Central Administrative Tribunal - Delhi
Dr. Praveen Kumar Mittal vs Union Of India Through on 12 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2604 of 2010 This the 12th day of August, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Dr. Praveen Kumar Mittal S/o shiv Dayal Mittal, R/o Kanta Sadan, Opp. Vikarm Cold Storage, Jotwara, Jaipur-302012 (Rajasthan). Applicant ( By Shri S. S. Dahiya, Advocate ) Versus 1. Union of India through Secretary, Department of Personnel & Training, Ministry of Personnel Public Grievances & Pensions, North Block, New Delhi. 2. Secretary, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi-110001. Respondents ( By Shri R. N. Singh for Respondent No.1 and Shri Naresh Kaushik for Respondent No.2, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Dr. Praveen Kumar Mittal, the applicant herein, a candidate in the physically handicapped category, has been allocated to IRS on the basis of result of the Civil Services Examination, 2009. In this Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, he seeks a direction to be issued to the respondents to declare the IFS Locomotor Disability (Physically Handicap) posts/vacancies in terms of advertisement dated 6.12.2008 of Civil Services Examination for the year 2009 and cancel the vacancy of IFS allotted to the HI candidate. He also seeks a direction to the respondents to allot two IAS reserved vacancies in lieu of one allotted to the LDCP category and also delete the three vacancies allotted to the HI cadre of IAS seat, and/or proportionately allot the five reserved seats of physically disables persons to the three sub-physically disabled category persons.
2. The facts of the case as set out in the Application, and on which the reliefs as indicated above are sought to rest, reveal that through an advertisement dated 6.12.2008 Civil Services Examination, 2009 was to be conducted in accordance with the rules and regulations for the said examination. The respondents, as per the advertisement, reserved certain categories for each kind of disables and other persons, i.e., for SC, ST, general etc. The case of the applicant, however, falls under the physically disabled category, wherein there are three sub-categories, and for each of sub-category, particularly some seats were reserved. The following are three sub-categories of physically disabled persons:
Abbreviated Form Full Form
(i) LDCP Locomotor Disability or Cerebral Palsy
(ii) B/LV Blindness/Low Vision
(iii) HI Hearing Impairment It is the case of the applicant that the respondents promulgated in the newspapers for conducting the Civil Services Examination, 2009, wherein it was provided that for the physically disabled category vacancies were reserved, and that a person who may be physically handicapped with disability of more than 40% would be considered for the said quota. It is the case of the applicant that he falls within the category of Locomotor Disability (LD) which is more than 40%. It is pleaded that the Government Hospital at Bharatpur (Rajasthan) assessed the disability of the applicant to the extent of 50%. The applicant filled the form to appear in the examination in consonance with the advertisement and was expecting that the respondents would act in accordance with law, rules and regulations governing reservation for physically disabled category candidates. In the category of physically disabled candidates, four IAS cadre vacancies were reserved for (i) LDCP, (ii) B/LV and (iii) HI, which were to be equally divided among these three sub-categories of disabled persons. Further, in the IFS cadre only one vacancy was reserved for LDCP category and the other two sub-disability categories were excluded. It is pleaded that the IFS reserved vacancy was exclusively to be allotted to LDCP, i.e., to the applicants category, whereas, in the final result IFS reserved seat has been allotted to HI. Rule 2(i) of the relevant rules and regulations which have been framed by the respondents vide office memorandum dated 29.12.2005, provides that each sub-category of physically disabled will have 1% quota of total number of vacancies, i.e., 1% of each LDCP, B/LV and HI. In view of provisions contained in rule 25, reserved category appointment will be filled up in accordance with the above said office memorandum. The rules have been framed by the respondents in line with Section 33 of the Persons with Disabilities (Equal Opportunities etc.) Act, 1995. The respondents conducted the preliminary examination on 17.5.2009. The applicant appeared in the preliminary examination and faired well and was quite hopeful that he would succeed in the examination. The respondents declared the result and the applicant successfully qualified in the examination and merited in the list at serial number 255 of qualified candidates. The applicant in the category of LDCP merited III in the list. The candidate at