Central Administrative Tribunal - Delhi
Sumit vs Govt. Of Nctd on 17 May, 2024
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Item No. 74/ C-4
O.A. No.3188/2018
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No.3188/2018
Reserved on 03.05.2024
Pronounced on 17.05.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Sumit
S/o Sh. Balram
R/o H. No. 306, Auchandi, Delhi - 110039
Aged about 25 years
(Group 'C')
(Candidate for the post of Grade-IV/DASS)
Applicant
(By Advocate: Mr. Ajesh Luthra)
Versus
1. Govt. of NCT of Delhi Through its Chief Secretary, 5th
Floor, Delhi Sachivalaya, New Delhi
2. Delhi Subordinate Services Selection Board (DSSSB)
Through its Chairman, FC-18, Karkardooma Institutional
Area, Delhi 110092
3. The Secretary, Services Department (GNCT of Delhi) 7th
Level, 'B' Wing, Delhi Secretariat, I.P. Estate, New Delhi
...Respondents
(By Advocate: Mr. Atul Kumar)
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Item No. 74/ C-4
O.A. No.3188/2018
ORDER (ORAL)
By Hon'ble Mr. Manish Garg, Member (J) By virtue of the present OA, the applicant is seeking the following relief:
"(a) Direct the respondents to grant exemption to the applicant towards the skill/typewriting test and
(b) Further consider and appoint the applicant to the post of DASS Grade IV Post Code 61/15 in accordance with his merit position and the written examination and
(c) Accord all consequential benefits
(d) Award costs of the proceedings; and
(e) Pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case."
2. The main contention of the applicant is that the Subsequently, the applicant was directed to appear in the skill test, i.e., the typewriting test, to be conducted on 03/01/2018. The respondents issued an admit card to the applicant for his participation in the skill test. A copy of the admit card towards the skill test is annexed herewith as Annexure A/5. During the skill test, the applicant, having constant pain due to the disability, approached the examiner seeking exemption from the skill test but was told to take his examination, and the issue would be sorted out later. 2.1. Subsequently, the respondents issued a notice No. 665 dated 24/05/2018 (Annexure A/6). The applicant was not in the list of candidates qualifying in the skill test. Other candidates who had qualified the typewriting skill test were required to upload e-dossiers. The applicant is not on the list of qualifying candidates. From the said result, the applicant came to know that 16 other PH candidates have been exempted from appearing in the skill test, and they have been 3 Item No. 74/ C-4 O.A. No.3188/2018 provisionally allowed to upload their dossiers subject to finalization of their claim/qualifying the skill test.
2.2. The applicant, who is an orthopedic OBC OH category candidate, immediately submitted a representation on 04/06/2018 (Annexure A/7), followed by another representation dated 11/07/2018 (Annexure A/8), seeking exemption from the typewriting test and reasons for his not being shortlisted.
3. Learned counsel for the applicant contends that the admittedly no provision for exemption was allowed. He further mention that exemption will be granted in case if the candidate so apply. 3.1. Having participated in the selection process and appeared in typing test the applicant fail. He would contend that a request was made during conduct for typing test by the applicant that he has made a request to the competent authority during the typing test however the same was not exceeded to. He would contend he has been discriminated qua the others who have given exemption post the typing test.
4. After result was declared he came to know that certain candidates were given exemption. He would contend that it was mandate in the admit card issued to the applicant he had participate in skill test countering the arguments put forth by the counsel for the respondents.
5. Learned counsel for the respondent would contend that no certificate was forthcoming regarding declaration that he is not fit for typing under physical handicap category. He further relies upon terms and conditions in admit cared, reads as under
" Candidates are advised to keep visiting DSSSB's website regularly for important information, no separate intimation will be given."4
Item No. 74/ C-4 O.A. No.3188/2018 5.1 He further submits that the intimation for exemption was given prior to the date of skill test/typing test.
