Central Administrative Tribunal - Chandigarh
Amit Kumar vs Staff Selection Commission on 31 July, 2018
Author: P. Gopinath
Bench: P. Gopinath
( O.A.No.060/01010/2017) 1
( Amit Kumar vs. UOI & Ors. )
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A.NO. 060/01010/2017 Date of order:- 31.7.2018.
Coram: Hon'ble Mr. Sanjeev Kaushik, Member (J)
Hon'ble Mrs.Gopinath, Member (A).
Amit Kumar s/o Sh. Umed Singh Sangwan, village Adampur, Post
Adampur Dadhi, Distt. Bhiwani(Hharyana) PIN-127 310
......Applicant.
( By Advocate :- Sh. Sunil K.Nehra)
Versus
1. UOI through Secretary Min. of Personnel, Public Grievance s &
Pensions, Deptt. Of Personnel & Training, Govt. of India, North
Block, New Delhi-1.
2. Chairman, Staff Selection Commission, Block No.12, 5th floor,
CGO Complex, Lodhi Road, New Delhi.
3. The Under Secretary (Administrtive III B ), Central Board of
Excise & Custom, Deptt. Of Revenue (MOF), HUDCO Vishala
Buildingsw, Bhikhaji Kama Palace, New Delhi-66.
4. Additional Commissioner, Cadwet Control Unit, O/o the Central
Board of Excise & Customs, Jaipur Zone, NCR Building, Status
Circle, ' C 'Scheme, Jaipur (Raj) 302 005.
...Respondents
( By Advocate : Shri Sanjay Goyal).
ORDER
Sanjeev Kaushik, Member (J):
The challenge in the present Original Application is to order dated 23.2.2017 (Annexure A-1) whereby the applicant was declared unfit for appointment to the post of Inspector, Central (Central Excise, Preventive Officer & Examiner ) in the respondent department.
( O.A.NO.060/01010/2017 ) 2
2. Undisputed facts which led to filing of the instant OA are that the respondents issued an advertisement on 18.1.2014 for Combined Graduate Level Examination, 2014 for various posts including the post of Inspector (Central Excise) with closing date as 14.2.2014. The applicant, who was eligible in terms of eligibility criteria applied for the said post online and he was allowed to participate in the selection process firstly by appearing in two tier examination and was declared successful. Secondly, the applicant was directed to undergo physical test and medical examination vide letter dated 18.3.2016 fixed for 5.4.2016 in the office of Chief Commissioner, Central Excise, Jaipur Zone, Jaipur. By another letter dated 5.4.2016, the applicant was directed to undergo medical examination and produce the medical certificate of fitness by stating therein that he is not suffering from colour blindness. The applicant got himself medically examination from H.C.M.S. I Civil Surgeon, Bhiwani, on 7.4.2016 who certified that the applicant is free from colour blindness vide medical certificate No.115 dated 7.4.2016. It has further been certified by the Civil Surgeon, Bhiwani, that he did not discover any disease conditional by affecting or bodily infirmity except one eyed, and he did not consider it a dis-qualification for employment in the office of Central Excise department as Inspector. The Civil Surgeon, has further certified that the applicant who is having one eye is not a dis-qualification for employment as he is having complete 6:6 vision in that eye. By impugned order dated 23.2.2017, the respondents have cancelled the candidature of the applicant for the post of Inspector on the ground that one eyed person cannot be appointed on the post of Inspector ( Central Excise, Preventive Officer & Examiner). Immediately thereafter, the applicant ( O.A.NO.060/01010/2017 ) 3 ( Amit Kumar vs. UOI & Ors.) submitted a representation on 3.5.23017 wherein he requested the respondents to reconsider their decision as the applicant had already been certified as medically fit for the post in question. Hence the present OA.
3. The applicant has taken various grounds for invalidiation of the impugned order. Firstly that one eye with the vision 6 : 6 will not render him as ineligible for appointment as Inspector because it has not been stipulated in the advertisement that the person with one eye is ineligible for appointment as Inspector. Thus, it is submitted that the impugned order is not only wholly illegal, arbitrary, but also violates the rights guarantee under Articles 14 & 16 of the Constitution of India.
4. The respondents while filing written statement did not dispute the factual accuracy. However, they submitted that since the applicant is having only one eye, therefore, in terms of the Board advice dated 5.8.2016 and letter dated 24.1.2017, they had cancelled the candidature of the applicant and returned his dossier to the SSC vide letter dated 14.3.2017. It has further been submitted therein that the post in question is also not reserved for physically handicapped persons as per reservation provided to the Physically handicapped persons in terms of Articles 14 & 16 and Persons with Disabilities ( Equal Opportunities, Protection of Rights & Full Participation ) Act, 1995. Therefore, it is submitted that the impugned order be upheld and OA be dismissed.
