Central Administrative Tribunal - Delhi
Geeta vs Govt. Of Nctd on 19 April, 2023
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O.A. No. 1788/2017
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 1788/2017
Order reserved on: 23.03.2023
Order pronounced on: 19.04.2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Geeta
Visually Handicapped
Aspirant Assistant Teacher (Nursery) in MCD
D/o Sh. Ram Gopal
Aged about 29 years
R/o Vill : Bharathapl,
Sector -26, Dwarka,
New Delhi -77
...Applicant
[By Advocate(s): Mr. Anil Singal]
Versus
1. Govt. of N.C. T of Delhi
Through its Chief Secretary
Delhi Secretariat, IP Estate
New Delhi
2. Delhi Subordinate Services Selection Board
Through its Chairman
FC-18, Institutional Area,
Karkardooma, Delhi - 92
3. South MCD
Through its Commissionr
Dr. SPM Civic Centre,
JLN Marg, New Delhi
...Respondents
[By Advocate(s): Ms. Sumedha Sharma]
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O.A. No. 1788/2017
ORDER
By Hon'ble Mr. Manish Garg, Member (J) In the present OA, the applicant seeks the following relief(s):-
"A) To quash and set aside the Rejection Notice No.540 dt.17.4.2017 and/or cut of date of 30.7.2010 for the purpose of percentage of disability B) To direct the respondents to take into consideration the "Disability Certificate dt.10.1.2013" treating the applicant eligible for the post of Assistant Teacher (Nursery) Post Code No.68/10.
C) To direct the respondents to process the case of the applicant for appointment to the post of Assistant Teacher (Nursery) Post Code No.68/10 treating her eligible in all respect and appoint her to the post of Assistant Teacher (Nursery) Post Code No.68/10 with all consequential benefits. D) To award costs in favor of the applicant and pass any order or orders, which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
2. The instant Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, aggrieved by the Rejection Notice No.540 vide which her candidature has been rejected on the ground of "Less Than 40% Disability in VH". It is submitted by the applicant that the said action of the respondents is arbitrary and illegal.
3. Brief Facts:-
3.1 The applicant belongs to VH Category and is aspirant for the post of Assistant Teacher (Nursery) in MCD. She was suffering 40% disability in VH Category. However, she was erroneously 3 O.A. No. 1788/2017 issued 35% Disability Certificate dated 15.07.2005 by the Deen Dayal Upadhyay Hospital. The respondent No.2 issued Recruitment Advertisement for the post of Assistant Teacher (Nursery) in MCD Post Code No.68/10. The applicant being fully eligible applied for the post of Assistant Teacher (Nursery) in MCD under VH Category. She got checked up from , i.e., AIIMS where she was found to have been suffering 40% disability in VH Category and issued 40% Disability Certificate dated 10.01.2013.
The impugned rejection notice No.540 dated 17.04.2017 states that the applicant is declared as "Not Eligible" and her candidature for the post of Assistant Teacher (Nursery), post code 68/10 has been rejected due to less than 40% Disability in VH. The rejection of the candidature is primarily on the basis of disability certificate dated 15.7.2005 issued by Deen Dayal Upadhyay Hospital, Govt of N.C.T. of Delhi, wherein it has been stated that the applicant is suffering from Right Micro cornea with Cataract. It is not in dispute that prior to her appearing in examination on 31.8.2014, the applicant submitted disability Certificate dated 10.1.2013, the same is reproduced as under:-
"To Whomsoever it may concern This is to certify that Geeta age 24 male/female, S/W/D of Shri Ram Gopal was examined in the RPC OPD (No 1828/13). He/She was diagnosed to have Right Optic Nerve Atrophy. His/Her best corrected visual acuity in R/E is PL absent and L/E 6/36. Therefore, he/she is visually handicapped by 40% (forty percent)."4
O.A. No. 1788/2017
3.2 Hence, the learned Counsel would contend that the said disability Certificate dated 10.1.2013 has been ignored by the respondents which shows that the applicant was having 40% disability, whereas the respondents have rejected case of the applicant based on earlier disability certificate dated 15.7.2005 wherein the disability is shown to be 35%. It has been further submitted that disability in so far as pertains to visual acuity which may actual deteriorate over the period of time. He further laid stress on the medical parameters for assessment of visual disability and highlighted that in so far as visual disability is concerned, there is no standard such as 35% of disability. The visual disability would either 20%, 40 %, 75% , 100% or 30% but not 35 %. In all probabilities, the first certificate has been issued by the doctor ignoring the said guidelines.