5.2. Learned counsel for the respondents' states that the process of short-listing candidates for the skill test is a matter of record. However, regarding the issue of disability, he submits that the applicant did not present the disability certificate during the typewriting test and, therefore, the decision to allow the candidate to proceed with the test was made to avoid potential complications. He adds that the Department of Personnel and Training (DOPT) issued directions regarding exemption from the typing test for handicapped individuals. However, the applicant did not apply for exemption with relevant documents in a timely manner. Hence, the relief claimed cannot be granted. 5.3. He draws attention to the fact that the representation by the applicant was made after the declaration of the result, and accordingly, he is stopped from claiming relief due to his own negligence and actions. Therefore, the present O.A. is not maintainable and deserves out right dismissal.
6. Learned counsel for the applicant submits that exemption towards skill test/type test was not at all notified to the candidates in any manner whatsoever, including the advertisement. However, it appears that respondents provided for unannounced exemption keeping in view DoPT OM dated 22.4.2015, (as mentioned in the counter reply). Admittedly, the applicant suffers disability entitling exemption for type test. Such provisions are beneficial provisions and ought not be denied by state on technical grounds saying that the applicant did not approach 5 Item No. 74/ C-4 O.A. No.3188/2018 them for the exemption and exemption was provided to only those who approached the respondents. Respondents did not made aware the candidates of their entitlements to exemption and now saying that those who did not approach them for exemption, will not be provided exemption. Such approach cannot be countenanced in law.
7. Having heard the learned counsel for the parties and gone through the case.
8. Analysis 8.1. For arising at just decision we would refer to Rules position qua the instructions on exemption the passing typing test on computer in respect of LDC. A reference is drawn to OM dated 22.04.2015 issued by Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training.
"a) Physically handicapped persons who are otherwise qualified to hold clerical post and who are certified as being unable to type by the Medical Board attached to Special Employment Exchanges for the Handicapped (or by a Civil Surgeon where there is no such Board) may be exempted from passing the typing test."
8.2. Pursuant to which a notice was issued by the respondents on 02.01.2018 which reads as under:
"I am directed to inform to convey the guidelines laid down by DOFT No. 14020/2014-Estt. (D) dated 22th April, 2015 for the physically handicapped persons/candidates who are seeking exemption from passing ping test may be read as under:
(a) Physically handicapped persons who are otherwise qualified to hold clerical post and who are certified as being unable to type by the Medical Board attached to Special Employment Exchanges for the Handicapped (or by a Civil Surgeon where there is no such Board) may be exempted from passing the typing test.
(b) The term 'physically handicapped persons' does not cover those who are visually handicapped or who are hearing handicapped but cover only those whose physical disability permanently prevents them from typing.6
Item No. 74/ C-4 O.A. No.3188/2018 In view of the above, candidates who are seeking exemption are required to give certificate from Medical Board attached to Special Employment Exchanges for the Handicapped (or by a Civil Surgeon that the he/she is unable to type at Skill Test Centre the on the date mentioned on e-Admit Card."
8.3. It is not in dispute that the applicant did not seek exemption and appeared in the typing test. Accordingly, it is also not in dispute that e could not qualify the typing test. Both parties rely on the aforementioned OM dated 22.04.2015. The learned counsel for the applicant relies upon clause 2 (ii) (a) (b) as reproduced herein above. On the other hand, learned counsel for the respondents relies upon the Rules of the instructions that there was a precondition for requiring to give a certificate from the medical board seeking exemption. No such medical certificate was given at the relevant point in time.
9. The learned counsel for the applicant places reliance upon the medical certificate issued by the Maharishi Balmiki Hospital, Govt. of NCT of Delhi dated 24.01.2014 (Annexure A/2).The interpretation of the aforementioned OM has to be seen with reference to the provisions of the Disabled Act.
10. Learned counsel for the applicant would contend that at least 04 OH category candidates have been exempted from the skill test. The 1st candidate provisionally selected under the OH category has obtained 87.75 marks, while perhaps the last, i.e., the 8th selected candidate in the said category, has obtained 79.75 marks in the written examination. All of them have obtained lesser marks than the applicant. It shall not be out of place to mention here that the selection of candidates is based on the merit position obtained in the written examination, with the skill test being a qualifying examination only.
