Central Administrative Tribunal - Allahabad
Jhumjhum Chattarjee vs General Manager E C Rly on 19 March, 2024
1
Reserved on 12.03.2024
Pronounced on 19.03.2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Original Application No.296 of 2017
Present:
Hon'ble Mr. Justice Rajiv Joshi, Member-(Judicial)
Hon'ble Mr. Mohan Pyare, Member- (Administrative)
Juhmjhum Chatterjee D/o Sri Sujoy Chatterjee,
Aged about 38 years, R/o D 52/6, Laxmikund,
Luxa, Chhitupur, Mahmoorganj, Varanasi, U.P.
...........Applicant
By Advocate: Shri Sameer Srivastava
Versus
1. Union of India through its Chairman Railway Board, Ministry of
Railways, Rail Bhawan, New Delhi.
2. Deputy Chief Personnel Officer, East Central Railway, Hajipur.
3. Divisional Railway Manager, Mughalsarai, District-Chandauli.
4. The Chief Commissioner for Persons with Disabilities.
------------Respondents
By Advocate: Smt. Rachna Dubey
ORDER
Delivered by Hon'ble Mr. Mohan Pyare, Member-(Administrative) Heard Shri Sameer Srivastava, learned counsel for the applicant and Smt. Rachna Dubey, learned counsel for the respondents.
2. By way of this original application the applicant has sought the following reliefs:-
"a) That the Tribunal may issue an order or direction in the nature of certiorari to quash & set aside the impugned order dated 12.08.2016 issued by Respondent No.2 (Annexure No. 1).2
b) That the Tribunal may issue an order or direction in the nature of mandamus commanding the respondents to join the applicant over the Group 'D' post in the HH Category and extend all consequential benefits to the applicant.
c) That the Tribunal may issue an order or direction in the nature of mandamus commanding the Respondents to call for entire records pertaining to the applicant before this Hon'ble Court.
d) That the Tribunal may pass any other or further order which this Hon'ble Tribunal may pass in the circumstances of the case.
e) To award the cost of this application to the applicant."
3. The facts of the case are that the applicant is a deaf and dumb girl, with 100% disability and passed the "Purva Madhyama Examination" equivalent to "High School Examination" from Sampoorananda Sanskrit University in the year 1993. An advertisement was issued on 19.08.2006 for engagement of Group 'D' categories reserved for physically handicapped person (in short PHP) for East Central Railways. The applicant has filled up the application form on 20.12.2006 (4.5 of the OA) in her own hand writing in the prescribed format for Group D post under PH category and sent the same to the Divisional Railway Manager, Mughalsarai, District Chandauli. Written examination was held on 04.02.2007 for the said post. Only 7 candidates had qualified in the abovementioned written examination against the 7 sanctioned strength of Group 'D' post and the applicant topped the list securing highest marks. Thereafter the applicant was called for screening test on 23.03.2007. The final list was issued on 31.03.2007 and the name of the applicant was missing and out of 7 sanctioned posts only 6 were filled up. After a gap of more than one year vide letter dated 05.04.2008 the applicant was informed that inadvertently she was called for written examination although she was not eligible and two reasons were mentioned for the same i.e. (i) The last date for receipt of application was fixed on 13.11.2006 whereas applicant submitted her application on 20.12.2006. (ii) The application form submitted by the applicant was also incomplete and in a different format. The above said reasons were detected during the screening by the committee members. On 02.11.2010 the applicant has preferred a representation to the respondents. When no action 3 was taken on the representation preferred by the applicant on 02.11.2010, she filed a complaint on 29.10.2011 before The Chief Commissioner of Person With Disabilities (CCPD in short), with a prayer to direct the respondents to provide an opportunity of appointment. Vide letter dated 22.12.2011, it was informed to the applicant from the O/o The CCPD to furnish the complaint under Rule 42 (1) of the Person With Disabilities Rules, 1996. The office of The CCPD has been set up under Section 57 of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 and has been mandated to take steps to safeguard the rights of persons with disabilities. The Chief Commissioner is vested with the power of a civil court under the Code of Civil Procedure. The proceedings before the Chief Commissioner shall be judicial proceedings within the meaning of Section 193 and 228 of the IPC and it shall be deemed to be a Civil Court for the purpose of the protection of the rights. After running from pillar to post when no option was left the applicant filed a petition Under Rule 42(1) of Person With Disabilities Rules as Case No. 84 on 09.1.2012 before The CCPD against the respondents with the prayer to arrange for the selection of the applicant for 1 post which was kept vacant for Group 'D' since the applicant has qualified for that position. After several reminders sent from the O/o Court of Chief Commissioner for Person With Disabilities (In Short "Court") in the abovementioned case a written objection had been filed by the respondents on 28.08.2014, taking the same ground that inadvertently the applicant was called for the written examination and during the screening the committee found that the application of the applicant was received after the due date, percentage of disability was not mentioned and the application was not in the prescribed format. On 08.07.2016 a detailed order was passed in Case No. 84 by the Learned Court in favour of the applicant and directed the respondents to consider the candidature of the applicant.
4. Per contra the respondents in their counter affidavit has submitted that as per notification dated 19.08.2006 the mode of selection was "written and 4 certificate verification" and consequently for group 'D' vacancy of Visual Handicapped, Orthopedic, hearing Handicapped candidates, 958 numbers of candidates appeared for written test on 04.02.2007, in which only 31 candidates passed in the required written test for Group 'D' category and result of written test was published on 23.02.2007. The staff who was responsible for over looking the deficiencies/discrepancies in the application form of the applicant due to which the applicant was inadvertently called for the said examination, was proceeded under discipline and appeal Rules, 1968. The applicant was not eligible for the examination, however, she was called inadvertently, as such, the Screening Committee rightly rejected the candidature of the applicant.
