated 28.07.2023 (Annexure P-2), the authority allowed the appeal by returning the following reasoning:- “Based on the pleading of the Ld. Counsel of both parties and perusal of record of BEEO Sadar following points arise for determination: i. Whether the candidate is a case of disability more than 40%, if yes then category of disability? ii. Whether mental illness comes in the category of benchmark disability? iii. Whether Govt. limits mental illness disability candidates from recruitment? iv. Whether department of education released any clarification/notification regarding unsuitability of any benchmark disability for this multi task workers post? v. Whether soundness of mind of appellant was examined by an expert in selection committee? vi. Whether the impugned order is liable to be set aside on the basis of material on record? vii. Relief. For the reason to be recorded hereinafter while discussing the points for determination, my findings on the same are: Point 1: Yes more than 40% disability in the category of mental illness. Point 2: Yes, as per letter No. PER(AP)- C-F(4)-1/2020 dated 22.06.2020 of Department of Personnel, Shimla HP, it comes under the category of benchmark disability. Point 3: No, mental illness disability candidates are not barred. Point 4: No. Point 5: No, there was no medical expert in selection committee. Point 6: Yes. Point 7: The appeal is partially allowed for reasons recorded below:- Reasons of finding:- 1. From the perusal of letter No. PER(AP)-C-F(4)-1/2020 dated 22.06.2020 of Department of Personnel, Shimla HP: "2. Point 3: No, mental illness disability candidates are not barred. Point 4: No. Point 5: No, there was no medical expert in selection committee. Point 6: Yes. Point 7: The appeal is partially allowed for reasons recorded below:- Reasons of finding:- 1. From the perusal of letter No. PER(AP)-C-F(4)-1/2020 dated 22.06.2020 of Department of Personnel, Shimla HP: "2. Quantum of reservation: 2.1 In case of direct recruitment, four percent of the total number of vacancies to be filled up by direct recruitment, in cadre strength in each group/class of posts ie Group class-1, II, III & posts/services shall be reserved for persons with benchmark disabilities. 2.2 Against the posts identified for each disabilities, of which, one percent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one percent, under clauses (d) and (e), unless otherwise excluded under the provisions of para 3 herein under: a) Blindness and low vision, b) Deaf and hard hearing, c) Locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy: d) Autism, intellectual disability, specific learning disability and mental illness, e) Multiple disabilities from amongst persons under clauses (a) to (d) including deaf blindness. 3. Exemption from Reservation: Any establishment, in consultation with the State Commissioner (Disabilities), may, having regard to the type of work carried out in any Govt. establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Govt. establishment from providing reservation to person with benchmark disabilities. However, the State Govt. has exempted the post of drivers (Light & Heavy vehicles) in all departments/Himachal Road Transport Corporation, Police Constables and Firemen in Civil Defence and Home Guards for the purpose of reservation to the persons with disabilities vide letter No. Karmik (NI-11) B(12)- 11/76 dated 20.02.1982. 4. IDENTIFICATION OF JOBS/POSTS AND ANNUAL REPORT: 4.1 Every Govt. establishment shall (i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with para-2 above (ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts: and (iii) undertake periodic review of the identified posts at an interval not exceeding three years. 4.2 Every appointing authority/establishment shall sent annual report regarding representation of persons with disabilities, showing position as on first of January every year to the Social Justice and Empowerment department who will compile the data being the nodal department. 4.3 The structure of the expert committee for the identification of posts which are to be reserved for the persons with benchmark disabilities has been notified by the Directorate of Empowerment of SCs, OBCs, Minorities and the specially abled, HP vide letter No. 4-1/2016- (43)-SOM-WEL-(Identification)-19895-20015 dated 31.10.2018." 2. Based on the record on file and the appellant's and respondent averments, it is clear that mental illness comes under the category of benchmark disability and until & unless specifically excluded in policy, it shall be considered. There is no bar for selection of person with mental illness. 3. Moreover in this case, appellant appeared in this court and while communication he was found well oriented to time, place and person. From the perusal of records it has also come to the notice that appellant has cleared middle examination in the year 2015. In totality, impressions comes in the mind of undersigned that appellant was not properly examined by expert member during selection process. His disability certificate was misinterpreted as of that person with mental illness is equivalent to person with unsound mind. This interpretation is clearly not in consonance with mandate of Government's policy as mentioned in letter No. PER(AP)-C. F(4)-1/2020 dated 22.06.2020 of Department of Personnel. Such posts must be filled keeping in mind the interest of physically disabled persons and person with benchmark disabilities too. 4. Therefore, in view of above findings, I hereby partially accept the appeal and direct respondent no.2 to seek clarification from Education department that if the department has identified benchmark disabilities like mental illness/mental retardation/ autism not suitable for this post (Part Time Multi Task Worker) if not barred by Education Department, then this mental illness category cannot be barred from applying for these posts and appellant should be given opportunity as per guidelines. 