"GUIDELINES FOR ASSESSMENT OF VISUAL DISABILITY
1. Definition: - Blindness refers to a condition where a persons suffers from any of the condition, namely,
i) Total absence of sight; or
ii) Visual acuity not exceeding 6/60 or 20/200 (Snellen) in the better eye with best correcting lenses; or
iii) Limitation of field of vision subtending an angle of 20 degree or worse;
2. Low Vision: -Persons with low vision means a person a with impairment of vision of less than 6/18 to 6/60 with best correction in the better eye or impairment of field in any one of the following categories:-
a) Reduction of fields less than 50 degrees
b) Hemianopia with macular involvement
c) Altitudinal defect involving lower fields.5 O.A. No. 1788/2017
3. Process of Certification A disability certificate shall be issued by a Medical Board duly constituted by the Central/State Government having, at least three members. Out of which, at least one members shall be a specialist in ophthalmology.
It was also decided that whenever required the Chairman of the Board may co-opt other experts including that of the members constituted for the purpose by the Central and the State Government. On representation by the applicant, the Medical Board may review its decision having regard to all the facts and circumstances of the case and pass such order in the matter as it thinks fit. If visual disability is associated with one or more other disability (other than visual disability), the guidelines for multiple disability in disability assessment has to be followed.
4. Variables in assessing Vision Disability (PPI) In Vision Disability following variables need to be taken into consideration while assessing function loss resulting permanent physical impairment (disability).
1. Vision
2. Acuity of vision
3. Field of vision (in degrees)
4. Hemianopia
5. Altitudinal Defect (in lower field)
5. Categories of Visual Disability All with correction Category Better eye Worse eye % age impairment Category 0 6/9-6/18 6/24 - 6/36 20% Category I 6/18-6/36 6/60 - Nil 40% Category II 6/60-4/60 or 3/60 - Nil 75% Field of vision 10-20 Category III 3/60-1 Field F.C at 1ft - Nil 100% of vision 10o /60 or 6 O.A. No. 1788/2017 Category IV F.C at 1 ft-Nil F.C at 1 ft-Nil 100% Or field of vision 10o One eyed F.C at 1 ft.-Nil 30% persons 6/6 or Field of vision 10 (Note: F. C. means finger Count.) 3.3 Learned counsel for the applicant does not dispute the fact the in order to claim benefit, minimum visual disability has to be 40%, which the applicant is impaired by virtue of disability Certificate dated 10.1.2013 issued by AIIMS, New Delhi. Drawing strength from above, the learned counsel for the applicant would contend that while admitting the present OA, this Tribunal vide order dated 22.05.2017 was pleased to grant interim relief that "In the meanwhile we direct that one post of Assistant Teacher (Nursing), Post Code-68/10 shall be kept vacant."
4. Per contra, Learned counsel for respondents states that the applicant is not entitled to the relief(s) sought in the present OA and as such the OA is liable to be dismissed on following counts:-
4.1 In the year 2010, DSSSB issued recruitment Advertisement for the post of Assistant Teacher(Nursery) in MCD vide Post code No.-68/10. The Board while advertising the vacancies for the post of Assistant Teacher (Nursery) vide 7 O.A. No. 1788/2017 advertisement No.2/10, it has been clearly reiterated in Section "C" of the advertisement that the educational qualifications, age, experience etc., as stipulated in Section-A shall be determined as on the closing date of receipt of applications. The closing date for receipt of applications was 30.7.2010.
"In para No.10 (i) of the Section-C of the advertisement, it has further been clearly stated that the candidate applying for the posts should ensure that they fulfill all the eligibility conditions. Merely because a candidate has been allowed to appear at the examination will not be considered as a valid ground for his/her being eligible for the selection. If on verification at any time before or after the written examination or at any stage of recruitment process, it is found that they do not fulfill any of eligibility conditions on the closing date of receipt of application, his /her candidature for the post applied for will be cancelled by the Board/Appointing Authority."
