Central Administrative Tribunal - Delhi
Lovkush Ravi vs Northern Railway on 17 April, 2025
1
O.A. No. 1154/2022
Item No. 90 (C-4)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1154/2022
Reserved on: 19.03.2025
Pronounced on: 17.04.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Lovkush Ravi,
S/o Sh. Naresh Kumar,
R/o Railway Quarter 2002F,
Near ITC Road,
Saharanpur, Uttar Pradesh, 247001
Aged about 26 years,
(Group 'C'),
(Candidate for the post of Senior Clerk cum Typist).
...Applicant
(By Advocate: Dr. Krishan Mahajan)
VERSUS
1. General Manager,
Northern Railway,
Baroda House, New Delhi- 110001.
2. Secretary,
Railway Recruitment Cell,
Northern Railway,
Lajpat Nagar-!, New Delhi- 110024.
... Respondents
(By Advocate: Ms. Anu Singh)
2
O.A. No. 1154/2022
Item No. 90 (C-4)
ORDER
Hon'ble Mr. Manish Garg, Member (J) :
In the present OA filed under Section - 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:
"(a) Quash and set aside the impugned result concerning the post of Senior Clerk and Typist advertised for the GDCE. Competitive Examination Notification No. 01/2020/GDCE of the respondent;
(b) Direct the respondent to seek the report of the Nodal Officer, mandated by the Supreme Court in Union of India vs National Federation of the Blind as to compliance by the respondent of S.34 of the RPWD Act 2016 and its rules concerning the impugned exam.
(c) Direct the respondent to hold a legal and proper exam as well as the typing test to fill in the 73 vacancies of Senior Clerk cum Typist after declaring the vacancies reserved for the disabled on the actual basis of their roster.
(d) Typist.
(e) Accord all consequential benefits
(f) Award costs of the proceedings; and
(g) Pass any order/relief/direction(s) as this Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the applicant."
2. Highlighting the facts of the case, learned counsel for the applicant submitted as under:
2.1. The applicant, a 100% blind person, had applied for the post of Senior Clerk cum Typist under the Railway Recruitment Cell (RRC)/Northern Railway (NR) Notification.
However, the respondent failed to comply with the 3 O.A. No. 1154/2022 Item No. 90 (C-4) provisions of the Rights of Persons with Disabilities (RPWD) Act, 2016, and its 2017 Rules. Specifically, the respondent did not reserve the mandatory minimum four percent reservation for benchmark disabled persons, as required under Section 34 of the RPWD Act, 2016. Despite showing 73 vacancies in the Notification, the respondents failed to indicate the mandatory reservation for benchmark disabled persons.
2.2. The respondents' actions were in clear violation of the RPWD Act, 2016, and its Rules. The Act mandates that every government establishment shall appoint not less than four percent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities. The respondents' failure to comply with this provision resulted in the applicant being denied the opportunity to compete for the post on an equal footing with other candidates. 2.3. Furthermore, learned counsel for the applicant also submitted that the applicant was also denied the opportunity to undergo the qualifying typing test, despite being eligible for exemption under the RPWD Act, 2016. The respondent's actions in this regard were arbitrary and 4 O.A. No. 1154/2022 Item No. 90 (C-4) discriminatory, and resulted in the applicant being deprived of the chance to legally qualify for the post. The applicant was instead asked to obtain a disability certificate, and his typing test result was shown as "exempted" without conducting the test. 2.4. Concluding his arguments, learned counsel for the applicant submitted that the applicant has approached this Tribunal seeking relief on the grounds of violation of the RPWD Act, 2016, and its Rules. On behalf of the applicant, learned counsel for the applicant has prayed that the Tribunal may declare the respondents' actions as illegal and arbitrary and further direct them to comply with the provisions of the RPWD Act, 2016, and its Rules and, thereafter, grant the applicant the opportunity to compete for the post on an equal footing with other candidates.
