Central Administrative Tribunal - Delhi
Vikash Kumar vs M/O Health And Family Welfare on 31 May, 2023
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.2075/2018
Order reserved on : 25.04.2023
Pronounced on : 31.05.2023
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Vikash Kumar S/o Yogendra Rai,
Aged 27, Designation - Assistant Medical Officer,
Bigrahpur, P.O.-G.P.O.,
P.S. Jakkanpur, Patna,
Bihar-800001. ... Applicant
( By Mr. Rajan Mani, Advocate )
Versus
1. Union Public Service Commission
through its Secretary,
Dholpur House, Shahjahan Road,
New Delhi-110069.
2. Union of India through its Secretary,
Ministry of Social Justice and Empowerment,
Shastri Bhawan, New Delhi-110001.
3. Union of India through its Secretary,
Ministry of Health and Family Welfare,
Nirman Bhawan, New Delhi-110011.
4. Ram Manohar Lohia Hospital
through its Medical Superintendent,
Baba Kharak Singh Marg,
Connaught Place, New Delhi-110001. ... Respondents
( By Mr. R. V. Sinha with Mr. Amit Sinha and Mr. A. S. Singh, for
Respondent No.1; Mr. Vijendra Singh, for Respondents No.2 to 4,
Advocates )
OA-2075/2018
2
ORDER
Justice Ranjit More, Chairman :
The applicant claims to be a person with disability within the meaning of Section 2(s) of the Rights of Persons with Disabilities Act, 2016 (for short, the Act of 2016), having permanent disability of writer's cramp, also known as dysgraphia. Between March, 2015 and July, 2015, the applicant underwent medical treatment at JIPMER, Pudducherry; NIMHANS, Bangalore; and AIIMS, New Delhi, for condition of writer's cramp causing progressive difficulty in writing. However, there was no improvement in the condition of the applicant, despite the said treatment. On 21.03.2015, the applicant obtained a medical certificate from NIMHANS, Bangalore to the effect that he has writer's cramp and would require a scribe, i.e., a writer, or extra time, during examinations.
2. The Act of 2016 came into force with effect from 19.04.2017. It is the case of the applicant that the said Act specifies dysgraphia or writer's cramp as a disability within the meaning of Section 2(s).
3. On 26.04.2017, the respondent No.1, UPSC, issued a notification for the Combined Medical Services Examination (CMSE), 2017. The applicant applied for the same as a person with disability from OBC category. On 13.08.2017, the applicant appeared in the OA-2075/2018 3 CMSE, 2017 with the assistance of a scribe. On 15.12.2017, the applicant was called for and attended the interview/personality test. On 23.12.2017, the applicant was declared successful and recommended for selection by the respondent No.1, UPSC, in both physically handicapped (PH) and OBC categories, but his selection was kept provisional pending submission of disability certificate by the applicant.
4. The Ministry of Social Justice and Empowerment, respondent No.2, issued guidelines dated 14.01.2018 for assessment and certification of various disabilities specified in the Scheduled to the Act of 2016, including the specific disability of learning disability of dysgraphia. The medical board of Ram Manohar Lohia Hospital, respondent No.4, however, on 12.02.2018, rejected the applicant's application for disability certificate for his disability of writer's cramp/dysgraphia. The applicant then sent a letter to the respondent No.2, requesting that a clarification be issued to the medical board of the respondent No.4 Hospital. Since there has been no response from the respondent No.2, the applicant apprehended that without the disability certificate, after 22.06.2018 his candidature may be cancelled, and, therefore, approached this Tribunal by way of the present Original Application for following reliefs:
"(a) Quash the decision of the Respondent No.4 Ram Manohar Lohia Hospital dated 12.02.2018 that a OA-2075/2018 4 disability certificate cannot be issued to the Applicant herein.
(b) Direct the Respondent No.2 Ministry of Social Justice and Empowerment and Respondent No.3 Ministry of Health and Family Welfare to issue a clarification to Respondent No.4 Ram Manohar Lohia Hospital that the Applicant's disability of Writer's Cramp, being the same medical condition as Dysgraphia, should be evaluated according to the guidelines for certification of Dysgraphia, already issued by the Government of India on January 4, 2018.