( O.A.NO.060/01010/2017 ) 4
5. We have heard the learned counsel for the respective parties and have given our thoughtful consideration to the entire matter.
6. Shri Nehra, learned counsel appearing on behalf of the applicant vehemently argued that the impugned order declaring the applicant unfit for the post of Inspector on the plea that he is having one eye is illegal, arbitrary and violatives the rights guarantees under Articles 14 & 16 of the Constitution of India. He further argued that once there is no such condition imposed in the advertisement, then the respondents cannot impose such condition subsequently which was not in their actual advertisement because the rule of game cannot be changed after its commencement. He also submitted that once the vision of the applicant in one eye is 6: 6 and there is no distortion and since the vision of the applicant in one eye is normal, the denial of appointment to him on the ground that he cannot see from 2nd eye, depriving of appointment to him is illegal and arbitrary.
7. To buttress his plea, he placed reliance on the judgment passed by the Hon'ble jurisdictional High Court in the case of Shikha Malhotra versus State Bank of India ( 2008(1) S.C.T. Page 806; judgment passed by the Allahabad High Court in the case of Yogesh Dutt versus Union of India (2011(7) S.C.T. Page 67 and judgment passed by the Hon'ble Apex Court in the case of Amita versus Union of India ( 2005(3) S.C.T. Page 785) which has been relied upon by the High Courts. Therefore, it is prayed that the impugned order be set aside and the respondents be directed to immediately offer appointment to the applicant on the post of Inspector. ( O.A.NO.060/01010/2017 ) 5
8. Per contra, Shri Sanjay Goyal, learned counsel appearing on behalf of the respondents reiterated what has been stated in the written statement.
9. Apart from that, he submitted that since the clarification has been issued by the Board that one eyed person cannot be appointed, therefore, they have returned the dossier of the applicant to the Staff Selection Commission, for referring the applicant to some other department.
10. We have given our thoughtful consideration to the entire matter on the basis of the pleadings available on record with the able assistance of the learned counsel for the parties.
11. The solitary question that arose for our adjudication in the present OA is, whether one eyed person can be denied appointment to the post of Inspector in the respondent Department?
12. A conjunctive perusal of the pleadings, as noticed herein above, makes it clear that the applicant being fully eligible, applied for the post of Inspector Central ( Central Excise, Preventive Officer & Examiner) under the general category, as he could not apply under the physically handicapped quota because his disability is 30% and only those persons who are having disability of 40% or above can apply for the post reserved under that quota. The applicant was selected, but was denied appointment solely on the ground that one eyed person cannot be appointed as Inspector. The pleadings also suggest that neither it is in the advertisement nor there are any instructions covering the field that one eyed person cannot be appointed to the indicated post.
13. On the contrary, when the applicant was got medically examined, which is a pre-condition before appointment, he was found ( O.A.NO.060/01010/2017 ) 6 ( Amit Kumar vs. UOI & Ors.) medically fit by the competent doctor i.e. Civil Surgeon, Bhiwani, who also opined that the applicant is free from colour blindness for which the applicant was given certificate from a competent doctor. Perusal of the certificate given by the Civil Surgeon makes it clear that the applicant is eligible for employment as is seen from Annexure A-4 (running page 54 of the paper-book). The view taken by the respondents in cancelling his candidature for the post in question is not supported by any documentary evidence. Even the communication dated 5.8.2016, which the respondents are relying upon, does not help them because the applicant is not asking for appointment under the quota reserved for physically handicapped category, rather, he is asking for appointment under the general quota, after being declared successful by them. Even the letter dated 21.7.2017, which gives a reference to Board letter dated 1.7.2010, where they identified the posts reserved for persons with disability under CBEC, will not help because as noticed above, he is not asking for reservation under that category
14. Thus, the impugned order cannot sustain in the eyes of law. Even otherwise, we find support from the judgment passed by the jurisdictional High Court which is based upon the judgment passed by the Hon'ble Supreme Court in the case of Amita (supra), where the jurisdictional High Court has held that a person with one eye cannot be non-suited for appointment. Relevant paras 5 to 10 of the said judgment read as under :-
"5. However, the said stand of the respondents is nothing but based upon surmises and conjectures. The vision of the petitioner with left eye is 6 x 6 and there is no distortion. Once, the vision of the petitioner in respect of one eye is not wanting in any manner, the denial of appointment on the ground that the petitioner ( O.A.NO.060/01010/2017 ) 7 ( Amit Kumar vs. UOI & Ors.) cannot see from other eye is depriving of an appointment to an eligible candidate. If the respondents can appoint a totally blind person as a Probationary Officer, it could not be explained as to why, the petitioner who has 6 x 6 vision from one eye, cannot be appointed. It is not disputed by the learned Counsel for the respondents that a candidate who is totally blind or has impaired vision is eligible for appointment against the seats reserved for visually handicapped persons. No doubt, the petitioner is not suffering from a disability within the meaning of Section 2(b) of the Act, but it cannot be said that the petitioner is not eligible for appointment as a general category candidate as well. The petitioner has to fall in one or the other category. If the petitioner is not entitled to reservations for the post meant for visually handicapped category, the petitioner has to be treated as a general category candidate.