4.2 As per Government of India, Ministry of Personnel, Public Grievances & Pension, Department of Personnel& Training OM No.336035/3/2004-Estt.dated 29.12.2005, 'Only such persons would be eligible for reservation in services/posts who suffer from from less than 40% of relevant disability. A person who wants to avail of benefit reservation would have to submit a disability certificate issued by a Competent Authority...' 4.3 The Board relied upon the statement of the applicant and allowed her candidature for the post of Assistant Teacher (Nursery), Post Code 68/10. However, subsequently while processing the result, it was found that the applicant attached a Visually Handicapped (VH) certificate issued by Deen Dayal 8 O.A. No. 1788/2017 Upadhaya Hospital, GNCT Delhi dt.15/7/2005 along with her application wherein the disability has been shown, as 35% VH disability. Thus her disability is less than 40% as prescribed in DoPT OM dated 29.12.2005 and VH certificate, issued by All India Institute of Medical Science(AIIMS) wherein the disability has been shown as 40% was issued on 10.01.2013,i.e after the cutoff date, her candidature was rejected. 4.4 As per Government of India, Ministry of Personnel, Public Grievances & Pension, Department of Personnel & Training OM No.336035/3/2004-Estt.dated 29.12.2005 as highlighted above, since the applicant, at the time of applying for the post of Assistant Teacher (Nursery), Post Code 68/10, was having only 35% disability and the certificate of 40% disability was issued after the closing date of receipt of applications, her candidature was rejected for not fulfilling the criteria as on closing date of receipt of applications, her candidature was rejected for not fulfilling the criteria as on closing date of receipt of applications.
5. ANALYSIS 5.1 In this regard, we have examined the following Rule position:-
"F.R. 10 Health certificate on first appointment.- Except as provided by this rule, no person may be substantively appointed in India to a permanent post in Government service without a medical certificate of health, which must be affixed to his first pay bill. A local Government may make rules 9 O.A. No. 1788/2017 prescribing the form in which medical certificates should be prepared, and the particular medical or other officers by whom they should be signed. It may, in individual cases, dispense with the production of a certificate, and may by general order exempt any specified class of Government servants from the operation of this rule."
5.2 As can be seen from advertisement No. 02/2010, opening date for receipt of applications: 12/07/2010 and closing date for receipt of applications was 30/07/2010 (In case the closing date happens to be a public holiday the next working day will be the last date for receiving of applications). 5.3 Clause 5 of the advertisement reads as under :-
"(5) Reservation Benefits
(i) Reservation benefits will be available to the SC/OBC/Physically Handicapped/Ex-Servicemen & other special category candidates in accordance with the instructions/ orders / circulars, issued from time to time by the Competent/Notified Authorities. The reservations benefits for the vacancies shall be admissible as per judgment 04-08-2009 of Hon'ble Supreme Court of India as passed in Civil Appeal No.5092/09 (arising out of SLP Civil No.24327 of 2005)- Subhash Chander & Ors vs DSSSB and ors with WP(c) No 507 of 2006- Sarv Rural & Urban Welfare Society vs Union of India & Ors.
(ii) Candidates who wish to be considered against reserved vacancies and /or to seek age relaxation, must submit duly attested copies of relevant certificates issued by competent/notified authority (in prescribed format) along with their application form, otherwise, their claim for SC/OBC/Physically Handicapped/ Ex-
Servicemen & other special category will not be entertained and their applications will be considered against Un-reserved (UR) category vacancies if eligible otherwise."
10O.A. No. 1788/2017 5.4 Furthermore, eligibility conditions for the said post read as under:-
"(4) Eligibility Conditions
(i) The candidate must be a citizen of India.
(ii) The educational qualifications, age, experience etc. as stipulated in SECTION-A shall be determined as on the closing date of receipt of applications.
(iii) A candidate must be in good mental and physical health and free from any physical defect, (expect wherever specific relaxation has been made) likely to be considered for appointment will be medically examined. A candidate after such medical examination as may be prescribed by the competent authority, if found not to satisfy the requirements for the post(s), will not be appointed.
(iv) In respect of above mentioned posts, the requirement and the category as given above, in the advertisement shall be determined and selections be made in accordance with the instructions/orders issued from time to time by the Competent/Notified Authorities."
5.5 As per clause 4(iii), it casts a duty upon the authorities that such candidates as are likely to be considered for appointment will be medically examined. A candidate after such medical examination as may be prescribed for the competent authority, if found not to satisfy the requirements for the post will not be appointed.
