Central Administrative Tribunal - Delhi
Naresh Deexit vs Staff Selection Commission (Ssc) on 16 May, 2024
1
O.A. No. 1681/2022
Item No. 96 (C-4)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1681/2022
Reserved on: 01.05.2024
Pronounced on: 16.05.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Naresh Deexit, S/o Sh. Devi Charan Sharma,
R/o VPO Baad, Mathura, Uttar Pradesh - 281006,
CHSLE-2019 Roll No. 2201695596.
....Applicant
(By Advocate: Mr. Tarun Gupta)
VERSUS
1. Ministry of Personnel, Public Grievance & Pensions,
Department of Personal & Training, Government of India
Through its Secretary, North Block, New Delhi-110001.
2. Staff Selection Commission, Through its Regional Director,
Block No.12, CGO Complex, Lodhi Road, New Delhi-110003.
3. Department of Empowerment of Persons with Disabilities,
Ministry of Social Justice and empowerment, Government of
India, through its Secretary, Paryavaran Bhawan, B-II Block,
5th Floor, Lodhi Rd, CGO Complex, New Delhi-110003.
4. Department of Posts, Ministry of Communication,
Government of India, through its Secretary, Sanchar Bhawan,
20 Ashoka Road, New Delhi-110003.
.... Respondents
(By Advocate: Mr. R. S. Rana)
2
O.A. No. 1681/2022
Item No. 96 (C-4)
ORDER
Hon'ble Mr. Manish Garg, Member (J):
The brief facts of the case as stated by the learned counsel for the applicant are that the applicant is a physically handicapped person, who is suffering from "Mytonic Dystrophy" (covered under "Muscular Weakness), which is mentioned as one of the benchmark physical disabilities under the Rights of Persons with Disabilities Act, 2016.
2. In pursuance of a notification dated 03.12.2019 issued by the Staff Selection Commission (SSC) inviting applications for "Combined Higher Secondary (10+2) Level Examination, 2019 for recruitment to the posts of LDC/Junior Secretariat Assistant, Postal Assistant/Sorting Assistant and Data Entry Operators for various Ministries/Department/Offices of the Government of India, the applicant applied for the post of Postal Assistant/Sorting Assistant under the PwD category. A total number of 55 posts were reserved for Orthopedically Handicapped (OH) candidates, out of which 36 posts were reserved for postal Assistant/Sorting Assistant.
3O.A. No. 1681/2022 Item No. 96 (C-4)
3. The examination was of three tier, i.e., Computer Based Examination (Tier-I), Descriptive Paper (Tier-II) and Skill Test (Tier-III). The applicant secured 145. 35618 and 58 marks in Tier-I and Tier-II of the examination, respectively. He was exempted from Tier-III of the examination in terms of Clause 13.9.7.7 of the notification dated 03.12.2019 issued by the SSC.
4. The Department of Empowerment of Persons with Disabilities, M/o Social Justice and Empowerment, Government of India issued a notification dated 04.01.2021 whereby Muscular Weakness (MW) has been subsequently removed from the list of benchmark physical disabilities eligible for reservation against the posts of Postal Assistant/Sorting Assistant.
5. Learned counsel for the applicant contends that it is nowhere mentioned in the notification dated 04.01.2021 that the same would be applicable retrospectively. He further submits that the SSC has issued a letter dated 11.03.2022 to all the Regional Directors/Dy. Regional Directors, SSC, informing that SSC has decided that suitability of posts under CHSLE-2019 for various disabilities and categories under the Right of Persons 4 O.A. No. 1681/2022 Item No. 96 (C-4) with Disabilities, Act, 2016 may be determined in the light of notification dated 04.01.2021. He further states that in a recent advertisement dated 25.10.2021 issued by the office of Chief Postmaster General, Maharashtra Circle, Mumbai, Department of Posts, India for the posts of Postal Assistant/Sorting Assistant, Muscular Weakness (MW) has been recognized as benchmark physical disabilities for reservation under the PwD category and therefore, while candidates who have been directly recruited by the Postal Department are getting the benefit of reservation under the PwD Category for Muscular Weakness (MW), the candidates recruited through SSC are being deprived of the said benefit. Learned counsel for the applicant argues that the said action of the respondents is patently illegal, arbitrary and contrary to the law as the suitability of posts under the Combined Higher Secondary (10+2) Level Examination, 2019 for various disabilities and categories under the Right of Persons with Disabilities, 2016 is to be decided on the basis of Government policy prevailing on the date of issuance of the said notification and any subsequent change in the Government Policy can be made applicable only prospectively.