(c) Direct the Respondent No.4 Ram Manohar Lohia Hospital to evaluate the disability of the Applicant herein according to the guidelines for certification of Dysgraphia, already issued by the Government of India on January 4, 2018, and to issue a disability certificate to the Applicant accordingly.
(d) Direct the Respondents No.1 and 3 to confirm the selection and extend an offer of appointment to the Applicant herein to the post of Medical Officer pursuant to his being declared meritorious in PH and OBC categories in Combined Medical Services Examination, 2017, on submission of the required disability certificate."
5. The OA was placed for orders on 06.07.2018 before a Division Bench of this Tribunal. After hearing both sides, the Tribunal passed the following order:
"Counter has not been filed as yet by the respondents. Learned counsel for the applicant presses for interim relief on the apprehension that the candidature of the applicant may be cancelled by the UPSC. However, we are not inclined to grant the interim order, at this stage. The same may be taken care of by observing that in the event the candidature being cancelled, the same shall not affect the right of the applicant, in case he succeeds in the OA.
OA-2075/2018 5 List the OA for hearing on 15.10.2018. In the meanwhile, the respondents shall file counter."
6. Mr. Rajan Mani, learned counsel for the applicant, would submit that the Act of 2016 came into force on 19.04.2017, and the respondent No.1 notified the CMSE, 2017 on 26.04.2017. In the CMSE online application form, the respondent No.1 provided for a scribe only to those certified to have 40% or more locomotor disability, but did not provide a scribe for persons with the neurological disability of writer's cramp. It is submitted that the inaction on the part of the respondent No.1 was counter to the decision of the Hon'ble Supreme Court in the applicant's own case Vikash Kumar v Union Public Service Commission [(2021) 5 SCC 370, and that the applicant had no option but to apply as a person with 40% or more locomotor disability in order to avail a scribe. The applicant thereafter informed the respondent No.3, Ministry of Health and Family Welfare, vide e- mail dated 27.04.2017, as also the respondent No.1, UPSC through letter dated 02.05.2017, that he had the neurological disability of writer's cramp and was in need of a scribe for CMSE, 2017, whereas there was no option for his said disability in the online application form.
7. Mr. Rajan Mani further submitted that the applicant has not sought the benefit of reservation available for persons with benchmark disabilities (PwBD) in CMSE, 2017. It is submitted that OA-2075/2018 6 the applicant was meritorious in the OBC category having obtained 326 marks, which were higher in the merit list than several other OBC candidates, and, therefore, in view of the judgment of the Apex Court in Vikash Kumar (supra), the applicant need not have a disability certificate specifying 40% or more of a specified disability for having availed the assistance of a scribe in CMSE, 2017.
8. Learned counsel for the applicant lastly, submitted that the relief prayed for in prayer clauses (a) to (c) in the present OA is not required by the applicant, in the light of the decision of the Hon'ble Supreme Court in Vikash Kumar (supra); however, in view of prayer (d), this Tribunal may mould the relief and pass appropriate orders. To substantiate his submissions, learned counsel for the applicant, besides Vikash Kumar (supra), relied upon the judgment of the Apex Court in Rameshwar v Jot Ram [(1976) 1 SCC 194].
9. Mr. R. V. Sinha, learned counsel appearing for the respondent No.1, UPSC, vehemently contested the OA. He submitted that CMSE, 2017 has been conducted strictly in accordance with the terms of the rules or examination/advertisement and instructions issued therein, and that there is no violation of any of the conditions prescribed therein. It is submitted that the OA is misconceived and not maintainable there being no challenge either to OA-2075/2018 7 the Act of 2016 or the provisions of the advertisement on any valid and legal ground. He further submitted that even a selectee does not have an indefeasible right of appointment and the competent authority has the power not to fill up the post or cancel the select list or the candidature of any candidate, of course, it should not be arbitrary or result of bias or mala fide.