5.6 In terms of Government of India, Ministry of Personnel, Public Grievances & Pension, Department of Personnel & Training OM No.336035/3/2004-Estt.dated 29.12.2005 following has been clarified:-
11O.A. No. 1788/2017
"8. DEFINITIONS OF DISABILITIES: Definitions of categories of disabilities for the purpose of this Office Memorandum are given below:
(i)(a)Blindness: "Blindness" refers to a condition where a person suffers from any of the following conditions, namely:-
(ii) visual acuity not exceeding 6/60 or 20/200(snellen) in the better eye with correcting lenses; or
(iii) limitation of the field of vision subtending an angle of 20 degree or worse;
(b) Low vision: "Person with low vision" means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device."
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9. Degree of disability for reservation: only such persons would be eligible for reservation in services / posts who suffer from not less than 40 per cent of relevant disability. A person who wants to avail of benefit of reservation would have to submit a Disability Certificate issued by acompetent authority in the format given in Annexure I.
10. COMPETENT AUTHORITY TO ISSUE DISABILITY CERTIFICATE:- The competent authority to issue Disability Certificate shall be a Medical Board duly constituted by the Central or a State Government. The Central/State Government may constitute Medical Board(s) consisting of at least three members out of which at least one shall be a specialist in the particular field for assessing locomotor / cerebral/visual / hearing disability, as the case may be.
11. The Medical Board shall, after due examination, give a permanent disability certificate in cases of such permanent disabilities where there are no chances of variation in the degree of disability. The Medical Board shall indicate the period of validity of the certificate, in cases where there are chances of variation in the degree of disability. No refusal of disability certificate shall be made unless an opportunity is given to the applicant of being heard. On representation by the applicant, the Medical Board may review its decision having regard to all the facts and circumstances of the case and pass such orders in the matter as it thinks fit.
12. At the time of initial appointment and promotion against a vacancy reserved for persons with disability, the appointing authority shall ensure that the candidate is eligible to get the benefit of reservation.
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22. RELAXATION OF STANDARD OF SUITABILITY: If sufficient number of persons with disabilities are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies reserved for persons with disabilities cannot be filled on the basis of general standards, candidates belonging to this category may be taken by relaxing the standards to make up the deficiency in the reserved quota subject to the fitness of these candidates for appointment to the post / posts in question.
23. MEDICAL EXAMINATION: As per Rule 10 of the Fundamental Rules, every new entrant to Government Service on initial appointment is required to produce a medical certificate of fitness issued by a competent authority. In case of medical examination of a person with disability for appointment to a post identified as suitable to be held by a person suffering from a particular kind of disability, the concerned Medical Officer or Board shall be informed beforehand that the post is identified suitable to be held by persons with disability of the relevant category and the candidate shall then be examined medically keeping this fact in view.
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8. LIAISON OFFICER FOR PERSONS WITH DISABILITIES:
Liaison Officers appointed to look after reservation matters for SCs/STs shall also work as Liaison Officers for reservation matters relating to persons with disabilities and shall ensure compliance of these instructions."
5.7 The relevant paragraphs of the Rights of Persons with Disabilities Act, No. 49 of 2016 enacted on 27th December, 2016 reads as under:-
"An Act to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto.
WHEREAS the United Nations General Assembly adopted its Convention on the Rights of Persons with Disabilities on the 13th day of December, 2006.13 O.A. No. 1788/2017
AND WHEREAS the aforesaid Convention lays down the following principles for empowerment of persons with disabilities,--
(a) respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
(b) non-discrimination;
(c) full and effective participation and inclusion in society;
(d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) equality of opportunity;
(f) accessibility;
(g) equality between men and women;
(h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities;
AND WHEREAS India is a signatory to the said Convention; AND WHEREAS India ratified the said Convention on the 1st day of October, 2007;
AND WHEREAS it is considered necessary to implement the Convention aforesaid."
Section 34. Reservation.--(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:--
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) loco-motor 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 among persons under clauses (a) to
(d) including deaf-blindness in the posts identified for each disabilities:14
O.A. No. 1788/2017
Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:
Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.
(2) 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. (3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit."