5O.A. No. 1681/2022 Item No. 96 (C-4)
6. Though the applicant had obtained more marks than the cut off marks and was also called for document verification, however, based on the aforesaid notification dated 04.01.2021 and 11.03.2022, he was not allowed to fill his preference for the post in question, learned counsel for the applicant argues. Being aggrieved by the same, he made a representation to the Chairman, SSC on 27.05.2022, but to no avail.
7. Agitating his grievance in the present OA filed under Section - 19 of the Administrative Tribunals Act, 1985, he prays for the following reliefs:
"(a) direct the Respondents to select/recommend the name of the Applicant for appointment to the post of Postal Assistant/Sorting Assistant on the basis of marks obtained by him in CHSLE-2019, after giving him the benefit of reservation under the "Pwd" category as mentioned in Clause 4 of notification dated 3.12.2019;
(b) hold and declare that the notification dated 4.1.2021 issued by Department of Empowerment of Persons with Disabilities, M/O Social Justice and empowerment, Government of India is only applicable prospectively and not retrospectively;
(c) strike down letter dated 11.3.2022 issued by Respondent No. 1& 2,
(d) call for records of the proceedings pertaining to the present case from the Respondents;
(e) any other relief which this Hon'ble Tribunal thinks just and appropriate in the facts and circumstances of the case; and
(f) cost of the present application may be awarded to the applicant"6 O.A. No. 1681/2022
Item No. 96 (C-4)
8. Respondents have filed a counter affidavit vehemently opposing the OA. It is stated that the instant OA is devoid of any merit and deserves out right dismissal. It is submitted by the respondents that the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment issued a notification dated 04.01.2021 and Note 6 of the said notification mentions that this list will be principal list in respect of the posts identified suitable for persons with benchmark disabilities and as entries for the posts covered in CHSL Examination i.e. Junior Secretariat Assistant, Lower Division Clerk, Data Entry Operator, Postal Assistant, etc. were available in the notification dated 04.01.2021, therefore, the SSC decided to implement the notification dated 04.01.2021 during the document verification and the same was also confirmed from the user department vide SSC's letter dated 14.02.2022. The counter affidavit filed by the respondents also mentions the permissible/suitable categories of disabilities for the post of Postal Assistant/Sorting Assistant, the same reads as under:
"(a) LV, (b) D, HH, (c) OL, LC, DW, AAV, (d) ASD (M)I, (e) MD involving (a) to (d).7 O.A. No. 1681/2022
Item No. 96 (C-4)
9. Drawing strength from the averments made in the counter affidavit, learned counsel for the respondents submits that admittedly Muscular Weakness (MW) is not a permissible/suitable category of disability for the post of Postal Assistant as per the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment notification dated 04.01.2021 and accordingly, the case of the applicant cannot be considered.
10. The rejoinder filed by the applicant is basically a reiteration of the facts of the case wherein he again highlights that the notification dated 04.01.2021should have been applicable prospectively and not retrospectively and that it is a well settled law that rules of game, meaning thereby, that the criteria for selection cannot be altered in the middle or after the process of selection has commenced.
Analysis:
11. Having heard the learned counsel for the respective parties and perused the records, we find that the Combined Higher Secondary Level Examination, 2019 was held as per the following schedule:
"Dates for submission of online applications: 03-12-2019 to 10-01-2020 8 O.A. No. 1681/2022 Item No. 96 (C-4) Last date for receipt of application: 10-01-2020 (23:59) Last date for making online fee payment: 12-01-2020 (23:59) Last date for generation of offline Challan: 12-01-2020 (23:59) Last date for payment through Challan (during working hours of Bank): 14-01-2020 Date of Computer Based Examination (Tier-I): 16-03- 2020 to 27-03-2020 Date of Tier-II Examination (Descriptive Paper): 28-06- 2020"
12. It is not in dispute that the advertisement itself in terms of the recruitment rules and instructions stipulated for reservation as under:
"3. Reservation:
3.1 Reservation for the Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), Economically Weaker Sections (EWS), Ex-servicemen (ESM) and Persons with Disabilities (PwD) etc. categories is available as per extant Govt. Orders.
3.2 The Commission makes selection of candidates in pursuant to the vacancies reported by the concerned User Departments for various posts. The Commission does not have any role in deciding the number of vacancies of any User Department. Implementation of reservation policy, maintaining reservation roster and earmarking of vacancies for different categories comes under the domain of the User Departments."
