Central Administrative Tribunal - Madras
J Nithya vs M/O Communications on 9 July, 2024
1 OA 310/00407/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00407/2023
Dated this the 9th day of July Two Thousand Twenty Four
CORAM:
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
&
HON'BLE MR. M. SWAMINATHAN, Member (J)
J. Nithya
D/o Jagadeeswaran
No. 9/73, Chettipannayam
Vadakkukadu, Belukurichi
Namakkal - 637 402. ... Applicant
By Advocate M/s. R. Malaichamy
Vs
1. Union of India
Rep. by the Assistant Director General - GDS
Ministry of Communications
Department of Posts (GDS Section)
Dak Bhavan, Sansad Marg
New Delhi - 110 001.
2. The Chief Postmaster General
Tamil Nadu Circle
Anna Salai, Chennai - 600 002.
3. The Superintendent of Post Offices
Namakkal Division
Namakkal - 637 001. ... Respondents
By Advocate Mr. J. Vasu
2 OA 310/00407/2023
ORDER
(Pronounced by Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member(J)) In the instant OA, the applicant seeks the following relief:
"i. To call for the records of the 1 st respondent pertaining to his online notification for the post of GDS Cycle - III/2020-2021, Tamil Nadu Circle, made in STC/12-GDSONLINE/2020 (in so far as the classification of disability categories at column XVI) in concerned in so far as the applicant and declare it as unconstitutional and also call for the records of the 3 rd respondent pertaining to his notice of examination made in No. BPM/Selur BO/Dlgs dated 02.05.2023 and set aside the same, consequent to, ii. direct the respondents to confirm the provisional appointment of the applicant as GDS BPM, Selur BO dated 01.09.2020 as permanent with all attendant benefits and iii. To pass such further orders as this Tribunal may deem fit and proper."
2. The facts of the case, as submitted by the applicant, are as follows, in brief:-
The applicant applied for the post of GDS Cycle - III/2020-2021, against the 1st respondent online notification, dated 01.09.2020, under the PWD - B category. She was selected against the said category and was issued order of provisional appointment, dated 01.09.2020. She was sent for induction training, vide order, dated 12.02.2021. On completion of the training, the applicant joined duties and has been working as GDS BPM, Selur BO, for 2 years and 2 months. The 3 rd respondent issued to her an order of termination, dated 02.05.2023, with one month notice, alleging
3 OA 310/00407/2023 that the applicant belongs to PWD-C category instead of PWD-B category, as claimed by her. Hence, this OA.
3. Respondents have filed their short reply statement stating that the post, in question, is reserved for the PWD-B category (hard of hearing). During the certification verification/document verification, the applicant "produced Disability certificate illustrating herself as LD (locomotors disabilities) which might be considered as PWBD-C category and S/s. J. Nithya has been recruited against category B which is not correct", and, hence, the termination order was issued to the applicant vide order, dated 02.05.2023. Accordingly, respondents pray for dismissal of the OA.
4. Rejoinder has been filed by the applicant.
5. Heard both sides and perused the pleadings available on record.
6. The termination notice, dated 02.05.2023, states as under:
the services of Selvi J. Nithya, "who belongs to PWD- C category / selected against PWD-B Category and provisionally engaged as BPM, Selur BO a/w Paundamangalam SO with effect from 01.03.2001 F/N in the TRCA scale of Rs. 12000-Rs.29380 Level-I, shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on or, as the case may be, tendered to her as her selection was made in violation of rules."
7. The offer of engagement, dated 15.01.2021, states that Ms. Nithya. J, who belongs to PWD-B category, has been selected for provisional engagement as GDS BPM, Selur B.O. It is found that, in her online 4 OA 310/00407/2023 application form dt. 21.09.2020, for GDS engagement (Annexure R2), she has declared herself to be in PH: Category-B (Hard of Hearing).
8. The advertisement, dated 01.09.2020, for the said post, shows the categories of disability, at Para XVI (i), as follows:
Categories of disability suitable for Sl. No. Name of the Posts the post
(a) Low vision (LV)
(b) D(Deaf), HH (Hard of hearing).
(c) One Arm (OA), One leg (OL), Leprosy Cured, Dwarfism, Acid BPM, ABPM, Dak 1 Attack Victim, Sevaks
(d) Specific learning disability.
Multiple disabilities from amongst disabilities mentioned at (a) to (d) above except Deaf and Blindness.
9. The PH passbook issued by the Department (Annexure R4), lists the disabilities of the applicant. However, the learned counsel for the applicant contends that she has no other problems, except those related to hearing.
10. The circular, dated 26.02.2019, of the Ministry of Communications to all the departmental heads shows as follows:
"3.Now, the Parliament has passed a new Act viz. "THE RIGHTS OF PERSONS WITH DISABILITIES ACT 2016"
which has come into force with effect from 19 th April 2017. The provisions of this Act are mandatory and binding on all establishments. According to this Act, no Government establishment shall discriminate against any person with disability in any matter relating to employment. Every Government shall appoint in every Government establishment, not less four percent of the total number of vacancies in the cadre strength in each group of posts meant of be filled with persons with benchmark disabilities under clause (a) (b) and (c) and one percent for persons with benchmark disabilities under clause (d) and (e) namely:-
(a) Blindness and low vision 5 OA 310/00407/2023
(b) Deaf and Hard of Hearing
(c) Locomotors disabilities 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 (a) to
(d) including deaf-blindness in the post identified for each disability."
