Gujarat High Court
Jayanti Lal Devasi S/O Chelaram Devasi vs Divisional Railway Manager (E) on 21 April, 2022
Author: N.V.Anjaria
Bench: N.V.Anjaria, Samir J. Dave
C/SCA/9561/2021 CAV JUDGMENT DATED: 21/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9561 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
And
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order made
thereunder ?
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JAYANTI LAL DEVASI S/O CHELARAM DEVASI
Versus
DIVISIONAL RAILWAY MANAGER (E)
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Appearance:
MR UTKARSH J DAVE(10620) for the Petitioner(s) No. 1
RAHUL SHARMA(8276) for the Petitioner(s) No. 1
MR SUDHIR M MEHTA(2058) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date :21/04/2022
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr.Rahul Sharma for the petitioner and learned advocate Mr.Sudhir Mehta for the respondent.
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2. By filing this petition, the petitioner has challenged order dated 28.6.2021 passed by Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application No.169 of 2021. The Tribunal thereby upheld the decision of the respondent authorities in not accepting the application of the petitioner for allowing the petitioner to participate in the limited departmental competitive examination for the purpose of promotional post.
2.1 Before the Tribunal, the petitioner- applicant had prayed for setting aside the order dated 25.3.2021 whereby the petitioner was declared ineligible for appearing in the selection examination. Further direction was prayed for against the respondent to prepare a fresh list of eligible candidates by including the name of the petitioner. In the alternative, it was prayed to declare the petitioner as eligible to appear at the Limited Departmental Competitive Examination (LDCE) and to promote the petitioner to the post of Junior Clerk upon his qualifying at the examination. Yet another prayer was made to declare the eligibility conditions in the notification dated 19.1.2021 to be arbitrary and unreasonable.
3. By the communication dated 25.3.2021, the competent authority of the respondent- Railways declared the list of eligible candidates for the purpose of promotion on the post of Senior Clerk in the pay band of Rs.5,200 - 20,000 plus Grade pay Rs.1,900/- (Level 2) in LDCE quota. The said limited department examinations for which the petitioner declared ineligible was for the purpose of promotion against 16-2.3% vacancies in the rank for the Junior Clerk for those employees who did not have the promotional avenues.
3.1 The petitioner joined services with effect from 4.9.2013 as Watchman under the respondent- Railway authorities. The petitioner belongs in the unreserved category and has completed Page 2 of 13 Downloaded on : Fri Apr 22 21:29:58 IST 2022 C/SCA/9561/2021 CAV JUDGMENT DATED: 21/04/2022 more than seven years of service. The petitioner has been suffering from permanent physical disability of the lower limbs which is greater than 40% - being the benchmark disability as defined in the Rights of Persons with Disabilities Act, 2016. Certificate dated 18.8.2001 has been issued by Medical and Health Department of the government of Rajasthan certifying the physical disablement of the petitioner.
3.2 Pursuant to the notification dated 19.1.2021 whereby the respondent invited application for recruitment to 16 - 2.3% LDCE quota from Group 'D' personnel, for whom there was no avenues of promotion was available, the petitioner submitted his application. The petitioner completed two years of service on 19.1.2021. He th was eligible to apply for the examination. The petitioner was 12 standard pass with minimum 50% marks. He applied through proper channel.
3.3 It was stated that 56 vacancies were to be filled in, out of which 49 vacancies was for unreserved category, 5 for Schedule Caste category and 2 was meant for Schedule Tribe category. The reservation for the candidates having physical disability was not provided for.
3.4 It was the case of the petitioner that even though he was qualified, his application came to be rejected by the respondent authorities treating him to be ineligible to appear at the limited departmental competitive examination. The examination was scheduled to be conducted on 16.4.2021, on account of pandemic situation it was postponed and the fresh dates are yet to be announced.
3.5 The case put forth before the Central Administrative Tribunal by the petitioner was that he was physically challenged with Page 3 of 13 Downloaded on : Fri Apr 22 21:29:58 IST 2022 C/SCA/9561/2021 CAV JUDGMENT DATED: 21/04/2022 greater than 40% disability and that the petitioner should have been allowed to participate in the LDCE for the post of Junior Clerk. It was the case that in view of the provisions of Rights of Persons with Disability Act, 2016 (RPwD Act, 2016) read with Rights of Persons with Disability Rules, 2017, (RPwD Rules, 2016) the respondent- employer under statutory obligation should keep the post earmarked for filing them up from amongst the disabled persons. It is not in dispute that the said position has also been accepted by railway board as per its decision dated 28.6.1979. Not allowing the petitioner to participate in the said examination amounted to denial of promotional opportunity to the disabled petitioner, it was the case pleaded.