10. Mr. Sinha would submit that the applicant failed to establish violation of any of the conditions of the rules of examination/advertisement and instructions issued thereunder, which are mandatory in nature, and that he seeks indulgence of this Tribunal as appellate court against the action/decision of the selection body/employer, which is not permissible in law. He further submitted that the applicant was aware that he was not in possession of the certificate as to his being under PH category, nor could he produce the same at the time of interview, despite the clear notification to the candidates in this regard, but applied under the PH category and has failed to produce the document despite being afforded opportunity of six months in terms of the examination notification. The learned counsel also submitted that it is settled principle of law that having participated in the selection process without demur and subsequently found to be unsuccessful, the OA-2075/2018 8 applicant cannot turn around and challenge the process. In support of his submissions, Mr. Sinha relied upon:
(1) Shankarsan Dash v Union of India [(1991) 3 SCC 47];
(2) Ekta Shakti Foundation v Government of NCT of Delhi [(2006) 10 SCC 337];
(3) Union of India v Mahendra Singh [2022 SCC OnLine SC 909];
11. Mr. Sinha, heavily relying upon the decisions of the Apex Court in - (1) Bharat Amratlal Kothari & others v Dosukhan Samadkhan Sindhi & ohers [(2010) 1 SCC 234]; (2) Manohar Lal v Ugrasen [(2010) 11 SCC 557]; (3) Kalyan Singh Chauhan v C. P. Joshi [(2011) 11 SCC 786]; (4) Ranjit Constructions v NHAI [2003 SCC OnLine Del 934]; and (5) Bachhaj Nahar v Nilima Mandal & another [(2008) 17 SCC 491], submitted that the relief the applicant is claiming now is not supported by the pleadings. He submitted that there is no prayer in respect of the relief the applicant is now pressing for, and on this count also the OA deserves to be dismissed.
12. Mr. Vijendra Singh, learned counsel for the respondent Nos. 2 to 4, adopted the arguments of Mr. R. V. Sinha, learned counsel for the respondent No.1.
13. Mr. Rajan Mani, learned counsel for the applicant, in rejoinder, relied upon the decision of the Hon'ble Supreme Court in Raj Kumar & others v Shakti Raj & others [(1997) 9 SCC 527], and OA-2075/2018 9 submitted that when there is an illegality in the selection procedure the principle of estoppel has no application. Mr. Mani contested the argument of Mr. Sinha that there are no pleadings in support of the relief claimed by the applicant, and invited our attention to the pleadings in paras 4(vii) and 5A. of the OA. He submitted that the relief claimed at prayer (d) can be moulded in the light of the decision of the Apex Court in Rameshwar (supra).
14. Having gone through the pleadings of the parties, submissions of the learned counsel, and the case law cited at Bar, we find merit in the Application.
15. The Hon'ble Supreme Court in the applicant's own case in Vikash Kumar (supra) pertaining to the Civil Services Examination (CSE), held that the applicant herein, is affected by writer's cramp and he is a person with disability within the meaning of Section 2(s) of the Act of 2016, and, therefore, he is entitled to a scribe for writing professional examinations. The Apex Court further held that certification of the disability to the extent of 40% or more (benchmark disability) is not a pre-condition for obtaining a scribe. We must note that under Article 141 of the Constitution of India, the judgment of the Apex Court in Vikash Kumar (supra) is a declaration of law, and would be applicable retrospectively from the date of coming into force of the Act of 2016, i.e., 19.04.2017.
OA-2075/2018 10
16. The Hon'ble Supreme Court in Vikash Kumar (supra) made a distinction between persons with disabilities under Section 2(s) and persons with benchmark disabilities under Section 2(r) of the Act of 2016. Observations of the Apex Court in paragraphs 9, 34, 35, 36, 37, 38, 39, 44, 57, 58, 59, 76, 90 and 91 are relevant. The same are reproduced hereunder:
"9. During the course of the proceedings, by an order dated 16-1-2020 [Vikash Kumar v. UPSC, 2020 SCC OnLine SC 1119], we directed All India Institute of Medical Sciences ("AIIMS") to constitute a medical board to evaluate the condition of the appellant and render its opinion on (i) whether he suffers from a benchmark disability within the meaning of Section 2(r) and Section 2(zc) of the 2016 RPwD Act; and (ii) whether he is a "person with disability" under Section 2(s) of the 2016 RPwD Act and the extent of the disability. AIIMS, by its report dated 10-2-2020, opined that the appellant suffers from a "chronic neurological condition" termed as bilateral writer's cramp. However, the report opines that while he does not suffer from a "benchmark disability", the appellant is a "person with disability" under the 2016 RPwD Act. The extent of the disability is assessed at 6%."
