T.S. Doabia, J.@mdashAppellant came to this court with a plea that he should be interviewed for the post of a teacher under the handicapped
category. He had applied in pursurance of an advertisement notice No. 01 of 1999 issued on 09.03.1999. When he submitted an application, he
annexed a certificate indicating that he is handicapped. This certificate, was issued in the year 1992. Later he produced yet another certificate
dated 04.06.1999. This was issued by a Medical Board. This Medical Board had to determined the disability of the appellant at 40%. As this
certificate was not being taken into consideration he approached this court. A learned Judge who consider the issue in the writ petition was of the
opinion that as last date for filing application was 31.03.1999 therefore certificate issued on 04.06.1999 cannot be taken into consideration. It was
held that eligibility is supposed to exist on the last date for submission of application and as certificate dated 04.06.1999 was made available after
the above date, therefore this could not be taken note of. It is this view expressed by the Learned Single Judge which is subject matter of challenge
in this appeal preferred under clause 12 of the Letters Patent Appeal.
2. Appellant is present in person.
3. Respondent No. 1 i.e. Service Selection Recruitment Board is represented by Mr. M. Khan State of Jammu and Kashmir is represented by
Mr. D.S. Chouhan Advocate. When arguments were being heard parties were made aware of the fact that in the event of acceptance of appeal,
writ petition itself would also be taken for final disposal. As issue involved was purely legal, parties agreed that in the event of acceptance of appeal
matter need not be sent back to the Single Judge and writ petition itself be disposed of in this situation contention as put across in the writ petition
have also been taken note of.
4. Basic argument which is raised by the appellant / writ petitioner is that he was suffering from disability in the year 1992 also. This disability is
something which existed at the time of birth. As he grew this disability became more pronounced. Disability which he is suffering from is in the
nature of ""Dothersolunbar scolioces with wasting of left gluted thigh and CalfMuscles"". This is permanent disability. This has been now assessed at
50 %. This physical disability petitioner has not discouraged the appellant. He acquired B.Ed degree in 1995. He has also passed M.Ed. He
submits that notwithstanding the fact that he has all these educational attainments to his credit, so he should be considered against the category of
handicapped person also.
5. There can be no dispute with the proposition that a person must possess eligibility criteria on the last date meant for submitting applications. A
distinction has to be made between qualifications which are acquired by effort and qualification (disqualification in this case) which a person inherits
on account of birth in a family or at a particular place or in a circumstance such as these in which appellant is now placed i.e suffering from physical
disability. So far, as educational qualifications are concerned these are acquired by effort. Other qualification illustrated above are not acquired by
effort but arise on account of situation in which he is placed at the time of his birth.
6. What is meant by the word ""acquire"". This word has been explained in Black's Law Dictionary, Edition Sixth at page 24 as under:
Acquire. To gain by any means usually by one's own exertions, to get as one's own: to obtain by search endeavor, investment practice or
purchase; receive or gain in whatever manner come to have the act of getting or obtaining something which may be already in existence or may be
brought into existence through mean employed to acquire it.
7. The words ""acquired rights"" has also been defined.
These read as under:
Acquired Rights. Those which one does not naturally enjoy but which are owing to his or her own procurement as sovereignty or the right of
commanding or the right of property.
8. In Ayyal's Judicial Dictionary Eleventh Edition word, Acquire is defined as under:
The word acquire signifies the obtaining of title as a result of positive act done by the acquirer and will not apply to a case where on account of
death, the right devolves upon the heir of the deceased lessee. (Narayanan Amhrenthiri V. Sinaha 1953 ker Lt. 235 AIR 1953 TravCo 397 (DB).
The word 'acquire' having regard to the context must and can only mean acquisition for the first time under any of the instruments therein mentioned
or under a decree (Udhav Shankar Gangawane v. Tarabai AIR 1968 Bom. 308 (309): ILR (1967) Bom 1282: 69 Bom LR 795: 1968 Mah LJ
87
9. This aspect of the matter has been considered in case reported as AssadUllahKhan versus State of J and K and Others. (2001) 1 J and K Law
Reporter 137. In the above case question was visaviz status of the petitioner as belonging to the Scheduled Caste Category. It was observed that
this status of a person acquires by birth without any positive effort. The grant of certificate on later date will not alter that situation. What was said
is quoted:
...A person who claims to be a member of Scheduled Caste Category is a Scheduled Caste by birth and not on account of certificate having been
issued in his favour. There is a distinction between a qualification which is acquired on a later stage and the qualification which comes to vest on a
person by operation of law. The certificate is issued only in proof of his having been a member of a particular category..."".
