Central Administrative Tribunal - Hyderabad
Chandan Singh vs Dept Of Atomic Energy on 2 February, 2021
OA No.611/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA/021/00611/2020
HYDERABAD, this the 2nd day of February, 2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr. B.V. Sudhakar, Admn. Member
Chandan Singh S/o Birendra Singh,
Aged 33 Years, Occ: Unemployee,
R/o H.No.GE-3, City Centre,
Bokaro Streel City, Jharkhand-827004. ...Applicant
(By Advocate: Mr. B. Laxman)
Vs.
1.Union of India, Rep by its Secretary,
Department f Atomic Energy,
Anushakti Bhavan, CSM Marg,
Mumbai - 400001.
2. The Chief Commissioner,
Court of Chief Commissioner for
Persons with Disabilities,
Ministry of Social Justice & Empowerment,
Department of Disability Affair,
Shastry Bhavan, New Delhi.
3. The Chief Executive Officer,
Nuclear Fuel Complex, Department of Atomic Energy,
ECIL, Moula Ali, Hyderabad-500062.
4. The General Manager,
Nuclear Fuel Complex, Department f Atomic Energy,
ECIL, Moula Ali, Hyderabad-500062.
5.The Deputy Chief Executive Officer,
Nuclear Fuel Complex, Department f Atomic Energy,
ECIL, Moula Ali, Hyderabad-500062.
6.The Assistant Personnel Officer,
Nuclear Fuel Complex,
Department f Atomic Energy,
ECIL, Moula Ali, Hyderabad-500062. ....Respondents
(By Advocate: Mr. V. Vinod Kumar, Sr. CGSC)
---
Page 1 of 17
OA No.611/2020
ORAL ORDER
(As per Hon'ble Mr.B.V.Sudhakar, Administrative Member) Through Video Conferencing:
2. The OA is filed to direct the respondents to re-conduct the exam held for filling up the posts of Work Assistant/UDC in the respondents organization.
3. Brief facts of the case are that the applicant is physically challenged with hands, which are small, having no thumbs. Applicant responded to the notification dated 11.11. 2016 of the respondents to fill up the UDC and Work Assistant „A‟/Hospital Work Assistant „A‟ posts to be filled by the physically challenged. Applicant was issued the admit card on 14.1.2017 and appeared in the exam on 28/29.1.2017. The exam is conducted in two tiers with a time duration of 90 minutes each. On noticing that the respondents have not granted the compensatory time to the physically challenged, applicant sent an email on 16.1.2017 to grant the compensatory time relative to the normal time and that he would not avail the assistance of the scribe. On 28.1.2017, applicant saw the notice board wherein it was displayed that the compensatory time of 30 minutes was allowed to all the candidates irrespective of the physical disability. Applicant did complain to the Chief Commissioner for Persons with Disabilities (for short "PWD") on 1.02.2017 and the same was disposed as having no substance. Applicant filed WP No.4354 of 2018 in the Hon‟ble High Court of Telangana and vide order dt. 04.09.2020, he was directed therein to approach the Tribunal.
The applicant‟s grievance is that since he had physical limitation in writing, the compensatory time has to be granted to candidates like him and not to Page 2 of 17 OA No.611/2020 all. By doing so, candidates, who were not similarly physically challenged had an edge over the applicant, which ultimately led to his non selection. Hence, the OA.
4. The contentions of the applicant are that the advertisement issued by the respondents only sought details about the category of the physically challenged namely, OH, HH or VH and not the nature of the handicap. Allowing compensatory time to all the Physically Challenged candidates is against the instructions contained in OM dated 26.2.2013 issued by the Ministry of Social Justice and Empowerment and the subsequent clarification issued by the Dy. Chief Commissioner, Department of Disability Affairs, on 18.3.2013. Chairs and tables arranged in the exam hall were not suitable. The applicant has been discriminated by granting compensatory time to ineligible candidates, as for example the H.H. and thereby placing him in a disadvantageous situation in taking the exam. The complaint was disposed by the Chief Commissioner for PWD without distinguishing the difference between the two tiers of the exam. The selection process was vitiated from advertisement to the selection.