"34. It is in this backdrop that the Court must resolve the issue, bearing as it does on the rights of similarly situated candidates. The 2016 RPwD Act embodies two distinct concepts when it speaks of : (i) "persons with benchmark disabilities", and (ii) persons with disability. In defining a person with benchmark disability, Section 2(r) encompasses two categories : (i) a person with not less than 40 per cent of a specified disability, where the specified disability has not been defined in measurable terms, and (ii) a person with disability where the specified disability has been defined in measurable terms, as certified by the certifying authority. In other words, Section 2(r) encompasses both a situation where a specified disability has not been defined in measurable terms, in OA-2075/2018 11 which event it means a person with not less than 40 per cent of the specified disability but also where a specified disability has been defined in measurable terms. A certification by the certifying authority is contemplated in regard to whether the person concerned does in fact meet the specified norm as quantified.
35. The second concept which is embodied in Section 2(s) is that of a person with disability. Section 2(s) unlike Section 2(r) is not tagged either with the notion of a specified disability or a benchmark disability as defined in Section 2(r). Section 2(s) has been phrased by Parliament in broad terms so as to mean a person with a long term physical, mental, intellectual or sensory impairment which in interaction with various barriers hinders full and effective participation in society equally with others.
36. Section 2(s) is significant because it recognises firstly, the nature of the impairment, secondly, the interconnection of the impairment with various barriers and thirdly, the impact of the impairment in hindering full and effective participation on a footing of equality. On the first aspect, namely, the nature of the impairment, Section 2(s) requires that the impairment should be long term--physical, mental, intellectual or sensory. The statutory definition has evidently recognised that it is the nature of the impairment in its interaction with barriers that results in the full and effective participation of the person in society equally with others being hampered. Section 2(s) is, in other words, a far-reaching recognition by the legislature of disability as not only a function of a physical or mental impairment but of its interaction with barriers resulting in a social milieu which prevents the realisation of full, effective and equal participation in society.
37. Both as a matter of textual construction and bearing in mind the purpose and object underlying the term, it is necessary to emphasise that the definition in Section 2(s) cannot be constricted by the measurable quantifications tagged with the definition under Section 2(r).
38. The concept of a benchmark disability under Section 2(r) cannot be conflated with the notion of OA-2075/2018 12 disability under Section 2(s). The definition in Section 2(r) applies in the case of a specified disability. The expression "specified disability" is defined in Section 2(zc) to mean the disabilities as specified in the Schedule. The Schedule to the Act incorporates five specified disabilities:
1. Physical disabilities comprised of
(a) Locomotor disability including
(i) leprosy cured persons
(ii) cerebral palsy
(iii) dwarfism
(iv) muscular dystrophy
(v) acid attack victims;
(b) Visual impairment encompassing
(i) blindness
(ii) low vision
(c) Hearing impairment
(d) Speech and language disability
2. Intellectual disability including
(a) specific learning disabilities
(b) autism spectrum disorder
3. Mental behaviour
4. Disability caused due to
(a) Chronic neurological conditions, such as
(i) multiple sclerosis
(ii) Parkinson's disease
(b) Blood disorder
5. Multiple disabilities (more than one of the above specified disabilities). The Central Government has been empowered to notify any other category as a specified disability.
39. The concept of benchmark disabilities under the 2016 RPwD Act has specifically been adopted in relation with the provisions of Chapter VI and Chapter VII. Chapter VI contains special provisions for persons with benchmark disabilities. Among those provisions is OA-2075/2018 13 Section 31 (free education for children with benchmark disability), Section 32 (reservation in higher educational institutions), Section 33 (identification of posts for reservation), Section 34 (reservation), Section 36 (Special Employment Exchange) and Section 37 (Special Schemes and Development Programmes). Chapter VII contains special provisions for persons with benchmark disabilities in need of high support. Thus, the concept of benchmark disabilities has been adopted by the legislation bearing in mind specific provisions which are contained in the law for persons meeting this description."