A distinction has to be made dua qualification which is acquired i.e. by a positive effort and a qualification which stands vested by operation of law
or by circumstances beyond the human effort such as birth in a family or at a particular place...
10. Position in this case is similar. Therefore we are of the opinion that benefit which the petitioner wants to avail on account of qualification being
physically handicapped and this qualification i.e. physical disability he acquired at the time of birth. There was no effort made by him in this regard.
Only proof regarding this was required to be furnished. As a matter of fact appellant appeared in person. The disability from which he was
suffering is patent. Therefore we are of the opinion that merely because the appellant wishes to place reliance on a certificate issued on 04.06.1999
and merely because this has become available with the appellant after the last date fixed for submission of application would not mean that he
acquired qualification on 04.06.1999. This disability existed with him. Late submission of proof in this regard would not stand in his way.
11. Again the State of Jammu and Kashmir has enacted a statute. This is, the Jammu and Kashmir person with Disabilities (Equal opportunities,
Protection of Rights and Full participation) Act. 1998. Locomotor disability is one of the disability mentioned in Section 2 (d) (v). Term locomotor
disability has further been defined in sub clause (j) of Section 2. For facility of reference this subsection is reproduced below:
(i) Locomotor disability means disability of the bones joints or muscles leading to substantial restriction of the movement of the limbs or any form
of cerebral pelsy.
12. Percentage of disability which is required to be there is 40 %. This is provided in section 2 (p). This sub section is also reproduced below:
(p) person with disability means a person suffering from not less then forty percent of any disability as certified by a medical authority.
13. If the provisions of the aforementioned Act are taken into consideration then it becomes apparent that the petitioner is entitled to the benefit of
beneficial provision of this Act. Also, under this Act the government is supposed to identify the post which can be offered to handicapped person.
Section 21 and 22 of this act reads as under:
21 Identification of posts which can be reserved for persons with disabilitiesThe Government shall:
(a) Identify posts in the establishments which can be reserved for the persons with disabilities.
(b) At periodical intervals not exceeding three years review the list of posts identified and up date the list taking into consideration the
developments in technology.
Reservation of posts The Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or
class of persons with disabilities of which one per cent each shall be reserved for persons suffering from :
i. blindness or low vision,
ii. hearing impairment,
iii. locomotor disability or cerebral palsy in the posts identified for each disabilities.
Provided the 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.
14. Reading of Section 22 makes it apparent that three percent of the posts are supposed to be reserved for handicapped persons. Therefore
while considering the case of the petitioner respondents would not only take note of Jammu and Kashmir Reservation Rules i.e. SRO 126 but also
take note of the provisions of Jammu and Kashmir Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act
1988. We are accordingly of the view:
(i) that the appellant who appeared in person was patently suffering from a handicap. He was having a physical disability. The fact that the
appellant is handicapped was certified in the certificate dated 07.07.1992. That fact has again been certified on 04.06.1999.
(ii) that certificate dated 04.06.1999 would not amount that appellant had acquired eligibility on that date. Whatever eligibility (physical disability)
was there it existed at the time of birth. Therefore broad theory that eligibility must exist on last date of submission of application and that if any
eligibility is acquired later on would not be taken into consideration is a theory which will not apply to qualification or a disqualification (as in this
case) which a candidate acquires on account of circumstance in which he is placed on account of birth in a family at a place or when he is born
with some physical disablement.
15. As aforementioned issues is a purely legal issue and as parties prayed for the disposal of the appeal as also the writ petition both have been
disposed of. Appeal shall stand allowed. As consequence of this writ petition shall also stand allowed. A direction is accordingly given to
respondents to consider the claim of the petitioner. The certificate dated 04.06.1999 would not be ignored. Copy of this order be placed on the
file of the writ petition also.
16. Disposed of as such. 29052001