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Item No. 74/ C-4 O.A. No.3188/2018
11. We have given anxious consideration to the default on the part of the applicant in not approaching the Competent Authority by providing a certificate as prescribed well in time.The applicant chose to appear in the typing test though he failed in the said typing test. In light of the provision as contained in the Right of person with Disability Act, it does not preclude the applicant from seeking exemption, more particularly, in light of the fact that the applicant had obtained 114 marks in the written examination.
12. It is also a fact that the applicant suffers from a 63% permanent physical impairment in relation to his left elbow joint, which would necessarily have been an impediment in performing well in the typing skill test. The applicant took a chance with the same, which by itself does not give grounds to the respondents not to consider the case of the applicant, as he has secured well, i.e., 114 marks in the written test. Keeping in view the pious objection of the Act for which it was enacted.
13. In an identical situation, the Hon'ble High Court of Delhi in WP (C) 9255/19 titled Raju Ranjan V/s Union of India, decided on 11.07.2023, has observed as follows:
"50. Suffice to state, the judgment of the Supreme Court inVikash Kumar (supra) has held that the judgment in V. SurendraMohan (supra) could not be a binding precedent after the enforcement of the 2016 RPwD Act. The Supreme Court in paragraphs 68 to 73 has held as under:
―68. A discordant note struck by this Court having a direct bearing on the principle of reasonable accommodation finds expression in a two-Judge Bench decision of this Court in V. Surendra Mohan v. State of T.N. [V. Surendra Mohan v. State of T.N., (2019) 4 SCC 237 : (2019) 1 SCC (L&S) 594] (―Mohan‖). The proceedings before this Court arose from a judgment [V. Surendra Mohan v. State of T.N., 2015 SCC OnLine Mad 2100] of the Madras High Court. At issue was the decision of the Tamil Nadu Public Service Commission (―TNPC‖) to impose a ceiling of 40-50% visual/hearing impairment to be eligible to be appointed as a Civil Judge (Junior Division).
Differently stated, a person 8 Item No. 74/ C-4 O.A. No.3188/2018 whose visual/hearing impairment exceeded 50% was disqualified from being eligible for the said post. In the said case, the appellant's disability was 70%. The appellant's name was not included in the list of registered numbers who were provisionally admitted to the oral test. He challenged this in the Madras High Court. By its judgment dated 5-6-2015 [V. Surendra Mohan v. State of T.N., 2015 SCC OnLine Mad 2100] , the Madras High Court held that as per the decision of the Government dated 8-8-2014 and Notification issued by the TNPC dated 26-8-2014, those partially blind with 40%-50% disability were only eligible and the appellant having 70% disability was not eligible to participate in the selection.
69. A two-Judge Bench of this Court held that a judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction. This Court affirmed the submission of the Madras High Court that seeking to address the socially constructed barriers faced by a visually or hearing impaired Judge, whose disability exceeds 50%, would create ―avoidable complications. As a result, the impugned ceiling was found to be valid.
The relevant portion of the judgment is excerpted below : (V. Surendra Mohan case [V. Surendra Mohan v. State of T.N., (2019) 4 SCC 237 : (2019) 1 SCC (L&S) 594] , p. 257, para 45) ―45. ... The High Court in its additional statement has encapsulated the functions and duties of the Civil Judge in the following words:
‗7. ... Impaired vision can only make it extremely difficult, even impossible, to perform any of these functions at all. ... Therefore, creating any reservation in appointment for those with disabilities beyond the 50% level is far from advisable as it may create practical and seemingly other avoidable complications. Moreover, given the need to prepare judgments based on the case papers and other material records in a confidential manner, the assistance of a scribe or the like completely takes away the secrecy and discreetness that come with the demands of the post.'