13. The following was the permissible disability for PwD candidates for the post of Postal Assistant:
"4.1.2 Postal Assistant/ Sorting Assistant: One leg affected (OL), One arm affected (OA), One arm and one leg affected (OAL), Both legs affected but not arms (BL), Muscular weakness and limited physical endurance (MW), Cerebral Palsy, Leprosy cured, Dwarfism, Acid Attack victims, Blind (B), Low vision (LV), Hard of Hearing (HH), Specific learning disability. Multiple disabilities from amongst disabilities mentioned above."9 O.A. No. 1681/2022
Item No. 96 (C-4)
14. It has also been highlighted as per the clause 4.5 of the advertisement:
"4.5 As the "Rights of Persons with Disabilities Act, 2016" has come into force with effect from 19-04-2017 and new categories of disabilities such as Autism, Dwarfism, Acid Attack victims, Muscular Dystrophy, Intellectual Disability, Specific Learning Disability, Mental Illness and Multiple Disabilities, etc have been included. Therefore, the candidates with such disabilities may also apply giving details of their disabilities in the online Application Form. However, their selection will be subject to identification of posts suitable for these categories as well as reporting of vacancies by the Indenting Departments. Candidates suffering from various disabilities as identified vide DoP&T OM No:
36035/02/2017-Estt (Res) dated 15-01-2018 (para-2.2) may select following PwD categories in the online Registration/ Application Form.
S. No. Type of Disability Category of disability to be
selected in
Registration/Application
form
(a) Blindness and low VH
vision
(b) Deaf and hard of HH
hearing
(c) Locomotor disability OH
including cerebral
palsy, leprosy
cured, dwarfism,
acid attack victims
and muscular
dystrophy.
(d) Autism, intellectual Others
disability, specific
learning disability
and mental illness
(e) Multiple disabilities
from amongst
persons under
clauses (a) to (d)
including deaf-
blindness
10
O.A. No. 1681/2022
Item No. 96 (C-4)
15. It is not in dispute that on the closing date of the application form, the applicant falls within the parameters and the post identified suitable for the persons like the applicant with benchmark disabilities.
The applicant made an appropriate application under the PwD category along with medical certificates. The result of the examination was declared on 10.05.2022 by the respondents wherein the applicant name did not figure and pursuant to which the applicant made a representation dated 27.05.2022.
16. It is the case of the applicant that denial of appointment to the post in question to him by the respondents under the benchmark disability is based on the notification dated 04.01.2021, which was never in place at the time of closing date of the advertisement or when the initial result of the examination was declared. It is only at a later stage, by virtue of the aforesaid notification as per the Note -6 of the same that certain disabilities have been excluded from the list of benchmark disabilities. The respondents have applied the said notification retrospectively, which ought to have been applied prospectively in the factual matrix of the present case. It is also noticeable that in terms of Section 11 O.A. No. 1681/2022 Item No. 96 (C-4)
- 32 of the repealed Act on the date of advertisement, the post of Postal Assistant was also identified as a benchmark disability as akin to the applicant herein. Accordingly, an Expert Committee was constituted on 19.11.2015 to identify the posts suitable for persons with benchmark disabilities. The decision of the Expert Committee to identify a new category of disability or exclusion of a disability category by itself does not give a right to the respondents to deny the benefit of a benchmark disability, which was prevalent at the time of closing date of application form.
17. It is also pertinent to note that neither there was any corrigendum, nor stipulation that in the event, there is a change in the category of benchmark disability related with the post of Postal Assistant by the notification dated 04.01.2021, the same could be applied retrospectively. We also draw the ratio laid down in the judgment of Hon'ble Apex Court in Civil Appeal No. 6785 OF 2023 titled Mohamed Ibrahim vs. The Chairman & Managing Director & Ors. dated 16.10.2023 wherein the Hon'ble Apex Court observed as under:
"20. The twin conditions of falling within defined categories, and also a threshold condition of a minimum percentage, of such disabilities, in fact are a barrier. The facts of this case demonstrate that the appellant is fit, in all senses of the term, 12 O.A. No. 1681/2022 Item No. 96 (C-4) to discharge the duties attached to the post he applied and was selected for. Yet, he is denied the position, for being "disabled"
as he is colour blind. At the same time, he does not fit the category of PWD under the lexicon of the universe contained within the Act. These challenges traditional understandings of what constitute "disabilities". The court has to, therefore, travel beyond the provisions of the Act and discern a principle which can be rationally applied.
21. In Jeeja Ghosh v. Union of India23 this court observed:
"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 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 antidiscrimination 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."
22. Ravinder Kumar Dhariwal v. Union of India24 highlighted on the right to equality and underlined the two aspects: formal equality and substantive equality. It stated that substantive equality aims at producing equality of outcomes, and in the context of the case, observed that the "principle of reasonable accommodation is one of the means for achieving substantive equality, pursuant to which disabled individuals must be reasonably accommodated based on their individual capacities." The court recollected Vikash Kumar v. Union Public Service Commission25, which held as follows "The principle of reasonable accommodation acknowledges that if disability" should be remedied and opportunities are "to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion. Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individual's dignity and worth is respected."