3.6 Justification which the respondents offered to rebut the case of the petitioner was that the alternative channel of promotion was available to the petitioner. The petitioner was Watchman/Chowkidar working in the department which had its own promotional ladder. It was the say of the employer that the channel LDCE was to be held for those employees who did not have the alternative promotional channel. For the purpose of alternative avenue of promotion on the post of Postman to Technician in the electrical department, a trade test was prescribed. The trade test was major component for practical or field tests. The duties of the technician in the electrical department were essentially field duties which included climbing of electric poles, travelling along the railway lines etc. 3.7 The petitioner due to his physical incapacity could not undergo the test, even otherwise the post of technician could be said to be unsafe job for the petitioner to perform looking to his nature of disability. The petitioner contended that the stand of the respondent regarding alternative avenues of promotion was in conflict with the provisions of RPwD Act, 2016, which ensured Page 4 of 13 Downloaded on : Fri Apr 22 21:29:58 IST 2022 C/SCA/9561/2021 CAV JUDGMENT DATED: 21/04/2022 equal opportunities and inclusive policies to be extended to the persons with disabilities.
4. Learned advocate for the petitioner submitted that the Tribunal failed to appreciate that as the petitioner has been admittedly suffering from physical disability which is benchmark disability within the purview of the provisions of the RPwD Act, 2016, equal opportunity for promotion in terms of the provisions of the Act was required to be extended to him. It was submitted that alternative promotional channel available amounted to ignoring the mandatory provisions of the RPwD Act, 2016. It was submitted that given the disability that the petitioner has been suffering, he was not capable to participate in the practical tests which included climbing up on the electric poles and other such field activities. The trade test comprising such practical tests has to be completely ruled out for the differently abled petitioner. The rule of alternative channel therefore could not be made applicable to the petitioner, it was submitted.
4.1 It was further submitted that the Tribunal failed to took into account para 511 of the Indian Railway Medical Manual which provided for general physical examination of candidates and para 511(7) which contemplated that posts like Office Clerks should be earmarked for being filled up by disabled persons only. It was submitted that as required under the provisions of RPwD Act, 2016, what is contemplated is to provide reasonable accommodation and appropriate barrier free and conducive environment to differently abled employees.
4.2 The case of the petitioner was contested by the respondents. The Divisional Personnel Officer, Western Railway in its affidavit-in- reply stated that it was not open for the petitioner to question the inclusive of trade test in the avenue of promotion, without Page 5 of 13 Downloaded on : Fri Apr 22 21:29:58 IST 2022 C/SCA/9561/2021 CAV JUDGMENT DATED: 21/04/2022 clearance of which the question of promoting the petitioner could arise. By placing reliance on the decision of the Supreme Court in P.U.Joshi & Other Vs. The Accountant General, Ahmedabad and Others [(2003) 2 SCC 632], it was submitted that conditions of service, nomenclature of posts including the avenues of promotions and the criteria to be applied for promotions, are the matters of policy domain within the exclusive jurisdiction of the employer.
4.3 It was submitted that the chart of promotion indicated for the post of Watchman in the electrical department, the promotion to the next higher post could be available only upon a candidate successfully undergoing the process including passing of trade test. It was submitted that the petitioner cannot be said to have been provided equal opportunity of promotion since the persons with disability could be promoted under 50% promotional quota.
4.4 Reliance was placed on paragraph No.187 of the Railway Establishment Manual, Vol. 1 which provided for promotion to the skilled categories for those semi-skilled artisans and basic tradesmen, are eligible for promotion to skilled grades if they pass the prescribed trade test against 50% quota set apart for promotion as provided in para 159. As per the para 159, the post of Technician Grade III in level 2 in various engineering departments of Diesel Electric Loco / Electric Multiple Unit (EMU) will be filled on the post of 50% by promotion of staff in the lower grade as per the prescribed procedure. It was submitted that post of Watchman was considered to be in the category of semi-skilled worker.
4.5 It was sought to be contended that as per the Master Circular No.43 of Railways, promotion could be granted as per the seniority cum passing of the trade test. It was submitted that apprehension of the petitioner about the climbing poles and field activities was Page 6 of 13 Downloaded on : Fri Apr 22 21:29:58 IST 2022 C/SCA/9561/2021 CAV JUDGMENT DATED: 21/04/2022 not based on ground reality. It was further contended that the petitioner cannot rescue himself from appearing in the trade test even if he fails in the first trade test he would get chance to appear in the subsequent trade test, it was submitted. It was submitted that the case of the petitioner about the breach of provisions of RPwD Act, 2016, was not well placed.