5. In her rejoinder affidavit the applicant has almost reiterated the grounds taken in the original application and emphasized that the form of the applicant was submitted within the time as per the notification but it is surprising for the applicant also as to when the application was shown to her and she found that the last date was written as 20.12.2006. Once the form of the applicant has been accepted by the respondents then it implied in totality that the form is within the due date. The applicant has cleared the written examination and her candidature was rejected only on the ground that her application form was submitted after the due date and the date mentioned in the application form clearly shows that the hand writing is not of the applicant. The respondents have flouted the order passed by the Court of Chief Commissioner for Person with Disabilities, the respondents did not complied the order passed by the court.
6. Submission of the learned counsel for the applicant is that in catena of the judgments given by the Hon'ble Supreme Court, wherein, the grave concerned has been expressed time and again where the Person with Disabilities are deprived of their rights and abilities. In the landmark judgment given by the Hon'ble Supreme Court in the case of Union of India Versus 5 National Federation of Blind & Others it has been held that "Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right to make a useful contribution to their own lives and to the lives of their families and community. The Union of India, the State Governments as well as the Union Territories have a categorical obligation under the Constitution of India and under various International treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. Even though the Act was enacted way back in 1995, the disabled people have failed to get required benefit until today". The entire action carried out by the Respondents is in violation of Article 14 of the Constitution of India and as such the same may be rectified.
7. Submission of the learned counsel for the respondents is that the applicant was amongst 31 candidates who had passed in written test. All those who have passed the written test were called for "certificate verification" by a screening committee. During "certificate verification", committee Members found the following deficiencies/discrepancies in the application form submitted by the applicant.
(i) She has submitted her application on 20.12.2006, where as per the Notification dated 14.10.2006, the last date for submitting the application form was fixed on 13.11.2006.
(ii) The application form submitted by the applicant was incomplete and in a different format.
(iii) The type of Physical handicap and percentage of handicap was not mentioned in the certificate submitted by the applicant.6
Thus, it was found that the applicant was not eligible for the said examination, though, she was called to appear for examination, inadvertently, as such screening committee rejected her candidature and the applicant was not empanelled in the list of selected candidates. The applicant has not produced any document showing the last date of submission of application form. In para 4.5 she has herself admitted that she has filed application on 20.12.2006.
8. Heard the rival submissions and verified the documents available in the original application.
9. The learned counsel for the applicant has relied upon the case of the Hon'ble Apex Court in the case of Vashist Narayan Kumar vs. The State of Bihar & ors. reported in 2024 Live Law (SC) 1. The relevant paragraph of the above judgment is reproduced below:-
"26. For the reasons stated above, we set aside the judgment of the Division Bench of the Patna High Court in LPA No. 1271 of 2019 dated 22.08.2022 and direct the respondent-State to treat the appellant as a candidate who has "passed", in the selection process held under the advertisement No. 1 of 2017 issued by the Central Selection Board (Constable Recruitment), Patna with the date of birth as 18.12.1997.
We further direct that if the appellant is otherwise not disqualified, the case of the appellant be considered and necessary appointment letter issued. We further direct that, in the event of there being no vacancy, appointment letter will still have to be issued on the special facts of this case. We make the said direction, in exercise of powers under Article 142 of the Constitution of India.
We further direct that the State will be at liberty in that event to adjust the vacancy in the next recruitment that they may resort to in the coming years. We notice from the written submissions of the State that 21,391 vacancies have been notified in Advertisement No.1 of 2023 and it is stated that the procedure for selection is ongoing.
We place the said statement on record. We direct compliance to be made of the aforesaid direction within a period of four weeks from today."
10. The Court of Chief Commissioner for Persons with Disabilities has directed the respondents to consider the candidature of Ms. Jhumjhum 7 Chatterjee (the applicant) for Group 'D' Post in the light of instructions of DOP&T vide O.M. No.36012/39/2014-Estt.(Res) dated 25.05.2015.
11. Respondents have submitted that they have considered and advised the applicant to apply as and when fresh notification from open market are notified for filling up of the vacancies for Persons with disabilities. The applicant has taken a stand that her application was not belated as the date mentioned in the application form is not in her handwriting. Even it is presumed that this application form was not filled in her own handwriting but application form is not found in the format of notification. There is column 9 of the format of application in which the following information is required to be filled in. 9(a) Type of disability (OH/HH) 9(b) Percentage of Disability 9(c) Handicapped certificate issued by and column (10) Marks of identification. In the admitted application form column prescribed in the form of application in the advertisement in question is missing and applicant has not explained the above discrepancy. The Apex Court order relied upon by the applicant is regarding the dispute in Date of Birth of the applicant and Date of Birth uploaded in the portal of the employer. In the application form uploaded online, the date of birth of applicant was shown as 08.12.1997 whereas date of Birth as per his school certificate was 18.12.1997. This discrepancy appears to be reasonable as the applicant might have taken the help of somebody to upload his application online and he might have committed that mistake while uploading the application.
12. In the present case, the issue is quite different and the case relied upon by the applicant is of no help to him. The Chief Commissioner for Persons with Disabilities has also not directed the respondents to appoint the applicant. It is safely presumed that he was also not convinced by the stand taken by the applicant that applicant has applied in time, the application form is in the given format and necessary vital information has been provided in the application form.
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13. In the light of the above discussions, we find that applicant has not been able to establish her relief claimed. There is no merit in this original application. We are of the considered opinion that original application is liable to be dismissed.
14. Accordingly, the original application is dismissed. No Costs. All pending MAs stand disposed of.
(Mohan Pyare) (Justice Rajiv Joshi) Member (Administrative) Member (Judicial) /Neelam/