23. It was also noted that provisions of Chapters VII and VIII of the Act are in furtherance of the principle of reasonable accommodation which is acomponent of the guarantee of equality. This has been recognised by a line of precedent. This court, in multiple cases has held that the principle of reasonable differentiation, recognising the different needs of persons with disabilities is a facet of the principle of equality. 13 O.A. No. 1681/2022 Item No. 96 (C-4)
24. The significant impact of Vikash Kumar (supra) is that the case dealt with a person with a chronic neurological condition resulting in Writer's Cramp, experiencing extreme difficulty in writing. He was denied a scribe for the civil services exam by the UPSC, because he did not come within the definition of person with benchmark disability (40% or more of a specified disability). This court, rejected this stand, and held him to be a person with disability. It was also stated that the provision of scribe to him fell within the scope of reasonable accommodation. The Court said:
"... the accommodation which the law mandates is 'reasonable' because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence..."
25. The appellant is, for all purposes, treated as a person with disability, but does not fall within the categories defined in the Act, nor does he possess the requisite benchmark eligibility condition. The objective material on the record shows that the colour vision impairment is mild. Yet, TANGEDCO's concerns cannot be characterised as unreasonable. However, TANGEDCO is under an obligation to work under the framework of "reasonable accommodation", which is defined by Section 2 (y) as follows:
"(y) "reasonable accommodation" means necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others;.."
26. Reasonable accommodation thus, is "appropriate modification and adjustments" that should be taken by the employer, in the present case, without that duty being imposed with "disproportionate or undue burden" TANGEDCO- the employer expresses its willingness to accommodate the appellant. Yet the position it offers, is highly inadequate: that it is belated, is beside the point. In the considered view of this court, the post offered, i.e., Junior Assistant, is inconsistent with the appellant's qualification which cannot be offered to him; the offer is a mere palliative gesture, which he justifiably rejected.
27. TANGEDCO, during the hearing was unable to show how it employing the appellant in one of the many departments or units [as AE (Material Management) or AE (CAUP) in the office of the Executive Engineer or even as AE (General) in the office of the SE or as AE (General)] is not possible. The hierarchy of posts further indicates that the primary inspection responsibilities of technical nature are upon Junior Engineers, who oversee the work of Technical Assistants, and that of Linemen. It is evident that the AE works at a position of 14 O.A. No. 1681/2022 Item No. 96 (C-4) overseeing supervisory work of Junior Engineers. This could involve, at the field stage, satisfaction after visual inspection. Sufficient safeguards (whenever the appellant's services in that regard are absolutely essential, and he is deployed on some occasions) can be taken, to ensure that he is accompanied by those without any colour vision deficiencies or impairments. TANGEDCO's units and organizational structure, in this court's opinion, have sufficient possibility for accommodating the appellant in a unit or department which may not require utilization of skills that involve intense engagement with colour. As stated earlier, these are AE (General) in SE office, AE (CAUP) in EE office; AE (Material Management). The TANGEDCO, is under an obligation to ensure that the appellant is therefore, suitably accommodated in any such general department or establishment.
28. In view of the foregoing discussion, the impugned judgment cannot stand; it is set aside. TANGEDCO, the respondent corporation, is directed to appoint and continue the appellant in its service, as AE (Electrical) at the appropriate stage of the grade of pay, from the date he was terminated fromservice, or his appointment was cancelled, and accommodate him in a suitable department, where he can be given appropriate responsibilities. The appellant shall also be entitled to 50% of full arrears of salary, and all allowances, and his service shall be reckoned from the original date of appointment, (which was later cancelled), with full continuity. The appeal is allowed in these terms, without order on costs."
18. In view of the aforesaid, we allow the OA and quash the impugned order dated11.03.2022 and direct the respondents to issue offer of appointment to the applicant to the postal Assistant/Sorting Assistant on the basis of marks obtained by him Combined Higher Secondary Level Examination - 2019 after giving him the benefit of reservation under the PwD category as mentioned in clause 4 of the notification dated 03.12.2019, subject to fulfilling other eligibility conditions. The applicant shall also be entitled for 15 O.A. No. 1681/2022 Item No. 96 (C-4) consequential benefits on notional basis with effect from the date of the offer of appointment and on actual basis from the date of assumption of charge. The above exercise be completed within a period of two months from the date of receipt of the order.
19. Pending MAs, if any, also stands disposed of. No costs.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
/as/