serial number one in the above category would be given IAS cadre, as she has topped in the general category of the candidates who would be selected for IAS cadre. Name of the applicant in that case would come to II in the LDCP category while allotting the reserved seats of IAS & IFS to the physically disables persons. The total number of seats as per the final vacancy statement for the reserved category in the LDCP for IAS cadre is one, which would be contrary to the newspaper advertisement. It is the case of the applicant that the seat which was exclusively meant for LDCP has been now transferred to HI candidate, and that if the respondents had acted in accordance with law, rules and regulations, the applicant would have been liable to be allotted either IAS or IFS cadre. In short, the case of the applicant is that as per the advertisement, four seats were reserved for physically handicapped in the cadre of IAS and one seat was exclusively reserved for locomotor disabled person only, but in the final result the respondents have given only one seat in the IAS cadre out of the five declared vacancies to the category to which the applicant belongs. It is further the case of the applicant that the respondents ought to have allotted two seats for locomotor disabled persons, and secondly, as per the advertisement dated 6.12.2008 one seat which was exclusively reserved in IFS cadre for the category of the applicant, has been allotted to hearing impaired (HI) person by juxtaposing the commitment made in the advertisement.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance. Two written statements, one on behalf of the Union of India and the other on behalf of Union Public Service Commission, have been filed. The cause of the applicant has been opposed. In the reply filed on behalf of the Union of India, it has inter alia been pleaded that all the candidates called for personality test are required to undergo medical examination to ascertain their physical fitness and suitability for appointment to government service as per prescribed rules. Medical standards for various services/posts included in the scheme of the examination are determined after taking into consideration job requirements etc. Regulations relating to the physical examinations of candidates are laid down in examination rules, regulation 1 whereof provided that To be passed as fit for appointment, a candidate must be in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of the duties of his appointment. Regulation 2 provides that The Government of India reserve to themselves absolute discretion to reject or accept any candidate after considering the report of the Medical Board. As per the statutory provisions of the CSE rules, medical boards are constituted at various government hospitals in Delhi to medically examine the candidates called for personality test, which is conducted by the Union Public Service Commission. Medical examination is conducted to determine their fitness/suitability for various services/posts. Medical boards forward their findings to the 1st respondent for taking further necessary action. If on examination a candidate is declared unfit, the findings of the medical board are communicated to the candidate concerned, if the candidates would like to appeal against the findings/decision of the medical board in the manner prescribed in regulation 12 of the medical regulations. If the candidate prefers an appeal against the decision of the medical board, his case is referred to an appellate medical board, which is constituted in a hospital other than the hospital in which the initial medical board was constituted, to re-examine the candidate who has preferred appeal against the findings of the medical board. The findings of the appellate medical board regarding the physical fitness of candidates for appointment to government service is final. The applicant was called for personality test for interview on the basis of CSE 2009. The medical board of Safdarjung Hospital, New Delhi examined the applicant and declared that his both legs are affected but not arms. As per his dossier it was mentioned that his one leg was affected. Accordingly, findings of the medical board were communicated to him vide letter dated 30.7.2010 and an opportunity was given to him to file appeal against the findings of the first medical board. The applicant availed of the opportunity and preferred appeal against the findings of first medical board. He was directed to appear before the appellate board at RML Hospital, New Delhi on 30.8.2010. However, the applicant did not appear before the medical board at RML Hospital on that date and ultimately the findings of the previous medical board of the Safdarjung Hospital that both his legs are affected (78%) has been accepted and accordingly his service allocation has been completed and he has been allotted the service of IRS (IT).