5.8 The above Rule position would indicate that the Appointing Authorities are duty bound and also under obligations to ensure the compliance of provisions of RPWD Act. 5.9 With enactment of 'The Rights of Persons with Disabilities Act, 2016' on 19th April, 2017 and notification of 'The Rights of Persons with Disabilities Rules, 2017' on 15th June, 2017, instructions are issued in line with the provisions made therein regarding reservation for Persons with Benchmark 15 O.A. No. 1788/2017 Disabilities, as defined under Section 2(r) of the Act against the posts and services of the Central Government. 5.10 The International Classification of Diseases 11 (2018) classifies vision impairment into two groups, distance and near presenting vision impairment.
Distance vision impairment:
Mild - visual acuity worse than 6/12 to 6/18 Moderate - visual acuity worse than 6/18 to 6/60 Severe - visual acuity worse than 6/60 to 3/60 Blindness - visual acuity worse than 3/60 Near vision impairment:
Near visual acuity worse than N6 or M.08 at 40cm. (Source : WHO) 5.11 Reference can be drawn from the provision of the Employee's Compensation Act, 1923 [as amended through EC(Amendment)Act,2017], has been enacted as An Act to provide for the payment by certain classes of employers to their *[Employees] of compensation for injury by accident.
"Section 2 (g) "partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a *[employee] in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provided that every injury specified 16 O.A. No. 1788/2017 [in Part II of Schedule I] shall be deemed to result in permanent partial disablement Section 2 (l) defines "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a *[employee] for all work which he was capable of performing at the time of the accident resulting in such disablement:
Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more."
PART-II LIST OF INJURIES DEEMED TO RESULT IN PERMANENT PARTIAL DISABLEMENT Description of injuries Percentage of dis-ability Other injuries
25. Loss of one eye, without complications, the other being normal. 40%
26. Loss of vision of one eye, without complications or disfigurement of eye-ball, the other being normal . 30% 26A Loss of partial vision of one eye ... Loss of 10% 5.12 The relevant part of Ministry of Personnel, Public Grievances & Pension's OM No.36035/02/2017-Estt dated 15th January, 2018 regarding Reservation for the Persons with Benchmark Disabilities reads as under:-
"5. CERTIFICATE OF DISABILITY: A person who wants to avail the benefit of reservation will have to submit acertificate of disability issued by a Competent Authority. Such certificate in the event of selection of such person for any post, will be subject to such verification/re-verification as may be decided by the competent authority."' 17 O.A. No. 1788/2017 5.13 In case of disability compensation, the Hon'ble Apex Court in Civil Appeal No. 6523 of 2022 decided on 16.09.2022 titled, Suresh Paswan Vs. M/s. Kla Construction Technologies Pvt. Ltd. & Ors. has observed as under :-
"We have heard the learned counsel for the respective parties at length. We have also gone through and considered the earlier disability certificate dated 13.09.2009 relied upon by the claimant as well as the learned Commissioner, Employees' Compensation as well as the report dated 09.11.2017 of the Medical Board constituted pursuant to the order passed by the High Court dated 21.03.2017. It is true that the Medical Board in its report dated 09.11.2017 has opined that the appellant has not suffered any permanent disability. However, at the same time, it is required to be noted that the disability certificate issued by Dr. Umesh Kumar Singh, Civil Surgeon-cum- Medical Officer,Gardiner Road Hospital, Patna was of the year 2009 and the Medical Board constituted pursuant to the order passed by the High Court examined the injured employee after a period of approximately nine years from the date of accident. At the relevant time, the employer did not make any application before the Commissioner, Employees' Compensation to constitute a Medical Board and the injured be examined by the Medical Board. The employer ought to have made such a request before the Commissioner, Employees' Compensation at the earliest opportunity. Be that as it may, considering the fact that the appellant did suffer the injuries due to fall and at the relevant time, it affected his 60% earning capacity, it may not be that nothing was to be awarded to the appellant - injured employee by way of compensation."
5.14 In view of above analysis, we would find that even though in case of assessing the suitability of the candidature for seeking benefit of reservation in categories (except physically handicapped category) late date of closing application ought be a determinate factor. However, same yardstick cannot be applied in case of claim under physically handicapped category there cannot be straight jacket formula as the medical condition may improve or deteriorate and should be left to the discretion of 18 O.A. No. 1788/2017 medical Board. The candidature of candidate cannot be rejected out rightly unless and until the rigors of provision of RPWD, 2016 read with OM(s) issued from time to time are complied with.
