Delhi High Court - Orders
Rathod Anil vs Union Of India on 23 August, 2021
Author: Rajiv Shakdher
Bench: Rajiv Shakdher, Talwant Singh
$~22 (2021)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8771/2021, CM Nos.27317-20/2020
RATHOD ANIL ..... Petitioner
Through: Mr. Rajshekhar Rao, Senior Advocate
with Mr. Sddhant Buxy and Ms.
Mansi Sood, Advocates.
versus
UNION OF INDIA ..... Respondent
Through: Mr. Jagjit Singh, Senior Counsel for
Railways.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE TALWANT SINGH
ORDER
% 23.08.2021 [Court hearing convened via video-conferencing on account of COVID-19] CM Nos. 27318-19/2021
1. Allowed, subject to just exceptions.
CM No. 27320/20202. This is an application filed on behalf of the petitioner to take additional documents on record.
2.1. The prayer made in the application is allowed, subject to just exceptions.
2.2. Liberty is also given to the respondent to file documents, if necessary, to counter, the effect and import of the documents, which are taken on record.
3. The application is disposed of in the above terms. W.P.(C) 8771/2021 & CM No.27317/2021[Application filed on behalf of the petitioner seeking interim relief] W.P.(C) 8771/2021 Page 1 of 4 Signature Not Verified Digitally Signed By:HARIOM Signing Date:06.09.2021 13:27:32
4. The candidature of the petitioner, qua the post of mechanical engineer in the Indian Railway Service, was rejected, on the ground that, he suffers from disability which has impacted both lower limbs by a factor of 100. 4.1. Mr. Jagjit Singh, who appears on advance notice on behalf of the respondent [which is, in effect, Railways], says that, if the disability was in one limb, the petitioner would have been considered for appointment to the subject post.
4.2. On the other hand, Mr. Rajshekhar Rao, learned senior counsel, who appears for the petitioner, says that, the latest disability certificate issued to the petitioner, which is dated 08.01.2019, shows that, he suffers from Post- Polio Residual Paralysis (PPRP) in lower part of the left leg. For this purpose, he has drawn out attention, inter alia, to pages 301 to 304 of the case file.
4.3. Mr. Rao has, fairly, conceded though that, in 2009, a disability certificate was issued to the petitioner, wherein it was indicated, albeit, erroneously, that the petitioner had PPRP in both lower limbs, by a factor of 50-55%. We may note that, this document is dated 25.05.2009 and is appended on page 196 of the case file.
4.4. According to Mr. Rao, the aforementioned disability certificate, which is dated 08.01.2019, was obtained, after Union Public Services Commission asked the petitioner to obtain a fresh disability certificate in the prescribed format.
4.5. Furthermore, Mr. Rao says that, although, the respondent subjected the petitioner to a fresh medical examination ostensibly to make an independent assessment of the petitioner's disability, this exercise was not mandated by law, since the petitioner had already obtained disability W.P.(C) 8771/2021 Page 2 of 4 Signature Not Verified Digitally Signed By:HARIOM Signing Date:06.09.2021 13:27:32 certificate. According to Mr. Rao, the Medical Board (MB) as well as the Appellate Medical Board (AMB) constituted by the respondent wrongly concluded that the petitioner had suffered disability in both his lower limbs to extent of 100%.
4.6 It is also contended by Mr. Rao that, even if one were to assume, for a moment, that the certificates/reports obtained by the respondent from the MB as well as the AMB are valid, what has to be examined by the Court is:
whether the petitioner, has the necessary functional mobility, required for performance of the duties aligned to the subject post?
4.7 In support of this plea, Mr. Rao has, in particular, drawn our attention to the contents of paragraph 4 of Annexure-II, which is appended to the report of the petitioner, issued by the AMB constituted by the respondent' [see page 311 of the case file]. A perusal of paragraph 4 would show that, the AMB, while observing that the disability factor of the petitioner was 100 [see paragraph 3 of the said Annexure], goes on to say that the petitioner can fulfil all the physical requirements for discharge of his duties, except that which involves kneeling and crouching (K.C.).
5. Having regard to the aforesaid, we would like to know from the respondent as to: what is the work profile/nature of the job in respect of which the petitioner had made his application? In particular, we would like to know, whether K.C. would form an important part of the work profile, concerning the job, which the petitioner has applied for.
5.1. We may also add that, this query has been put to Mr. Singh, as the physical requirements against the subject post do not include K.C. In support of this plea, Mr. Rao has relied upon page 158 of the case file, whereby the physical requirements are given against the subject post, notified in the W.P.(C) 8771/2021 Page 3 of 4 Signature Not Verified Digitally Signed By:HARIOM Signing Date:06.09.2021 13:27:32 relevant recruitment rules.
5.2. Mr. Singh will revert with instructions on the next date of hearing.
6. List the matter on 08.11.2021.
7. In case, any vacancy is available at present qua the subject post, the same will not be filled up, without prior leave of the Court.
RAJIV SHAKDHER, J TALWANT SINGH, J AUGUST 23, 2021/mr Click here to check corrigendum, if any W.P.(C) 8771/2021 Page 4 of 4 Signature Not Verified Digitally Signed By:HARIOM Signing Date:06.09.2021 13:27:32