3. Supporting the case of the applicant, learned counsel for the applicant contended that the respondents have violated the Rights of Persons with Disabilities Act, 2016, and its 2017 Rules, thereby depriving the applicant of his opportunity to the post of Senior Clerk cum Typist. The learned counsel contended that the respondents committed fraud by ignoring the provisions of reservation for the 5 O.A. No. 1154/2022 Item No. 90 (C-4) disabled, failed to maintain a mandatory roster, and did not indicate reserved vacancies in the Notification. Additionally, the respondents limited the vacancies to identified posts, violating Supreme Court judgments, and failed to reserve vacancies for the disabled. Furthermore, learned counsel added that the respondent held a sham typing test and declared the applicant "Exempted" without conducting the test.
4. Relying upon the averments made in the counter affidavit, learned counsel for the respondents opposed the O.A. and submitted as under:
4.1. Learned counsel submitted that the applicant was not allotted any post due to being lower in merit. The applicant's score in the Computer-Based Test (CBT) was 72.78912, which was less than the score of the last selected candidate in the SC category, who scored 73.46939. Therefore, the applicant was not eligible for empanelment for the post of Sr. Clerk Cum Typist.
4.2. Learned counsel denied any illegality or bias in the recruitment process and stated that the process was conducted fairly and transparently, with all candidates being given equal opportunities to compete. The respondent 6 O.A. No. 1154/2022 Item No. 90 (C-4) department acted in accordance with the rules and notifications published for all candidates, and there was no malafide intention on the part of the administration.
4.3. Furthermore, learned counsel for the respondents stated that the applicant's grievance is baseless, unfounded, and without merit. The applicant's plea cannot be accepted as the administration has acted to maintain the accuracy of the system. The recruitment process involved lakhs of candidates, and the process cannot be put on hold based on the applicant's assumptions and presumptions. Adding to his arguments, learned counsel for the respondents submitted that the applicant's status has already been available on the RRC website, which is the main source of contact with candidates for information about the examination. Therefore, the applicant was aware of his status and had no legitimate grounds for grievance.
4.4. Concluding his arguments, learned counsel for the respondents submitted that the applicant's Original Application (OA) be dismissed as the applicant is not legally entitled to any relief as prayed for.
5. Heard learned counsel for the respective parties and perused the pleadings available on record.7 O.A. No. 1154/2022
Item No. 90 (C-4)
6. ANALYSIS :
6.1. There cannot be any dispute that The Rights of Persons with Disabilities Act, 2016, mandates reservation and ensuring equal opportunities for PwBDs.
6.2. In the present case, a notification No. 01/2020 for General Departmental Competitive Examination (GDCE) was issued by the respondents. The post advertised was Senior Clerk cum Typist having medical standard C-2. The post was identified for the following disability group:
"B, LV, HI, OA, OL, OAL, BL, LC, DW, AAV, MD"
6.3. It is not in dispute that no horizontal reservation was provided for.
6.4. The prescribed minimum educational & /or Technical Qualification for the said post was as under:-
"Degree from recognized University or its equivalent (Graduation) Typing proficiency in English/Hindi on Computer is essential (30 w.p.m. in English & 25 w.p.m. in Hindi."
6.5. The applicant applied for the post in question seeking benefit of PwBD as 100% Blind. Total Post advertised were
73. The applicant was provisionally shortlisted for Typing Skill Test. The applicant was exempted from "Typing Skill Test".
8O.A. No. 1154/2022 Item No. 90 (C-4) 6.6. The applicant has not been allotted the post in question due to being lower in merit. The last cut off in SC category was 69.04762 whereas the applicant secured 72.78912 marks out of 100 marks. It has been averred that after Documents Verification, Provisional panel was issued on 14.03.2022 with following cut off marks;
Post UR OBC SC ST Total
Candidates
Sr. 80.61224 79.25170 73.46939 67.00680 85
Clerk
Cum
Typist
6.7. Further it has been stated by the respondents that Railway Board Vide Letter No. No. E (NG) I-2018/PMl/23 dated 23.04.2019 clarified that the horizontal reservation quota (including that PWBD and EWS) that is applicable for the Open Market recruitment will not apply for the GDCE scheme.