"44. 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 R.M. Lodha, J's (as he then was) observation in Sunanda Bhandare Foundation v. Union of India [Sunanda Bhandare Foundation v. Union of India, (2014) 14 SCC 383 : (2015) 3 SCC (L&S) 470; Disabled Rights Group v. Union of India, (2018) 2 SCC 397 : (2018) 1 SCC (L&S) 391] , where he stated : (SCC p. 387, para 9) "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."
"57. When the Government in recognition of its affirmative duties and obligations under the 2016 RPwD Act makes provisions for facilitating a scribe during the course of the Civil Services Examination, it cannot be construed to confer a largesse. Nor does it by allowing a OA-2075/2018 14 scribe confer a privilege on a candidate. The provision for the facility of a scribe is in pursuance of the statutory mandate to ensure that persons with disabilities are able to live a life of equality and dignity based on respect in society for their bodily and mental integrity. There is a fundamental fallacy on the part of the UPSE/DoPT in proceeding on the basis that the facility of a scribe shall be made available only to persons with benchmark disabilities. This is occasioned by the failure of the MSJE to clarify their guidelines. The whole concept of a benchmark disability within the meaning of Section 2(r) is primarily in the context of special provisions including reservation that are embodied in Chapter VI of the 2016 RPwD Act. Conceivably, Parliament while mandating the reservation of posts in government establishments and of seats in institutions of higher learning was of the view that this entitlement should be recognised for persons with benchmark disabilities.
58. As a matter of legislative policy, these provisions in Chapter VI have been made applicable to those with benchmark disabilities where a higher threshold of disability is stipulated. Except in the specific statutory context where the norm of benchmark disability has been applied, it would be plainly contrary to both the text and intent of the enactment to deny the rights and entitlements which are recognised as inhering in persons with disabilities on the ground that they do not meet the threshold for a benchmark disability. A statutory concept which has been applied by Parliament in specific situations cannot be extended to others where the broader expression, "persons with disability", is used statutorily. The guidelines which have been framed on 29-8-2018 can by no means be regarded as being exhaustive of the situations in which a scribe can be availed of by persons other than those who suffer from benchmark disabilities. The MSJE does not in its counter-affidavit before this Court treat those guidelines as exhaustive of the circumstances in which a scribe can be provided for persons other than those having benchmark disabilities. This understanding of the MSJE is correct for the simple reason that the rights which emanate from provisions such as Section 3 extend to persons with disability as broadly defined by Section 2(s).
OA-2075/2018 15
59. We are, therefore, of the view that DoPT and UPSC have fundamentally erred in the construction which has been placed on the provisions of the 2016 RPwD Act. To confine the facility of a scribe only to those who have benchmark disabilities would be to deprive a class of persons of their statutorily recognised entitlements. To do so would be contrary to the plain terms as well as the object of the statute."
"76. The ASG referred to the difficulty caused to her by dint of having carpel tunnel syndrome as an example of the dangerous consequences that would flow from opening the door too widely when it comes to granting scribes. In the hearing, examples were also cited of individuals having a small, everyday problem and expecting a scribe on that basis. While valid, such comparisons may end up creating a false equivalence between those with a legitimate disability-based reasonable accommodation need and others with everyday "life problems". Therefore, it has to be ensured that we do not make light of, or trivialise, the needs of those whose disability may not meet the quantitative threshold of 40% but are nonetheless disabling enough to merit the grant of the reasonable accommodation of a scribe and extra time. As the CRPD Committee notes, it is wrong to expect a person with disability to be "disabled enough" to claim the accommodations necessitated by their disability. [ CRPD Committee, GC 6, para 73[b].] Such an approach would not be in consonance with the progressive outlook of the 2016 RPwD Act."
