Central Administrative Tribunal - Delhi
Rajender Singh vs M/O Railways on 30 March, 2022
1
O.A. No. 492/2015
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 492/2015
M.A. No. 3347/2016
Order reserved on: 22.03.2022
Order pronounced on: 30.03.2022
Hon'ble Mrs. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Shri Rajender Singh,
R/o =752, Sector -23,
Sonipat (Haryana).
...Applicant
(By Advocate: Mr. Yogesh Sharma)
Versus
Union of India & Ors.: Through
1. The Chairman,
Ministry of Railways,
Railway Board,
Rail Bhawan, Raisina Road,
New Delhi.
2. The Secretary,
Department of Empowerment of
Persons with Disabilities,
Ministry of Social Justice and
Empowerment, 5th Floor,
Block B-I, B-II & B-III,
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi - 03.
3. The Secretary,
UPSC, Dholpur House,
Shahjahan Road,
New Delhi - 110069.
...Respondents
(By Advocate: Mr. Ravinder Aggarwal for respondent No. 3,
None for respondent Nos. 1 &2)
2
O.A. No. 492/2015
ORDER
Hon'ble Mrs. Manjula Das, Chairman:
The applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) Call for the records of the case;
(ii) Set-aside the impugned order dated 16.4.2014 and direct Respondent No. 1 to offer him appointment to Indian Railway Service of Signal Engineers (IRSSE) against one of the reserved posts as per his merit and preference by issuing him appropriate appointment letter without harming his seniority and other benefits of appointment to the applicant's service record from the date of appointment of other applicants in the interest of justice;
(iii) That the respondents may kindly be directed to pay the interest @ 18% p.a. on the amount of salary counting from the date of appointment of other applicant which becomes due from the date of appointment of the similarly situated applicants of ESE-2012.
(iv) The exemplary cost may be imposed on the respondent for dereliction of duty in not providing the appointment to the applicant despite the duly selection.
(v) The impugned action of the respondent in not providing the appointment to the applicant on the post of Engineering services in the reserved quota PH may kindly be deprecated and set aside.
(vi) To pass any other order as this Hon'ble Tribunal may deem fit and proper."
2. Brief facts given in the OA are that the applicant appeared in the Engineering Services Examination (ESE), 3 O.A. No. 492/2015 2012, conducted by the Union Public Service Commission (UPSC), under Physically Handicapped (PH) category and had secured 88th rank in Electronics and Telecommunication Engineering. He held 4th position in the merit list prepared for 10 candidates with disabilities by UPSC against the posts reserved for the PH Category. It is submitted that on the basis of his merit position and preference of services, he was provisionally allotted Indian Railway Service of Signal Engineers (IRSSE) against one of the vacancies earmarked for Orthopedically Handicapped category of disability. It is pleaded that the disability of the applicant was assessed by the Competent Authority i.e. Civil Surgeon, Sonipat as 70% "BL-Both Legs affected but not arms" with remarks that 'likely to improve'. It is submitted that after conducting initial medical examination of the applicant in North Western Railway, the Competent Authority, vide order dated 28.10.2013, decided to conduct Review Medical Board. Accordingly, the Review Medical Board was constituted by the Ministry of Railways, vide impugned order dated 16.04.2014, which declared the applicant unfit for all services on account of weakness of both legs. In view of that, his candidature for allocation to a service against PH vacancy on the basis of ESE, 2012 was found not feasible.
4O.A. No. 492/2015
3. Mr. Yogesh Sharma, learned counsel for the applicant has submitted that the aforesaid impugned order is contrary to the notification of examination of ESE - 2012 as there was no such mentioning in the notification that only OA/OL were eligible; rather one of the handicapped categories mentioned as "Both legs affected but not arms" and as such, it could not be assumed that BL category persons are not eligible for the service.
4. In support of the claim of the applicant, Mr. Yogesh Sharma, learned counsel for the applicant has placed reliance upon the decision of this Tribunal in OA No. 353/2010 decided on 03.06.2011. In the said case, the applicant who had Orthopedic disability with weakness of lower limb was allotted the Indian Administrative Service (IAS) with appropriate rank against the vacancies with job requirements as can be performed by persons with such disabilities. He has also relied upon the decision of the Hon'ble Supreme Court in the case of Government of India vs. Ravi Prakash Gupta (2010) 7 SCC 626 to contend that in identical circumstances, the petitioner, who was 100% blind was allotted the IAS cadre.
5. Respondent No. 1 has filed their reply opposing the OA. It is stated that as per Section 32 of the persons with 5 O.A. No. 492/2015 disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the identification of post for PWDs is to be done by the Government. It is submitted that the vacancies in Indian Railway Service of Signal Engineers (IRSSE) are reserved for One Leg (OL) or One Arm (OA) subcategories of disabilities only. It is contended that the exam was conducted for different departments and the respondent No. 1, on receipt of the representation submitted by the applicant suitably advised vide speaking order dated 26.06.2014. The first Medical Board identified the applicant as Both Leg affected sub category of PH and recommended for vacancies specified for PH. It is submitted that as there was no vacancies reserved for such category of disability in Electronics and Telecommunications discipline, the Railway Medical Board was advised to review its decision. On review, the Railway Medical Board found that the applicant could not be recommended against any of the vacancy reserved for PH on the basis of vacancy statement of ESE, 2012. It is stated that the applicant cannot be considered for allocation to IRSSE, as the post in IRSSE reserved for OA or OL and not for BL with one arm.