6.8. The RBE-65/2019 dated 23.04.2019 and RBE- 72/2019 dated 02.05.2019 issued by Government of India, Ministry of Railways, Railway Board, read as under:
"RBE-65/2019 dated 23.04.2019 Sub: General Departmental Competitive Examination Reservation for "horizontal categories including Persons with Benchmark Disabilities and Economically Weaker Sections (EWS) who are serving employees' reg.9 O.A. No. 1154/2022
Item No. 90 (C-4) Ref: (1) SECR's letter No. P-HQ/RUL/105/5/7073 dated 25.09.2018 & 04.02.2019
(ii) ECoR's letter No. ECoR/Pers/GDCE/2019 dated 01.04.2019 Clarification has been sought by certain Railways regarding applicability of reservation for PwBD and Economically Weaker Sections (EWS) employees' under the scheme of General Departmental Competitive Examination (GDCE).
The matter has been examined in detail in Board's office. It is clarified that horizontal reservation quota (including that for PwBD and EWS) that is applicable for Open Market recruitment will not apply for GDCE scheme. This disposes of the above referred letters."
"RBE-72/2019 dated 02.05.2019 Sub: General Departmental Competitive Examination - Reservation for Persons with Benchmark Disabilities and Economically Weaker Sections (EWS) who are serving employees' reg.
Attentions is invited to clarification issued vide Board's letter of even number dated 23.04.2019 regarding applicability of reservation for Persons with Benchmark Disabilities (PwBD) and Economically Weaker Sections (EWS) employees under the General Departmental Competitive Examination (GDCE) Scheme.
The second para of the said letter may please be read as under:
"The matter has been examined in detail in Board's office. It is clarified that the reservation for Persons with Benchmark Disabilities (PwBD) and Economically Weaken Sections (EWS) that is applicable for open market recruitment will not apply for the GDCE scheme."
6.9. A perusal of the records reveal that Advertisement was silent on the fact that horizontal reservation quota (including PWBD and EWS) was not applicable to GDCE Scheme.
6.10. In terms of Section 20(3) of the Rights of Persons with Disabilities Act, 2016, no promotion shall be denied to a 10 O.A. No. 1154/2022 Item No. 90 (C-4) person merely on the ground of disability. Further, in terms of Section 20(4) of the Act, no Government establishment shall dispense with or reduce in rank an employee who acquires a disability during his/her service. As per the proviso to this sub-section, if an employee, after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits. It is further provided that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. However, in case the PwBDs for whom the supernumerary post was created is eligible for next promotion to higher pay level, and it is not possible to adjust the employee against any post, a fresh creation of supernumerary post in next higher level will be required by surrendering the previously created supernumerary post at the lower level, and the proposal for the same may be submitted to the Department of Expenditure. An employee who acquires disability, after entering into service, will be entitled to get the benefit of reservation in promotion as a PwBD. However, his seniority among PwBDs will be counted from the date of certification of his/her disability, 11 O.A. No. 1154/2022 Item No. 90 (C-4) i.e., disability of 40% or more in the categories covered under Section 34(1) of the Rights of Persons with Disabilities Act, 2016. A post is identified suitable only for one category of disability, reservation in promotion in that post shall be given to persons with that category of benchmark disability only. However, reservation of 4% for PwBDs shall not be reduced in such cases and total reservation in the cadre will be given to PwBDs for which it has been identified. Likewise, in case the post is identified suitable for two categories of disabilities, reservation shall be distributed between persons with those categories of disabilities equally, as far as possible. It shall, however, be ensured that reservation in different posts in the establishment is distributed in such a way that the PwBDs, as far as possible, get equal/fair representation. The points used in the 100-point Roster after a gap of 25 points shall be used to give reservation. In other words, it will be given only at the points reserved for PwBDs, and not in a bunched manner.