5. The RPwD Act, 2016 was enacted by the parliament for the purpose of empowerment of persons with disabilities to respect their inherent dignity, to accord them non-discriminatory treatment and to avail full and effective participation and inclusion in the society. Section 2(r) of the Act defines 'persons with benchmark disability' to mean a person with not less than 40% of specific disability where specified disability has not been defined in measurable terms. It includes a person with disability where specified disability has been defined in measurable terms as certified by the certifying authority. The Act applies to 'establishment' which is defined in Section 2(i) to include a government establishment and private establishment. The definition is also prescribed for the 'reasonable accommodation', in Section 2(y) to mean necessary and appropriate modification and adjustment to ensure to the persons with disabilities, the enjoyment or exercise of rights equally with others.
5.1 Section 3 of the Act envisages for the persons with disability - the equality and non-discrimination. It provides that appropriate government shall ensure that the persons with disabilities enjoy right to equality etc. with others. The appropriate government, as enjoined under Section 3(2), to take steps to utilize the capacity of persons with disabilities by providing appropriate environment. Under Section 3(3), no person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission has proportionate means of achieving legitimate Page 7 of 13 Downloaded on : Fri Apr 22 21:29:58 IST 2022 C/SCA/9561/2021 CAV JUDGMENT DATED: 21/04/2022 aim. As per the Sub section (5) of Section 3, the appropriate government is required to take steps to ensure reasonable accommodation for persons with disability.
5.1.1 Section 20 in Chapter (iv) of the RPwD Act, 2016 deals with the non-discrimination in the employment. The section reads as under.
"20. (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section.
(2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.
(3) No promotion shall be denied to a person merely on the ground of disability.
(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:
Provided that...
Provided further that...
(5) The appropriate Government may frame
policies..."
5.2 In Vikash Kumar Vs. Union Public Service Commission
and Others [2021 SCC Online SC 84], the Supreme Court highlighted the object of the RPwD Act, 2016.
"The fundamental postulate upon which the RpwD Act 2016 is based is the principle of equality and Page 8 of 13 Downloaded on : Fri Apr 22 21:29:58 IST 2022 C/SCA/9561/2021 CAV JUDGMENT DATED: 21/04/2022 non-discrimination. Section 3 casts an affirmative obligation on the government to ensure that persons with disabilities enjoy (i), the right to equality; (ii) a life with dignity; and (iii) respect for their integrity equally with others. Section 3 is an affirmative declaration or the intent of the legislature that the fundamental postulate of equality and non-discrimination is made available to persons with disabilities without constraining it with the notion of as benchmark disability. Section 3 is a statutory recognition of the constitutional rights embodied in Articles 14, 19 and 21 among other provisions of Part III of the Constitution. By recognizing a statutory right and entitlement on the part of persons who are disabled, Section 3 seeks to implement and facilitate the fulfillment of the constitutional rights of persons with disabilities."
(Para 44) 5.2.1 It was further observed, "There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability. This Court in its judgment in Jeeja Ghosh v. Union of India, noted that a key component of equality is the principle of reasonable differentiation and specific measures must be undertaken, recognizing the different needs of persons, with disabilities, to pave the way for substantive equality. Justice A K Sikri stated in the above judgement:
"40. In international human rights law, equality is founded upon two complementary principles : non- discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal Page 9 of 13 Downloaded on : Fri Apr 22 21:29:58 IST 2022 C/SCA/9561/2021 CAV JUDGMENT DATED: 21/04/2022 participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation."
(para 45) 5.2.2 The principle of reasonable accommodation was explained to mean a positive obligation to provide additional support to the persons with disabilities.
"46. The principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. The concept of reasonable accommodation is developed in section (H) below. For the present, suffice it to say that, for a person with disability, the constitutionally guaranteed fundamental rights to equality, the six freedoms and the right to life under Article 21 will ring hollow if they are not given this additional support that helps make these rights real and meaningful for them.
Reasonable accommodation is the instrumentality - are an obligation as a society - to enable the disabled to enjoy the constitutional guarantee of equality and non- discrimination. In this context, it would be apposite to remember Justice R M Lodha's (as he then was) observation in Justice Sunanda Bhandare Foundation v. Union of India, where he stated:
"9...In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic..."