"90. Insofar as the case of the appellant is concerned, his condition has been repeatedly affirmed by several medical authorities including National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore and AIIMS. The AIIMS report which was pursuant to the order [Vikash Kumar v. UPSC, 2020 SCC OnLine SC 1119] of this Court is clear in opining that the appellant has a specified disability inasmuch as he has a chronic neurological condition. This condition forms part of Entry IV of the Schedule to the 2016 RPwD Act. The writer's cramp has been found successively to be a condition which the appellant has, making it difficult for him to write a conventional examination. To deny the facility of a OA-2075/2018 16 scribe in a situation such as the present would negate the valuable rights and entitlements which are recognised by the 2016 RPwD Act.
91. We, therefore, hold and declare that the appellant would be entitled to the facility of a scribe for appearing at the Civil Services Examination and any other competitive selection conducted under the authority of the Government."
17. The above observations of the Apex Court in the applicant's own case, make it unequivocally clear that -
(1) the persons with disabilities under Section 2(s) and persons with benchmark disabilities under Section 2(r) of the Act of 2016 are two separate and distinct categories; (2) the persons with disabilities having benchmark disabilities are those who have disability certificates showing at least 40% of a disability specified in the Schedule to the Act of 2016, and they are entitled for reservation in employment and higher education; (3) the persons with disabilities, however, are entitled to reasonable accommodation as defined under Section 2(y) of the Act of 2016;
(4) the provision of scribe for writing examination falls within the purview of reasonable accommodation as defined under Section 2(y), and, therefore, benchmark OA-2075/2018 17 disability, as established by a certificate of not less than 40% disability, is not a pre-condition to obtain the assistance of a scribe; and (5) the applicant's certificate dated 21.03.2015 obtained by him from NIMHANS, Bangalore, was held to be sufficient to prove that he is a person with disability within the meaning of Section 2(s) of the Act of 2016.
18. It is the specific case of the applicant that in terms of the Act of 2016, as interpreted by the Hon'ble Supreme Court in Vikash Kumar (supra), it was the duty of the respondents to provide a scribe to the persons with disabilities as defined under Section 2(s) in the light of Section 2(y) of the Act of 2016. However, in the CMSE online application form, the UPSC provided for scribe only to those certified to have 40% or more locomotor disabilities, but did not provide for scribe for persons with the neurological disability of writer's cramp or dysgraphia. Mr. Sinha, learned counsel for the respondent No.1, UPSC, also did not dispute that scribe was provided only to the persons certified to have 40% or more locomotor disabilities in the online application form for CMSE, 2017. In this factual background, the applicant was constrained to apply as a person with 40% or more disability in order to avail a scribe. The applicant in this regard OA-2075/2018 18 immediately sent e-mail to the respondent Nos.1 and 3 dated 27.04.2017 and 02.05.2017, which read as follows:
"From: [email protected] Dated: 27 Apr 2017 3:55 pm Subject: Regarding combined medical service 2017 To: [email protected] Cc:
Sir, my name is Vikash Kumar.
Yesterday upsc has released "combined medical service" form. But they have not mentioned any column for neurological disorder as a disability in the application form. But recently a "Disability bill" has been passed by government in which neurological disorder has been included as disability.
I am suffering from writer's cramp, which is a type of neurological disorder. I have already spoken to upsc, they have suggested me to talk to you regarding this.
As soon as possible, kindly suggest me, how would I fill up the form.
Vikash Kumar"
"Date: 02/05/2017 To The Joint secretary Examination, UPSC Subject: Non-availability of chronic neurological disorder as an option in the physical handicap category in Combined Medical Service Examination 2017 (CMSE-2017).
Sir, My name is Vikash Kumar. I am suffering from a chronic neurological disorder, called Writer's Cramp. I am not able to write with my both hands. I have OA-2075/2018 19 applied for CMS Examination 2017. But my neurological disorder problem is not as an option in the physical disorder category in the application form of CMS Examination 2017.
So, I have applied in the Locomotor disability category after the consultation with UPSC and Ministry of Health & Family Welfare.
Recently, Government of India has passed "the Rights of Persons with Disability 2016 Act", under which this neurological disorder has been included under the disability category.
Therefore, I request you to consider me in physically disable category and provide me scribe for writing this examination.