5. After receiving clarification from Education department, BEEO must reconstitute the committee under the chairmanship of Sub Divisional Magistrate and Chairman must ensure that soundness of mind of appellant is examined by medical expert. 5. After receiving clarification from Education department, BEEO must reconstitute the committee under the chairmanship of Sub Divisional Magistrate and Chairman must ensure that soundness of mind of appellant is examined by medical expert. Chairman must pass speaking order with proper reasoning regarding selection/rejection of appellant in this matter and the entire process must be completed within a month of receipt of the copy of this order by the respondent no. 1 & respondent No. 2. The case file of this court be consigned to the General Record Room after due completion.” 9. The reasoning given by the said authority which has been quoted by me hereinabove is prudent reasoning and during the course of the arguments addressed by the learned counsel for the petitioner, it could not be demonstrated that the reasons spelled out in this order were perverse. This is more so for the reason that the Appellate Authority prudently did not undertake the exercise of issuing any certificate in favour of the appellant on its own as to whether he was mentally fit or not to discharge the duties of the post, but, in terms of the findings returned in the order, it partly allowed the appeal and directed respondent No.2 therein to seek clarification from the Education Department whether the actual disability from which the said appellant was suffering stood declared as a disability barring a candidate from applying for the post in issue or not. In this backdrop, when one peruses the termination order of the petitioner dated 15.03.2024, perusal thereof demonstrates that after the appeal of the private respondent was decided, a clarification was sought from the Director of Elementary Education by the authority concerned and in terms of the clarification, Clause-3 of the eligibility criteria of the relevant policy stated that only such candidates will be eligible to apply for the post in issue who are of sound mind. 10. In fact, a Committee was reconstituted under the Chairmanship of SDM to examine the soundness of mind of the private respondent and he was examined by Department of Psychiatry, AIIMS Bilaspur & District Disability Medical Board, Bilaspur and the report of the Department of Psychiatry AIIMS, Bilaspur, as is also mentioned in the termination order of the petitioner, reads as under:- “Patient reported in Psychiatry OPD, AIIMS Bilaspur on 16.10.2023 for psychiatry evaluation and patient was referred to PGI Chandigarh for IQ assessment. He was again assessed on dated 08.01.2024 with IQ report. On the basis of history, mental status examination & IQ assessment, we are of the opinion that Mr. Rajneesh Thakur, S/o Sh. Ram Singh is suffering from “Mild intellectual disability disorder” which commensurate with 50% disability. This condition originated during developmental period and he has significantly below average intellectual functioning & social functioning. He also has physical deformities and inadequate language development for which he requires consultation with orthopedic surgeon and ENT specialist respectively His condition may interfere in independent living and he may require appropriate support. The unsoundness of mind is not used in medical parlance.” 11. Not only this, a clarification was also received by the said Committee from CMO, District Bilaspur as to whether the private respondent was fit to perform the duties of the post in issue and the relevant portion of the medical certificate which finds mentioned in the termination order of the petitioner reads as under:- “According to clarification by the Chief Medical Officer, District Bilaspur the detailed assessment report/certificate in r/o Sh. Rajneesh Thakur, S/o Sh. Ram Singh issued by Medical specialist, Psychiatry Department, AIIMS Bilaspur, which is self explanatory. There is nothing to suggest that Mr. Rajneesh Thaiur, S/o Sh. Ram Singh not fit for the job of part time multi task worker in view of bove stated report. However, the health department issues the medical fitness certificate for first entry in Govt. service upon the issuance of appointment order by the employer.” 12. These are the reasons, which led to the issuance of the termination order of the petitioner and it could not be demonstrated during the course of hearing of this petition that the findings of the experts which have been quoted in the termination order, were not actually returned by the medical experts. In this backdrop, if one peruses the orders passed by the Appellate Authorities dated 08.08.2024 and 10.09.2024, preferred by the present petitioner against her termination, one cannot find any fault therein for the reason that these authorities have also relied upon the reports of the medical experts, who found the private respondent herein fit to perform the duties of a Part Time Multi Task Worker. 13. 13. Therefore, in light of the observations made hereinabove, as the denial of appointment to the private respondent at the first instance was not justifiable in law and as this wrong was subsequently corrected by the authorities and that too on the strength of medical reports, this Court sees no reason to interfere with the orders, which have been assailed by way of this writ petition. The petition is, accordingly, dismissed. No order as to costs. 14. Taking into consideration the fact that the petitioner also belongs to the disabled category, it is impressed upon the Department that if there is any post lying vacant in District Bilaspur, where the petitioner can be adjusted, the same may done as an exceptional case, taking into consideration the peculiarities of the case in hand, wherein, the petitioner at the first instance was offered appointment and she also served for a period of 1 year and 9 months. Pending miscellaneous applications, if any, also stand disposed of.