"4 (e) Following categories of disability are suitable for the posts in GDS Sl. Categories of disability suitable Name of the Posts No. for the post
(a) Low vision (LV)
(b) D(Deaf), HH (Hard of hearing).
(c) One Arm (OA), One leg (OL), Leprosy Cured, Dwarfism, Acid BPM, ABPM, Dak 1 Attack Victim, Sevaks
(d) Specific learning disability.
Multiple disabilities from amongst disabilities mentioned at (a) to (d) above except Deaf and Blindness.
11. In the case of the applicant, the learned counsel for the respondents, shows a list of ailments which are far in excess of those in category 'B' and are fit to be covered, according to him, under multiple disabilities.
12. The learned counsel for the applicant contends that the termination notice does not show multiple disabilities. It simply places the applicant in Category 'C', which stands for the following:
"c) One Arm (OA), One leg (OL), Leprosy Cured, Dwarfism, Acid Attack victim"
13. The descriptive notes regarding ailments which follow the table in the Circular, dated 26.02.2019, of the Ministry, seem to have been 6 OA 310/00407/2023 overlooked while preparing the notification, (Annexure A-1), calling for applications for the post of GDS. At para 3(e) of the Circular, the following appears:-
"e. Locomotors disabilities including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy"
Neither the table in the circular, nor the notification, dated 01.09.2020, calling for applications, carries the separate letter / alphabet for clause "e".
14. We find that the only category in the notification/advertisement that matches the disability of the applicant falls within Category B. Thus, we cannot put the blame of misrepresentation on the applicant. Moreover, it is only on 01.12.2022, that the Supdt. of Posts, Namakkal Division, has addressed the DMO, Namakkal, to certify the disability through the Medical Board, for proceeding further in the confirmation process. The relevant portion of the letter is extracted below:
"To The DMO Namakkal.
Sub: Referring the candidate to obtain observation of Medical board - Reg.
Ref: Arising.
Dear Sir/Madam Selvi. J. Nithya get selected to the post of Branch Post Master of Selur BO a/w Paundamangalam SO in Namakkal division under Physically handicapped category and she is impaired with 60% disability as per the passbook issued (ID Card No. 34814) by Government of Tamil Nadu. Hence it is kindly requested to certify the disability of the said candidate by the medical board for processing further in the confirmation process.
7 OA 310/00407/2023 DA: Copy of passbook issued by dept. For the welfare of differently abled, Tamil Nadu Govt."
15. This letter refers to the National Identity Card No. 34814 issued by the Government of Tamil Nadu to Differently Abled Persons. The subsequent certificate, dated 04.01.2023, of the District Medical Board, Namakkal, has simply confirmed the observations in the National Identity Card regarding disability, as follows:
"DISTRICT MEDICAL BOARD NAMAKKAL This is certify that Selvi J. Nithya S/o Jegadeeswaran appeared before medical on 4.01.2023.
Known case of KLIPPER FEIL SYNDROME with KYPHO SCOLIOSIS with Disability percentage 60% (SIXTY) and is not likely to improve. (Fixed deformity). Issued certificate is valid and genuine."
16. The description of disability under the Klippel-Feil Syndrome (KFS), as shown at Annexure A-6 is as follows:
"Occasionally, people with Klippel-Feil syndrome (KFS) have few or no symptoms. Most people, however, do have symptoms, which range from mild to severe. Symptoms vary greatly from person to person."
Under this, certain common signs and symptoms have also been listed which include deafness in 30% of people. And further, it is stated that other problems include hearing problems or deafness. The National Identity Card, mentioning KFS, appears to be of the year 2020.
17. The applicant, on being provisionally selected, reported for training and furnished the documents for verification as per the Offer of 8 OA 310/00407/2023 Engagement, dated 15.01.2021. These documents included the disability certificate. As per the Training Schedule, dated 12.02.2021 (Annexure A4), she has undergone Induction Training from 15.02.2021 to 27.02.2021 at different locations. The termination notice is of 02.05.2023, which is more than 2 years after completion of training.
18. Despite issue of the notice for termination, the applicant is continuing in service, on the strength of interim orders, dated 10.05.2023, of this Tribunal. It is not the contention of the Respondents that she is unable or unfit to perform the duties assigned to her.
19. The list of ailments and even the descriptive notes in Para 3 of the Circular, dated 26.02.2019, of the Ministry of Communications, are enabling provisions, of which the spirit emerges from the wordings "categories of disability suitable for the post." The same words appear in para XVI (1) of the notification, dt. 01.09.2020, over the ailments listed under different categories. Whether Category-B or C, it is clear that these categories are not meant to debar a candidate from selection, as, under the above categories, inspite of these ailments, they shall be treated as "suitable for the post". So the argument whether she falls in Category 'B' or 'C', based on which termination orders are issued, cannot be accepted at all. In the same circular, even locomotors disabilities and muscular dystrophy at Clause 'C', which seem to have been left out of the advertisement, are not found to be debarring the candidates from selection.
9 OA 310/00407/2023 Other than the allegation of misrepresentation in respect of category of disability, no other ground has been raised by the respondents to justify the notice for termination.
20. In the light of the above, since the applicant is performing her duties and even the Board of Doctors at Namakkal have not declared her unfit, we do not find any grounds to sustain the notice for termination, dated 02.05.2023. The impugned order, dated 02.05.2023, is hereby quashed and set aside. The interim order granted on 10.05.2023 is made absolute.
21. OA is allowed. Pending MAs, if any, stand closed. No costs.
(M. Swaminathan) (Varun Sindhu Kul Kaumudi)
Member (J) Member (A)
09.07.2024
as