70. This judgment was delivered by this Court after India became a party to the UNCRPD and the 2016 RPwD Act, came into force. The aforesaid view espoused by this Court is innocent of the principle of reasonable accommodation. This Court did not consider whether the failure of the TNPC to provide reasonable accommodation to a Judge with a disability above the impugned ceiling was statutorily or constitutionally tenable. There is no reference in this Court's judgment to whether the appellant would have been able to discharge the duties of a Civil Judge (Junior Division), after being provided the reasonable accommodations necessitated by his disability.
71. The analysis by this Court in the portion excerpted above begs the question. Specifically, the relevant question, under the reasonable accommodation analysis, is not whether complications will be caused by the grant of a reasonable accommodation. By definition, ―reasonable accommodation‖ demands departure from the status quo and hence ―avoidable complications‖ are inevitable. The relevant question is whether such W.P.(C) 9255/2019 Page 31 accommodations would give rise to a disproportionate or undue burden. The two tests are entirely different.
72. As we have noted previously, the cornerstone of the reasonable accommodation principle is making adjustments that enable a disabled person to effectively counter the barriers posed by their disability.
9 Item No. 74/ C-4 O.A. No.3188/2018 Conspicuous by its absence is any reasonable accommodation analysis whatsoever by this Court
in Mohan [V. Surendra Mohan v. State of T.N., (2019) 4 SCC 237 : (2019) 1 SCC (L&S) 594] . Such an analysis would have required a consideration of the specific accommodations needed, the cost of providing them, reference to the efficacy with which other Judges with more than 40-50% visual/hearing impairment in India and abroad can discharge judicial duties after being provided the necessary accommodations, amongst other factors. In holding that the ceiling was reasonable on the application of the principle of reasonable accommodation, the ratio as expounded fails as ―distinct exhortatory dimension that must always be kept in mind while determining whether an adjustment to assist a disabled person to overcome the disadvantage that she or he has in comparison to an able-bodied person is reasonable‖.
[Paulley v. FirstGroup Plc, (2017) 1 WLR 423 : 2017 UKSC 4, para 117 [Lord Kerr -- partly dissenting].] It is persons with disabilities who have been the victim of this lapse.
73. In light of the fact that the view of this Court in Mohan [V. Surendra Mohan v. State of T.N., (2019) 4 SCC 237 : (2019) 1 SCC (L&S) 594] was rendered in a case under the 1995 Act which has now been replaced by the 2016 RPwD Act and in light of the absence of a reasonable accommodation analysis by this Court, the Mohan [V. Surendra Mohan v. State of T.N., (2019) 4 SCC 237 : (2019) 1 SCC (L&S) 594] judgment stands on a legally vulnerable footing. It would not be a binding precedent, after enforcement of the 2016 RPwD Act.‖
51. It must be said that the issues which arose for consideration in V. Surendra Mohan (supra) and Vikash Kumar (supra) are in a totally different fact scenario and not the one which falls for consideration in this petition.
52. It follows the petitioner was also entitled to equal treatment of waiving off the computer / typing test having disability of one arm, in view of the instructions issued by the Government of India from time to time which we have already reproduced above. Moreover, the benefit of those instructions have been given in favour of the LDCs, who were promoted to the post of SSA andthere is no reason why the same benefit could have been denied to the petitioner herein which clearly violate the mandate of Article 14 and 21 of the Constitution of India.
53. Hence, we have no hesitation to hold, that the stipulation in the recruitment rules that a candidate must qualify the typing test with a speed of 5000 KDPH must be read down to mean the same shall not be applicable to a candidate who has disability of one arm or both arms or one arm and one leg.
15. Since the applicant chose to participate in the typing test without seeking exemption and failed. We direct that the applicant shall not be entitled to any consequential relief except notional seniority. 10
Item No. 74/ C-4 O.A. No.3188/2018 15.1. It is also a matter of fact that written representation of the applicant was also not addressed by the respondents.
16. In view of the above, the applicant is entitled to the grant of exemption towards the typing test, the OA deemed to be allowed. The actual benefits to the applicant shall be accorded from the date of the joining. This exercise shall be done within a period of two months from the date of receipt of a copy of this order.
17. The present OA is allowed. No order as to costs.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
/arti/