Vikash Kumar Registration ID of CMS 2017 - 11724865849"
19. If the applicant's submission along with the e- mail/communication reproduced above is considered, then it is clear that the applicant intended to apply in the CMSE, 2017 from OBC category and not from PH category. He, however, was compelled to apply from PH category, inasmuch as the respondent No.1 provided for scribe only to those candidates having 40% or more locomotor disabilities, and did not provide for scribe to persons with the neurological disability of writer's cramp.
20. Admittedly, the applicant attempted the CMSE, 2017 which was held on 13.08.2017 with the assistance of a scribe and he became successful. Thereafter he was called for and attended the interview/personality test on 15.12.2017. The respondent No.1, OA-2075/2018 20 thereafter declared the result of CMSE, 2017 on 23.12.2017, in which the applicant was declared successful in both PH and OBC categories, and recommended for selection. There is also no dispute that the applicant obtained 326 marks in the examination, which was higher in the merit list than several other OBC candidates.
21. From the above facts coupled with the decision of the Apex Court in Vikash Kumar (supra), it necessarily follows that the applicant need not possess the disability certificate specifying 40% or more locomotor disability for having availed the assistance of scribe for CMSE, 2017. The medical certificate dated 21.03.2015 relied upon by the applicant and issued by NIMHANS, Bangalore is sufficient to establish his entitlement to a scribe.
22. Now, we will proceed to consider the various submissions of Mr. Sinha to contest this Application. Insofar as the first submission of Mr. Sinha that the applicant is estopped from claiming that he applied as a person with disability and not as a person with benchmark disability, is concerned, same is not legally sustainable. We find that despite the mandate of the Act of 2016, as interpreted by the Apex Court in Vikash Kumar (supra), no scribe was provided to the persons with the disability mentioned hereinabove in the CMSE, 2017. The same is counter to the object sought to be achieved by the Act of 2016. The applicant asserted his OA-2075/2018 21 entitlement for scribe by writing e-mail/communication to the respondent Nos.1 and 3. However, the said e-mail/communication were not responded to. We have already referred to the circumstances under which the applicant was constrained to apply under PH category, though he, as a matter of fact, never intended to apply under the said category. In Raj Kumar & others (supra), the Apex Court held that when there is an illegality in the selection process, the principle of estoppel has no application. The Apex Court in para 16 held as follows:
"16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 Notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider OA-2075/2018 22 that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law."
23. As earlier referred, in the CMSE, 2017 results published on 23.12.2017, though the applicant was declared successful, his candidature was kept provisional by the respondent No.1, and he was required to submit a disability certificate showing 40% or more locomotor disability. It is a matter of record that the applicant thereafter with bona fide intention approached the competent authority at Ram Manohar Lohia Hospital, respondent No.4, on 12.02.2018, but was refused a disability certificate, which is evident from the document annexed at page 23 of the OA. The applicant in these circumstances was constrained to challenge the said denial in the present OA, and consequently prayed for a direction to the respondent No.4 Hospital to issue disability certificate to him. During the pendency of the present OA, on 11.02.2021, the decision of the Hon'ble Supreme Court in Vikash Kumar (supra) came, wherein it was held that the certificate of disability to the extent of 40% or more is not a pre-condition for obtaining a scribe. It is settled position that the declaration of law by the Apex Court is always retrospective and it would apply from 19.04.2017, the date on which the Act of 2016 came into force. In view of this, we are of the opinion that the applicant need not submit a disability certificate to UPSC as he was successful in OBC category, and is not seeking relaxation or OA-2075/2018 23 reservation in persons with benchmark disabilities category. We also agree with the submission of the applicant that the reliefs as prayed for in clauses (a) to (c) in the instant OA are not required in the light of the decision of the Apex Court in Vikash Kumar (supra).