6.11. We note that in advertisement, number of vacancies reserved for SCs, STs and each category of PwBDs have been indicated clearly. The PwBDs belonging to the category/categories for which the post is identified shall be 12 O.A. No. 1154/2022 Item No. 90 (C-4) allowed to apply for the post advertised for being filled up by Limited Departmental Competitive Examination, even if no vacancy is reserved. However, they will not be allowed any relaxed standard. Such PwBD candidates will be considered for selection/appointment to the post by general standards of merit.
6.12 In its order dated 28.9.2021, delivered in the 'Application for Clarification in the matter of "Siddaraju vs. State of Karnataka" in Civil Appeal No.1567/2017, the Hon'ble Supreme Court directed the Government to issue instructions on 'Reservation in Promotion', as provided in Section 34 of the Rights of Persons with Disabilities Act, 2016.
6.13 Now, it has been clarified that Reservation for backward classes of citizens (SCs, STs and OBCs) is called 'vertical' reservation and the reservation for categories such as PwBDs and ex-servicemen is called 'horizontal' reservation. Horizontal reservation cuts across vertical reservation (in what is called interlocking reservation) and persons selected/promoted against the quota for PwBDs have to be placed in the appropriate category viz. SC/ST/OBC/Unreserved depending upon the category to 13 O.A. No. 1154/2022 Item No. 90 (C-4) which they belong in the roster meant for reservation of Scs/STs/OBCs.
6.14 The respondents have carried out necessary corrective measures by providing reservation for PwBD, which is a horizontal reservation, made to be applicable in GDCE in terms of RBE No. 169/2022 dated 27.12.2022 issued by Government of India, Ministry of Railways, Railway Board, which reads as under:
"Sub: Scheme of General Departmental Competitive Examination (GDCE) --regarding provision of quota for PwBD.
As the Railway administration is aware detailed instructions exist vide letter No. E(NG)I-92/PM2/16 dated 20.08.1993, as modified from time to time, regarding filling up vacancies in the non gazetted categories through the GDCE scheme.
The issue whether reservation for PWBD in GDCE will be applicable or not has been examined by the Board in consultation with the DoPT. It has been decided that reservation for PwBD, which is a horizontal reservation, will be applicable in GDCE also to the permissible extent.
The cases decided otherwise in the past need not be reopened."
6.15 We also take notice of the fact that the benefit to the applicant of being PwBD candidate has been accorded by exempting him to appear in Skill/ Typing Test. Any relief to the applicant at this stage will effect the rights of persons having such disability who participated in GDCE and as such were deprived horizontal reservation. Further, the 14 O.A. No. 1154/2022 Item No. 90 (C-4) applicant fails in the standard of merits as he was lower in order of merit in SC category.
6.16 In Suo Motu Writ Petition (Civil) No. 2 Of 2024 -In Recruitment Of Visually Impaired In Judicial Services, the Apex Court held as under:-
"67.1. Thus, after considering the pleadings, submissions of the learned counsel appearing for all the parties, as well as the legal positions and case laws, we conclude as follows:-
(i) Visually impaired candidates cannot be said to be 'not suitable' for judicial service and they are eligible to participate in selection for posts in judicial service.
(ii) The amendment made in Rule 6A of the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994 falls foul of the Constitution, and is hence, struck down to the extent that it does not include visually impaired persons who are educationally qualified for the post to apply therefor.
(iii) The proviso to Rule 7 of the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994 relating to additional requirements, violates the equality doctrine and the principle of reasonable accommodation, and is hereby struck down in its application to differently abled persons who have the requisite educational qualifications for applying to the posts under judicial service.
(iv) Relaxation can be done in assessing suitability of candidates when enough PwD are not available after selection in their respective category, to the extent as stated in the relevant paragraphs above, and in the light of existing Rules and Official Circulars and executive orders in this regard, as in the present case.
(v) A separate cut-off is to be maintained and selection made accordingly for visually-impaired candidates as has been indicated in the relevant paragraphs in line with the judgment in Indra Sawhney.
(vi) For the purpose of rights and entitlements of persons with disabilities, particularly in employment, and more specifically in respect of the issues covered in this judgment, there can be no distinction between Persons 15 O.A. No. 1154/2022 Item No. 90 (C-4) with Disabilities (PwD) and Persons with Benchmark Disabilities (PwBD).