4. While replying to the contention raised by the applicant with regard to there being four seats reserved for the physically handicapped category in the cadre of IAS and one seat being exclusively reserved out of that for locomotor disabled persons, but in the final results the locomotor disabled category to which the applicant belongs, having been given only one IAS cadre vacancy out of five vacancies for the physically handicapped, whereas, as per reservation percentage, there should have been two vacancies for the locomotor disabled persons, it is pleaded that the respondents maintain a 100-point roster for providing the reservation to the physically handicapped category persons, and that the category of physically disabled persons is further sub-divided into three sub-categories, i.e., (i) blindness or low vision, (ii) hearing impaired, and (iii) locomotor disability/cerebral palsy. It is further pleaded that the three per cent reservation provided for physically handicapped category is further sub-divided into one per cent each to these sub-categories. It is then pleaded that to ensure correct representation of all the sub-categories, as mentioned above, in the 100-point roster maintained by the respondents, the points are earmarked for all the sub-categories of disabilities, and that for the CSE 2009, the factual position was that there were four vacancies available for the physically handicapped persons. As per the roster point, the first vacancy at 34th point was reserved for visually impaired. The next vacancy at 68th point was reserved for hearing impaired and the next at 2nd point was reserved for LDCP. Again, the 36th point was earmarked for person suffering from blindness or low vision. It would mean that out of the four vacancies available, two were reserved for the visually impaired, one for hearing impaired and one was for LDCP. In addition to that, one vacancy was earmarked for low vision category which had remained unfilled from the CSE 2008. It is pleaded that as per rules, the said unfilled PH vacancy was carried forward, increasing the total number of vacancies for visually impaired to three for the CSE 2009. It is then clarified that in Annexure-III of the OA, as regards the IAS it has been categorically mentioned that the sub-category of the four vacancies reserved for physically handicapped had not yet been finalized. It is pleaded that the sub-categories of PH vacancies had been finalized after issuance of the advertisement. The applicant, it is pleaded, is not eligible for appointment to IAS, and further that he did not qualify the medical criteria prescribed for that service.
5. As regards the contention of the applicant that one seat was exclusively reserved in the cadre of IFS for locomotor disabled persons, but in the final results that vacancy was allocated to the hearing impaired person, it is pleaded that the applicant has not impleaded the Ministry of External Affairs, the cadre controlling authority for Indian Foreign Service (IFS), as party respondent, and, therefore, it would not be possible to counter the allegations made by the applicant regarding change in the number of vacancies in the IFS cadre. The OA is stated to be suffering from non-joinder of necessary parties. It is then pleaded that vacancies for CSE are determined by the concerned cadre controlling authorities and for IFS, Ministry of External Affairs is the concerned cadre controlling authority, and that vacancies determined by cadre controlling authorities of all services are intimated to UPSC. It is pleaded that the answering respondent has no role in determination of vacancies in various services, except IAS, for which it is the cadre controlling authority.
6. In the reply filed on behalf of respondent Union Public Service Commission, it has inter alia been pleaded that the rules of CSE 2009 were framed and notified by DOP&T on 6.12.2008. Simultaneously, the Commission also issued a detailed notice of examination in the Employment News, wherein names of participating services were indicated along with the details of services identified for being manned by various categories of physically handicapped along with the physical requirement and functional classifications. For some of the services there was indication about number of vacancies reserved for physically handicapped categories as per information available with the Commission from the cadre controlling authorities till then. In respect of the Indian Administrative Service it was indicated that while all the three categories of physically handicapped were identified for the service, four vacancies were available for which the category-wise break-up had not yet been finalized at that point of time. For the Indian Foreign Service also, while all the three categories of physically handicapped were identified by the concerned Ministry, only one vacancy in the category of locomotor disability was indicated. However, it was mentioned in the Commissions notice that the vacancies shown therein were tentative in nature and naturally, the same were subject to change at a later stage. For IAS, in the final vacancy indent furnished by DOP&T, the number of vacancies reserved for physically handicapped categories were revised to five instead of earlier indent of four, with the category-wise break-up of one for PH-1 (LDCP), three for PH-2 (Visually Impaired), and one for PH-3 (Hearing Impaired). The Commission declared the final result of CSE 2009 against a finalized vacancy-figure of 989, consisting of 30 vacancies reserved for the physically handicapped categories. It is pleaded that after the Commission recommends candidates as per merit order, the DOP&T allocates services to the respective candidates on the basis of their rank, option exercised by them and services suitable for them as per functional classification and physical handicap requirements prescribed for a particular service. It is mentioned that the Commission has no role in determining the number of vacancies to be kept reserved for various physically handicapped categories, since it is done by the respective cadre controlling Ministries/Departments as per respective rosters maintained by them.