5.15 To be more specific we would highlight that following assessment needs to be done while rejecting the candidature out rightly:-
(i) Latest medical certificate, i.e., Certificate of Disability; in the event of selection of such person for any post, will be subject to such verification/re-verification as may be decided by the competent authority.
(ii) Relaxation of Standard of Suitability: if sufficient number of candidates with benchmark disabilities candidates are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for them provided they are not found unfit for such post or posts. However, this provision shall not be used to allow any relaxation in the eligibility criteria laid down for the issuance of certificate of disability.
(iii) Medical Examination: As per Rule 10 of the Fundamental Rules, every new entrant to Government Service on initial appointment is required to produce a medical certificate of 19 O.A. No. 1788/2017 fitness issued by a competent authority. In case of medical examination of a person with benchmark disabilities for appointment to a post identified as suitable to be held by a person suffering from a particular kind of disability, the concerned Medical Officer or Board shall be informed beforehand that the post is identified suitable to be held by persons with benchmark disabilities of the relevant category and the candidate shall then be examined medically keeping this fact in view.
(iv) Competent Authority To Issue Disability Certificate:- The Competent Authority to issue Disability Certificate shall be a Medical Board duly constituted by the Central or a State Government. The Central / State Government may constitute Medical Board(s) consisting of at least three members out of which at least one shall be a specialist in the particular field for assessing loco motor / cerebral / visual / hearing disability, as the case may be.
(iv) The Medical Board shall, after due examination, give a permanent disability certificate in cases of such permanent disabilities where there are no chances of variation in the degree of disability.
(v) The Medical Board shall indicate the period of validity of the certificate, in cases where there are chances of variation in the 20 O.A. No. 1788/2017 degree of disability. No refusal of disability certificate shall be made unless an opportunity is given to the applicant of being heard. On representation by the applicant, the Medical Board may review its decision having regard to all the facts and circumstances of the case and pass such orders in the manner as it thinks fit.
(v) At the time of initial appointment and promotion against a vacancy reserved for persons with disability, the appointing authority shall ensure that the candidate is eligible to get the benefit observation.
(vi) The OM also contemplate a liaison officer for persons with disabilities for SC/ST's candidates. (the applicant herein falls in SC category)
6. CONCLUSION :-
6.1 In the facts of the present case, we observe that the Rules position, as enumerated herein above, have not been strictly adhered to. We find that disability certificate dated 15.7.2005, i.e., almost six years prior to date of advertisement. It is not in dispute that prior to her appearing in examination on 31.8.2014, the applicant submitted Disability Certificate dated 10.1.2013, which shows that the applicant was having 40% disability, has been ignored by the respondents and candidature of the applicant has 21 O.A. No. 1788/2017 been rejected based on earlier Disability Certificate dated 15.7.2005, wherein the disability is shown to be 35%. Hence, the findings stated in preceding paragraphs would be deemed fit and proper that an opportunity shall be given to the applicant and verification/re-verification shall be done afresh by a Medical Board duly constituted by the Competent Authority so as to assess and issue Certificate of Disability.
6.2 Accordingly, the Competent Authority shall constitute Medical Board(s) consisting of at least three members out of which at least one shall be a specialist in the relevant field. The said Medical Board be constituted within period of 30 days from the date of receipt of a certified copy of this Order. In the event, the Medical Board finds the applicant within the parameters of minimum percentage of disability required for selection of applicant, necessary certificate be forwarded to Competent Authority forthwith, not later than 10 days from the date of the medical examination. Upon receipt of the aforesaid Certificate, the applicant shall be offered a letter of appointment subject to fulfilling all other eligibility conditions for appointment within a period of 30 days thereafter.
6.3 Needless to say the applicant shall be entitled to consequential benefits on notional basis from the date of joining of her immediate junior in physically handicapped category. 22 O.A. No. 1788/2017 6.4 The applicant shall be entitled to actual benefits from the date of her joining. The appointment shall be adjusted as against existing vacancy and/or anticipated vacancy. 6.5 With these directions, the OA is allowed in aforesaid terms. 6.6 No order as to costs.
(Manish Garg) (Tarun Shridhar)
Member (J) Member (A)
/sm/