VII.RESULT
68. In the upshot:
(i) Visually impaired candidates are eligible to participate in selection for the posts under the judicial service and hence, Rule 6A of the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994 is struck down insofar as it excludes visually impaired and low vision candidates for appointment in judicial service.
(ii) Rule 7 of the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994 to the extent of prescribing additional requirement of either a three-year practice period or securing an aggregate score of 70% in the first attempt, is struck down insofar as it applies to PwD candidates. The said rule will be applicable to the PwD candidates insofar as it prescribes the educational and other qualifications as eligibility criteria including the minimum aggregate score of 70% (with relaxation as may be determined like in the case of SC/ST candidates), but without the requirement of either that it should be in the first attempt or that they should have three years' practice. As a sequel, the impugned order dated 01.04.2024 passed by the High Court and the consequential notification dated 17.11.2023 issued by the High Court of Madhya Pradesh, are set aside as against the PwD candidates and the appellant viz., Ayush Yardi and similarly placed persons, are entitled to be considered for participating in the selection process in the light of this decision.
(iii) The order of the High Court dated 11.01.2024 and the notification dated 18.02.2023 are set aside as far as the appellant viz., Alok Singh and similarly placed persons are concerned. The appellant and similarly placed persons who had participated in the selection process, are entitled to be considered in the light of this decision, and they may be appointed, if they are otherwise eligible in the vacant posts after applying applicable relaxation as provided for in the executive orders.
(iv) The writ petitioners in WP (C) Nos. 484 and 494 of 2024, who contend that separate cut-off was not applied in the Rajasthan Judicial Service Preliminary Examinations, and consequently were not selected for the main examination, shall be entitled to be considered in the light of this decision in the next recruitment, if they so apply to the post notified along with the post unfilled now and carried forward to the next recruitment by maintaining a separate cut off and merit list for PwDs.16 O.A. No. 1154/2022
Item No. 90 (C-4)
(v) The respective authorities are directed to proceed with the selection process for appointment of the judicial officers, in the light of this decision and complete the same, as expeditiously as possible, preferably, within a period of three months, from today.
69. All the cases stand disposed of, on the above terms. No costs. Connected Miscellaneous Application(s), if any, shall stand disposed of."
6.17 There cannot be two yardsticks while applying the reservation in horizontal quota between open market competitive selection and GDCE/LDCE Selection which is not only artificial but runs contrary to letter and spirit of the Section 20 read with Section 34 of 2016 Act having no intelligible differentia or nexus to what is sought to be achieved. It is imperative that the merits of PwBD candidate in respective vertical/horizontal category be drawn separately henceforth in order to do complete justice and fulfill the aim of reservation in promotion as well as sub-serve pious object of PWBD Act as amended up-to date.
17. CONCLUSION:-
17.1. In view of the above, the present OA is disposed of in terms of the directions issued by the Apex Court in terms of para 68 of the decision rendered in Suo Motu Writ Petition (Civil) No. 2 OF 2024 in Recruitment Of Visually Impaired In Judicial Services. The impugned action on the part of the respondents insofar as not drawing/providing 17 O.A. No. 1154/2022 Item No. 90 (C-4) separate merits Of PWBD Candidate in respective Vertical/Horizontal category cannot sustain. Accordingly, the respondents are directed to draw a separate merit list of similarly placed PwDs in their respective category who are entitled to be considered for participating in the selection process and they may be appointed, if they are otherwise eligible in their own merits to vacant posts or by creating supernumerary posts and they shall be adjusted as per roster in the next recruitment by maintaining a separate cut off and merit list for PwDS after applying applicable relaxation as provided for in the executive orders. The above directions shall be complied by the respondents within a period of three months from the date of receipt of a certified copy of this order.
17.2. The OA is disposed of in aforesaid terms. Pending MAs, if any, shall also stand disposed of. No costs.
(Dr. Sumeet Jerath) (Manish Garg)
Member (A) Member (J)
/as/