Central Administrative Tribunal - Delhi
Mohit Garg vs Union Of India And Ors on 8 August, 2024
1
OA No.2931/23
Item No.69 (Ct-4)
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.2931/2023
This the 8th Day of August, 2024
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member(A)
Mohit Garg, Age 27 Years
S/o Yogesh Garg
R/o 181g, Keshav Nagar Colony, Ward No.08
Sheopur, Madhya Pradesh-476337.
...Applicant
(By Advocate: Mr. Yadunandan Bansal)
Versus
1. Union of India and Ors.
Through the Secretary,
Ministry of Social Justice and Welfare
Shastri Bhawan, New Delhi.
2. Department of Personnel and Training
Through its Secretary
Ministry of Personnel, Public Grievance and
Pensions, North Block, New Delhi-110001.
3. Union Public Service Commission
Through its Chairman, Dholpur House
Shahjahan Road, New Delhi.
4. All India Medical Sciences
Ansari Nagar, New Delhi-110029.
5. Vardhman Mahavir Medical College &
Safdarjung Hospital Ministry of Health & FW
Government of India
New Delhi-110029.
...Respondents
(By Advocates: Mr. R.V. Sinha with Mr. A.S. Singh for
R-3, Ms. Sangeeta Rani)
2
OA No.2931/23
Item No.69 (Ct-4)
O R D E R(Oral)
Hon'ble Mrs. Harvinder Kaur Oberoi, Member(J) By way of the present Original Application the applicant has sought the following reliefs:-
"A) direct the respondent authority(ies) to consider the candidature of applicant on remaining 5 seats under the category of PwBD-
III/PH3 (VH)/Hearing Impaired in examination notice no.05/2022-CSP dated 02.02.2022 (UPSC 2022-23);
(ii) direct the respondent authority(ies) to keep one seat vacant under the examination notice no.05/2022-CSP dated 02.02.2022 (UPSC 2022-
23) till the final outcome of this present application under the category of PwBD-III/PH3 in examination notice no.05/2022-CSP dated 02.02.2022 (UPSC-2022-23)"
2. The facts in brief are that the applicant is an IIT Kanpur graduate. He was an aspirant for the Civil Services and had appeared in the selection process conducted by the UPSC for Civil Service Examination, 2022 under the disabled category. In total 861 vacancies in the Civil Services 2022 were advertised. Out of which, 12 were reserved for Deaf and hard of hearing. The applicant contends that he falls in this category and he ought to have been declared as a selected candidate since only seven candidates have been selected in the category of hearing handicapped 3 OA No.2931/23 Item No.69 (Ct-4) (HH). As such five posts remained vacant. The applicant has secured 613 marks and the last selected candidate in the hearing impaired category is Sl. No.796 who secured 635 marks. Since five seats are still vacant, the applicant submits that he ought to have been considered and selected for the same.
Per respondents the only reason for non selection is the consolidated report of the Safdarjung Hospital, Delhi dated 08.02.2023 and All India Institute of Medical Sciences Hospital, Delhi dated 14.02.2023 wherein the applicant on medical examination has been declared 'Unfit', since he is suffering from Conductive hearing loss only and, therefore, does not qualify for reservation under hearing loss category.
3. Applicant has challenged his medical examination since the hearing loss, suffered by the applicant, has not been quantified by prescribing a percentage to it, which, according to the applicant, is in violation of the Rights of Persons with Disabilities Act, 2016.
4. Learned counsel appearing on behalf of the applicant, laid stress on this congenital defect 4 OA No.2931/23 Item No.69 (Ct-4) suffered by the applicant since his birth and attempted to explain the same as under:-
"The applicant has been suffering from congenital disease i.e. Servere microtia with atresia of the right external auditory canal and a bony plate suggests tympanic ring dysplasia. Opacified middle ear with suspicion of dysplastic ossicles with fusion to the bony plate. These diseases can't be treated and if, such operation is conducted then there is a possibility hearing loss of second/remaining ear. We are ready and willing to be conducted and bear expenses of such operation if, panel doctor gives an undertaking regarding 100% success."
5. The challenge to the action of the respondents is with respect to the denial of the fact that the applicant is a person with Bench mark disability under the Disability Act. Learned counsel for the applicant has relied upon the certificates issued from time to time by the District Hospital Sheopur, MP certifying the applicant to be suffering with 40% disability/hearing loss. The said certificates were issued on 20.11.2007, 03.04.2013 and again on 05.05.2015. After the competitive examination, during the selection process conducted by UPSC, a list of short listed candidates was published on 21.12.2022, and applicant stood at Sl. No.227 of the said list. Applicant appeared before the interview board on 07.02.2023. Thereafter, he was directed to 5 OA No.2931/23 Item No.69 (Ct-4) present himself for examination by the medical professionals of the Vardhaman Mahavir Medical College/Safdarjung Hospital on 08.02.2023 and AIIMS on 14.02.2023. On 05.04.2023, a consolidated report of the medical examination of the applicant was uploaded and he had been declared unsuccessful on the basis of the consolidated certificate issued by the two hospitals. The applicant's contention is that he has not been properly examined, rather the medical report has been prepared merely on his physical appearance.
6. On issuance of notice, a short counter reply affidavit has been filed on behalf of respondent No.3- USPC with respect to the submission made by the applicant that out of 12 PwBD-III candidates only seven candidates were selected. Learned counsel for respondent No.3 relying upon the affidavit submitted that the Commission had recommended 12 PwBD-III candidates against the 12 vacancies/seats and, therefore, no vacancy is available with them. UPSC has recommended 12 candidates, whether they join or not or alternatively they are rejected by DOPT for 6 OA No.2931/23 Item No.69 (Ct-4) some reason, would not mean that the vacancy is open for recommendation of any other candidate.
7. Further, it has been stated that the applicant has secured a total of 613 marks. The cut off for the persons with Bench mark disability was 632 and, therefore, he has not been finally recommended by the Commission. UPSC also stated that as per the Rules of Examination, the finding of the Medical Board cannot be interfered with. The competent medical board has not found the applicant fit under the handicapped category for the reasons stated by it. Hence the OA deserves to be dismissed.
8. We have heard the parties and considered the documents available on record. The applicant has sought consideration of his candidature against the remaining five seats under the persons with bench mark hearing impaired quota.
9. Undisputed fact is that the applicant has secured 613 marks which are less than the marks obtained by the last selected candidate under the PwBD quota. 9.1 Further, the medical professionals have examined and reported him to be suffering from 7 OA No.2931/23 Item No.69 (Ct-4) Conductive hearing loss. Although the Medical professionals have examined and reported him to be disabled but they have not found him to be a person with bench mark disability or have not quantified the hearing loss with the percentage. Based on this medical opinion, the applicant has not been considered to be a person suffering with disability. Disability of the applicant is purely within the domain of the experts of the field. This Tribunal is not an expert in this area and as such we refrain from interfering or commenting on the medical report submitted by the experts. Moreover, report of the competent medical board has not been challenged. 9.2 The certification obtained by the applicant from other doctors or teams of doctors cannot be accepted for the sole reason that, that was not on the basis of any reference by the DoP&T/UPSC. The Tribunal cannot substitute the opinion of others for that of experts.
9.3 The reservation is in favour of the Hearing handicapped candidates and, it is only a candidate who has real problem, as certified by the competent 8 OA No.2931/23 Item No.69 (Ct-4) authority, and not the one who does not meet the stipulated levels of disability, that can avail the benefit.
10. Accordingly, the OA is dismissed. All pending MA, if any, also stand disposed of. No costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi) Member(A) Member(J) /vb/