6. In fact, denied of opportunity of appointment on such ground is wholly arbitrary, discriminatory and violates the rights guaranteed under Articles 14 and 16 of the Constitution of India. The petitioner is being denied right of appointment for wholly untenable reason. The stand of the respondent is without any justification and is wholly arbitrary and has caused manifest injustice to the petitioner.
7. Reference may be made to a judgment of the Hon'ble Supreme Court in Amita v. Unon of India . In the said case, the candidate was not even permitted to appear as a candidate for appointment to the post of a Probationary Officer. During the pendency of the petition before the Hon'ble Supreme Court, the Union of India has filed an affidavit in respect of certain jobs which could be performed by the visually handicapped persons. Written submissions were filed on behalf of the Union of India, wherein it was stated to the following effect:
It was further stated that the writ petitioner being a visually impaired candidate has to either appear in the examination for selection under the reserved category or she can appear with the general candidates. It was further clarified that if she wants to appear as a general category then she has to compete with the general category candidates only and she cannot be given any weightage as the same would amount to discrimination to others competing with her in the said category. It was further clarified the position that O.M. No. 36035/4/2003-Establishment dated 8.7.2003 provided that the vacancies reserved for any category need to be filled by persons belonging to that category and such vacancies are not open to others. On the other hand, unreserved vacancies are open to all and ( O.A.NO.060/01010/2017 ) 8 ( Amit Kumar vs. UOI & Ors.) reserved category candidates cannot be denied the right to compete for appointment against such vacancies, provided they are otherwise eligible.
8. Considering the stand of the Union of India, the Hon'ble Supreme Court has returned a finding that the nature of duties of a Probationary Officer can be performed by a visually impaired candidate and some percentage of impaired candidates are entitled to be selected and appointed as Probationary Officers of the Bank either from the General Category or from the reserved category. The Hon'ble Supreme Court in the Said judgment has observed as under:
That apart, the writ petitioner, although a visually impaired lady had not asked for any special favour for selection to the post of Probationary Officer. The writ petitioner without asking for any favour had only applied for writing the examination for selection not as a reserved handicapped candidate but along with general candidates who were allowed by the Board to sit and write the examination. Since the writ petitioner was similarly situated with other general candidates, and the writ petitioner had not asked for any advantage for being a visually impaired candidate, we failed to understand why she was not permitted to sit and write the examination for the post of Probationary Officer in the Bank.
At the risk of repetition, it may be reiterated that the writ petitioner fulfilled all the conditions mentioned in the advertisement for the post. The primary object which is guaranteed by Article 16(1) is equality or opportunity and that was violated by the Board by debarring the writ petitioner from appearing in the examination on the mere fact of disability which was not mentioned in the advertisement and which according to the writ petitioner is not an impediment for the post. We are therefore, of the view that the action of the Board was arbitrary, baseless and was in violation of the right of the writ petitioner under Article 16(1) of the Constitution.
9. In the present case the petitioner has not sought any reservation as a visually handicapped person, therefore, she as a General Category candidate is entitled to be appointed as Probationary Officer.
10. In view of the above, we have no hesitation in setting aside and quashing the impugned order (Annexure P.5) and to direct the respondents to appoint the petitioner with all consequential benefits.
The consequential benefits shall include pay fixation and seniority from the date, the other appointments were made, pursuant to advertisement (P.1). However, ( O.A.NO.060/01010/2017 ) 9 ( Amit Kumar vs. UOI & Ors.) the petitioner shall not be entitled to any arrears of salary prior to her appointment. Such directions be complied within a period of two months from today. The view expressed in the case of Shikha Malhotra ( supra) has been followed by the Hon'ble Allahabad High Court in the case of Yogesh Dutt versus Union of India ( supra) where the High Court set aside the order therein by ordering that one eye candidate cannot be debarred from employment unless job requires otherwise.
15. In the light of the above, we have no option but to answer the question in affirmative and the impugned order is accordingly quashed and set aside. The respondents are directed to offer appointment to the applicant forthwith. No costs.
(SANJEEV KAUSHIK) MEMBER (J) (P.GOPINATH) MEMBER (A).
Dated:- 31.7.2018.
Kks ( O.A.NO.060/01010/2017 ) 10 ( Amit Kumar vs. UOI & Ors.)