7. The applicant has not chosen to file rejoinder to any of the written statements filed on behalf of the respondents.
8. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. From the pleadings as made in the counter reply filed on behalf of the first respondent, what clearly emerges is that there are physical standards even for physically disabled categories for their allocation to a particular service. It is the positive case of the respondent that the applicant, as per physical standard laid down for allocating physically handicapped persons to IAS, would not answer the criteria. The applicant, as mentioned above, has not chosen to rebut the averments referred to above as made in the counter reply of the first respondent. We might have delved into the issue deeper if, perhaps, there was any contest that there is no prescribed physical standard for physically handicapped person to be allocated to a particular service. The applicant, it may be recalled, was put to medical test, result whereof was intimated to him and he was asked to file an appeal before the appellate medical board, if he may so choose. The applicant did avail the said opportunity, but would not appear before the appellate board for medical test. Both the legs of the applicant are stated to be affected, and that, according to the respondents, would make him ineligible for allocation to IAS. Once, there is no rebuttal by the applicant to the pleadings as made above, the same shall have to be taken as correct. We may, however, hasten to add that there may be justification with the respondents not to allocate a particular service to physically handicapped person, depending upon his extent of disability. To illustrate, could a person with disability as both legs being affected be allocated to IPS? The answer, in our view, has to be an emphatic NO.
9. In view of what has been stated above, the applicant, in any case, cannot be allocated to IAS. The applicant has made no prayer for his allocation to IFS, even though he seeks a direction to be issued to the respondents to declare the IFS Locomotor Disability (Physically Handicapped) posts/vacancies in terms of advertisement dated 6.12.2008 of the Civil Services Examination, 2009 and cancel the vacancies of IFS allotted to HI category candidate. Assuming that the prayer as mentioned above may include appointment of the applicant, or his allocation, to IFS, we find practical difficulty in giving the said relief to the applicant. Even though, no objection in that regard might have been taken by the respondents, but it appears to us that if the applicant may seek his allocation to IFS cadre, he ought to have made the physically handicapped person to whom the vacancy might have been diverted, as per the case set up by him, as party respondent. Seats are limited. There is no question of creating a supernumerary post and direct the respondents to appoint the applicant against the same. If the applicant is allocated to IFS, somebody has to make way, and we are of the considered view that no directions can be issued in that regard unless the person to whom the seat might have been allocated in the physically handicapped category was to be made party respondent in the present case. Learned counsel representing the applicant, when confronted during the course of arguments as regards non-joinder of necessary parties, would only state that the matter be adjourned for enabling the applicant to move an application for impleadment of the person to whom the vacancy might have been diverted. This course, at this distance of time, does not commend us. The result of the Civil Services Examination 2009 was declared on 4.3.2010. The allocation to respective services of all the candidates has been done since long, may be more than a year by now. It is understood that all of them must have gone through the respective training to which they might have been put through, and in all probability, may have been allocated the States in which they have to serve. At this distance of time, it would not be appropriate to disturb the one who might have been allocated to IFS in the physically handicapped category. It will cause irreparable loss to him.
10. In the context of the facts as mentioned above, there would be no need to give our findings on the issue raised by the applicant as regards distribution of IAS seats to three sub-categories of physically handicapped, and diversion of the one IAS seat which is stated to be earmarked for physically handicapped category of the applicant, to other category, even though we may hasten to add that the advertisement mentioned the reservation of the vacancies to be tentative. At the time of allocation it had to be found out by the respondents as per the 100-point roster as to which vacancy is to go to which physically handicapped category. The backlog had also to be taken into consideration and while working out the vacancies which were only tentative when the advertisement was issued, and as per 100-point roster, there has been some variation, no fault can be found with the same.
11. Finding no merit in this Original Application, we dismiss the same, leaving, however, the parties to bear their own costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/