24. The decisions of the Hon'ble Supreme Court in Bharat Amratlal Kothari (supra); Manohar Lal (supra); Kalyan Singh Chauhan (supra); Ranjit Constructions (supra); and Bachhaj Nahar (supra), deal with the pleadings of the parties vis-a-vis grant of relief which is not even prayed for. There is no dispute about the proposition laid down by the Apex Court. These judgments, however, have no application to the facts and circumstances of the present case, in the light of the applicant's pleadings in para 4(vii) and Ground 5(A), which are reproduced hereunder for ready reference:
"(vii) The Applicant was desirous of appearing for the said examination with the help of a scribe. In the online application form for CMS 2017, the Applicant therefore declared himself to be a person with disability.
It is pertinent to note that in the CMS 2017, there was no mention of Specific Learning Disabilities including Dysgraphia. This was clearly an oversight of the Respondents, and may have happened because the Rights of Persons with Disabilities Act, 2016, which specified Dysgraphia as a disability, came into force only a week earlier on 19th April 2017. The Applicant immediately on 27.04.2017 sent an email to the Respondent No.3, being the competent authority which had issued the Combined Medical Services Examination, 2017 Rules, informing them of this difficulty. However, the Applicant did not receive any OA-2075/2018 24 response from the said Ministry. The true copy of the e- mail sent by the Applicant to the Respondent No.3 is annexed herewith as "Annexure A6"."
"A. Because the Applicant is a person with disability within the meaning of Section 2(s) of the Right of Persons with Disabilities Act, 2016, having the permanent disability of Writer's Cramp, also known as Dysgraphia, which is a specified disability according to the said Act. In Clause 2(a) of the Schedule to the said Act, Dysgraphia has been mentioned as a Specific Learning Disability."
25. In Shankarsan Dash (supra) The Apex Court held that a selectee does not have an indefeasible right of appointment and the competent authority has got power not to fill up the post or to cancel the candidature of the candidate. In Ekta Shakti Foundation (supra), the Apex Court held that in the absence of violation of any condition of rules of examination, the indulgence of the Tribunal as an appellate court against the action/decision of the selection body is not permissible. In Mahendra Singh (supra) the Hon'ble Supreme Court held that a thing which is required to be done in a particular manner has to be done in that manner only. Respectfully, however, these decisions of the Hon'ble Supreme Court have no application in the peculiar facts and circumstances of the present case.
26. This takes us to consider the relief which we can grant to the applicant in the light of the facts and circumstances narrated hereinabove. Under prayer clause (d), reproduced hereinabove, the applicant has sought direction to respondent Nos.1 and 3 to confirm OA-2075/2018 25 the selection and extend an offer of appointment to him to the post of Medical Officer pursuant to his being declared meritorious in PH and OBC categories in the CMSE, 2017, on submission of the required disability certificate. Since the applicant is a meritorious candidate in the OBC category having obtained 326 marks, which were higher in the merit list than several other OBC category candidates, and when we accepted the submission that the applicant's intention was to apply from OBC category and not from PH category, the relief claimed by him is required to be moulded. In this regard, we are fortified by the decision of the Apex Court in Rameshwar (supra). The relevant observations of the Apex court contained in para 9 read as follows:
"9. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson [Patterson v. State of Alabama, (1934) 294 US 600, 607] illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where OA-2075/2018 26 there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri [1940 FCR 84 : AIR 1941 FC 5] falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs -- cannot deny rights -- to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact Venkateswarlu, read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (See Chokalingam Chetty [54 MLJ 88 (PC)] ). The law stated in Ramji Lal v. State of Punjab [AIR 1966 Punj 374 : ILR (1966) 2 Punj 125] is sound:
"Courts, do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment (see Steward v. North Metropolitan Tramways Company [(1885) 16 QBD 178] ) and a fresh suit by him would be so barred by limitation."
One may as well add that while taking cautious judicial cognisance of "post-natal" events, even for the limited OA-2075/2018 27 and exceptional purposes explained earlier, no court will countenance a party altering, by his own manipulation, a change in situation and plead for relief on the altered basis."
27. In the light of the above discussion, we allow the present OA, and direct the respondent No.1, UPSC, to remove the provisional status of the applicant and declare his result in CMSE, 2017 in the OBC category. The respondent No.3 thereafter shall take appropriate action in the matter. There shall be no order as to costs.
( Mohd. Jamshed ) ( Justice Ranjit More ) Member (A) Chairman /as/