(para 46) Page 10 of 13 Downloaded on : Fri Apr 22 21:29:58 IST 2022 C/SCA/9561/2021 CAV JUDGMENT DATED: 21/04/2022 5.2.3 The Apex Court stated, "The principle of reasonable accommodation has found a more expansive manifestation in the RPwD Act 2016. Section 3 of the RPwD Act 2016 goes beyond a formal guarantee of non-discrimination by casting affirmative duties and obligations on government to protect the rights recognized in Section 3 by taking steps to utilize the capacity of persons with disabilities "by providing appropriate environment". Among the obligations which are cast on the government is the duty to take necessary steps to ensure reasonable accommodation for persons with disabilities. The concept of reasonable accommodation in Section 2(y) incorporates making "necessary and appropriate modification and adjustments" so long as they do not impose a disproportionate or undue burden in a particular case to ensure to persons with disability the enjoyment or exercise of rights equally with others." Equality, non-discrimination and dignity are the essence of the protective ambit of the RPwD Act 2016."
(para 54)
6. The provisions of the RPwD Act, 2016 and in particular Section 20 thereof emphasize that no government establishment shall discriminate against any person with disability in any matter relating to employment. The law requires to provide reasonable accommodation to the employees with disability. As observed by the Supreme Court in Vikash Kumar (supra) the idea of reasonable accommodation postulates a positive obligation on the employer to be accorded to the persons with disability in the matters of employment. The concept of reasonable accommodation in employment envisaged under the Act is a wider and inclusive concept. It encompasses within it any and all matters relating to employment. The right to be considered for promotion is undoubtedly a matter attached to and relating to the employment. The person with disability is entitled to the protective umbrella of the provisions of RPwD Act, 2016 and the promotional rights have to be extended ensuring for him a pedestal of effective opportunity Page 11 of 13 Downloaded on : Fri Apr 22 21:29:58 IST 2022 C/SCA/9561/2021 CAV JUDGMENT DATED: 21/04/2022 to earn promotion despite his disability.
6.1 The petitioner is a differently abled person. He suffers from disability of more than 40% which is a benchmark disability as statutorily defined under the Act. Right to be considered for promotion to the next higher post for the petitioner arises, and would shape in light of the provisions of the RPwD Act, 2016 and the salutary principles underlying the provisions so as to treat equally the persons with disability with others. Equal treatment to this classes of persons would mean taking affirmative measures to enable them to compete with others- the normal class of employees- in equal terms. The equality in the context of persons with disability is a contextual equality to the applied accordingly. The impediment of disability has to be removed for such class of persons.
6.2 The trade test prescribed by the employer in the regular channel of promotion from the post of Watchman to Junior Clerk admittedly involves undergoing of practical test and field exercise. The person like petitioner suffering from benchmark disability would be unable to undertake the same. The consideration of the right of promotion for the petitioner could not have been withheld with the stance namely that regular channel of promotion is available to him wherein he will have to pass the trade test and that without passing the said test, the petitioner's case would not be considered for the promotion. The request of the petitioner to allow him to appear in the limited departmental competitive examination was indeed needed to be considered in light of the above facts of disability of the petitioner and the provisions of RPwD Act, 2016 to be applied to such class of persons.
6.3 The denial of right of the petitioner to appear in the departmental examination would amount to negating the principle Page 12 of 13 Downloaded on : Fri Apr 22 21:29:58 IST 2022 C/SCA/9561/2021 CAV JUDGMENT DATED: 21/04/2022 of extending reasonable accommodation to the disabled persons in the employment, in addition that it would mean denying equal opportunity. Promotion to a person with benchmark disability as the petitioner is, has to be conducive and barrier free, unhindered by the disability he suffers from. When the petitioner is denied appearance in the limited departmental competitive examination it violates petitioner's rights to consider for promotion and depriving him of 'reasonable accommodation' in the employment.
6.4 As a result of above discussion, the order dated 28.6.2021 of the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad dismissing the Original Application No.169 of the 2021 is set aside. Also set aside is the communication dated 25.3.2021 of the respondent treating the petitioner ineligible for appearing at the selection examination.
6.5 The respondents are directed to include the name of the petitioner in the list of eligible candidates and the petitioner shall be allowed to appear in the limited departmental competitive examination, by conducting it specially for the petitioner, if needed for the purpose of promotion to the rank of Junior Clerk. The petitioner shall be promoted to the said post, if the petitioner clears the said examination.
7. The petition is allowed. Rule is made absolute.
Direct service is permitted.
(N.V.ANJARIA, J) (SAMIR J. DAVE, J) Manshi Page 13 of 13 Downloaded on : Fri Apr 22 21:29:58 IST 2022