6. Respondent No. 2 has also filed their reply in which it is stated that the applicant appeared in PH-1 Locomotor category in ESE, 2012 conducted by UPSC and was 6 O.A. No. 492/2015 provisionally allotted IRSSE after first medical examination. It is stated that the Ministry of Railways vide order dated 16.04.2014 declared the applicant unfit for all services on account of 'Both Leg affected but not arms'. It is further contended that the list of identified posts suitable for persons with disabilities was notified on 29.07.2013, and as per the list, the post for Electronic Engineer in Group - 'A' is identified for OL and HH category, and not for BL category. It is further submitted that the list of posts identified as suitable for persons with disabilities was notified on the basis of physical requirements, i.e., S-Sitting, ST-standing, BN-Bending, KC-Kneeling & Crouching, W-Walking-MF- Manipulation by fingers, SE-Seeing, PP-Pulling and Pushing, L-Lifting, C-Communication, RW-Reading and Writing.
7. Respondent No.3, in their counter affidavit, has submitted that the UPSC within its functions has been mandated to conduct examinations for appointments to the services of Union of India. It is thus submitted that the role of the Commission is restricted to recommendation of the finally qualified candidates to the Ministry of Railways. It is for the Ministry of Railways to allot departments/services to the PH candidates as per the functional requirement for various engineering services.
7O.A. No. 492/2015
8. We heard Mr. MS Reen, learned counsel for the applicant. However, since none was present on behalf of the respondents, we granted them liberty to file their written submissions within seven days from the date the matter was reserved for orders. However, even after expiry of seven days, no such written submissions have been filed by them. The matter is also an old one as it pertains to the year 2015. In the given circumstances, we are left with no option but to proceed with the matter on the basis of the pleadings available on record.
9. UPSC issued notification dated 10.03.2012 for conducting the ESE - 2012 to the services/posts under different categories for different Departments/Ministries, with the following functional classifications as mentioned in Para 9 of the notification:-
"Code Functions
BL 1. both legs affected but one arms.
BA 2. Both arms affected.
a. impaired reach
b. weakness of grip
BLA 3. both legs and both arms affected
OL 4. One leg affected
(R or L) a. impaired reach
b. Weakness of grip
c. ataxic
OA 5. One arm affected
(R or L) a. impaired reach
b. Weakness of grip
c. ataxic
8
O.A. No. 492/2015
BH 6. Stiff back and hips (cannot sit or stood) MW 7. Muscular weakness and limited physical endurance B. 8. The blind PB 9. Partially blind D 10. The deaf PD 11. Partially deaf
10. The applicant applied in the sub category 'BL' in PH category and secured 88th rank in the Electronics & Telecommunication Engineering Group and was placed at 4th position in the merit list prepared for PH candidates. He was provisionally allotted IRSSE as per his merit position in PH category.
11. The applicant was medically examined by Railway Hospital at Jaipur on 15.07.2013 and provisionally allotted a post in IRSSE by Indian Railway Board. However, when the sub category of the applicant, i.e., weakness in both legs, was not found in conformity with other functional classifications for which vacancies were reserved for various services/posts, a review was directed. It is noted that there was no vacancy reserved for BL category in Electronics and Telecommunication discipline, and the vacancies against sub categories in OA/OL were available. The respondent no.1, in all fairness, again advised the Medical Board to review its decision about the services for which applicant was suitable for the vacancy reserved for PH. Even, on 9 O.A. No. 492/2015 review, the Medical Board found him medically unfit on account of weakness of both lower limbs. The respondent no.1 has also shown that the posts in IRSSE against ESE - 2012 were reserved for OA and OL and not for BL category. Since there is no post reserved for BL category in the respondent no.1 department, the Tribunal cannot direct the respondent no.1 to reconsider the case of the applicant.
9. Keeping in view the facts that the applicant had qualified the ESE - 2012 and secured 88th rank and placed at 4th position in the merit list prepared for PH candidates, we deem it fit and proper to direct the respondent No.3 - UPSC to forward the case of the applicant for allocation to a service/post against PH vacancy on the basis of ESE-2012, to departments/Ministries other than Ministry of Railways on the basis of his rank in the merit list prepared for PH category and preference to services, within a period of two months from the date of receipt of a copy of this order.
10. With the above directions, the OA is disposed of. MA No. 3347/2016 also stands disposed of. There shall be no order as to costs.
(Mohd. Jamshed) (Manjula Das) Member (A) Chairman /Lg/as/