5. Respondents per contra, submit that against the notification dated 11.11.2016 for filling up the posts of UDC and Work Assistant-A/ Hospital Work Assistant -A, hundreds of applications were received and the eligible were allowed to take the exam on 28.1.2017 in respect of the Work Assistant and UDC on 29.1.2017, at the respondents convention centre. Each exam had two tiers namely Tier -I containing objective type questions and Tier -II is descriptive type and the normal duration time is 90 minutes for each tier and as physically challenged candidates were taking the exam, Page 3 of 17 OA No.611/2020 30 minutes compensatory time was granted to all the candidates as per the OMs dated 26.2.2013 and the clarification given on 18.3.2013. Those qualified in the Tier-I exam, were permitted to take the Tier-II exam. Applicant qualified in Tier-I exam for both the posts and was therefore permitted to take the Tier-II exam. Special arrangements were made like holding the exam in the ground floor, providing separate chairs with writing pads, making available the services of the scribes all throughout the exam and the invigilators made requirement announcements, as well as enquired with the candidates as to whether they had any difficulty in taking the exam. The complaint made by the applicant to the Chief Commissioner for PWD was duly responded and was accordingly closed. Prevalent guidelines have been followed and none of the other candidates raised any objection. Applicant was asked in all the 4 sessions of the exam as to whether he required any assistance. The applicant did not take the assistance of the scribe, though made available and hence, he cannot find fault with the conduct of the exam. Uniformly providing compensatory time of 30 minutes to all the candidates cannot be termed as discriminatory. Applicant‟s name did not figure in the main list and the wait list. Selected candidates have joined the posts.
6. Heard both the counsel and perused the pleadings on record.
7. I. The dispute is about allowing the compensatory time of 30 minutes uniformly to all the physically challenged candidates in taking the exam for UDC/Work Assistant in the exam conducted on 28/29.01.2017. Applicant‟s contention is that the compensatory time has to be allowed only to those candidates, like him, who have limitation in writing the exam. The Page 4 of 17 OA No.611/2020 issue of compensatory time has been dealt by the Ministry of Social Justice in its OM dated 26.02.2013 and the clarification issued on 18.3.2013 by the Dy. Chief Commissioner, Department of Disability Affairs. Relevant portions of the instructions dt. 26.02.2013 are extracted hereunder:
I. There should be a uniform and comprehensive policy across the country for persons with disabilities for written examination taking into account improvement in technology and new avenues opened to the persons with disabilities providing a level playing field. Policy should also have flexibility to accommodate the specific needs on case-to-case basis. II. There is no need for fixing separate criteria for regular and competitive examinations.
III. The facility of Scribe/Reader/Lab Assistant should be allowed to any person who has disability of 40% or more if so desired by the person. IV. The candidate should have the discretion of opting for his own scribe/reader/lab assistant or request the Examination Body for the same. The examining body may also identify the scribe/ reader/lab assistant to make panels at the District/Division/ State level as per the requirements of the examination. In such instances the candidates should be allowed to meet the scribe a day before the examination so that the candidates get a chance to check and verify whether the scribe is suitable or not. V. Criteria like educational qualification, marks scored, age or other such restrictions for the scribe/reader/lab assistant should not be fixed. Instead, the invigilation system should be strengthened, so that the candidates using scribe/reader/lab assistant do not indulge in malpractices like copying and cheating during the examination.
VI. There should also be flexibility in accommodating any change in scribe/reader/lab assistant in case of emergency. The candidates should also be allowed to take more than one scribe/reader for writing different papers especially for languages.
VII. Persons with disabilities should be given the option of choosing the mode for taking the examinations i.e. in Braille or in the computer or in large print or even by recording the answers as the examining bodies can easily make use of technology to convert question paper in large prints, e-text, or Braille and can also convert Braille text in English or regional languages. VIII. The candidates should be allowed to check the computer system one day in advance so that the problems, if any in the software/system could be rectified.
IX. The procedure of availing the facility of scribe should be simplified and the necessary details should be recorded at the time of filling up of the forms. Thereafter, the examining body should ensure availability of question papers in the format opted by the candidate as well as suitable seating arrangement for giving examination.
X. The disability certificate issued by the competent medical authority at any place should be accepted across the country.
XI. The word "extra time or additional time" that is being currently used should be changed to "compensatory time" and the same should not be less than 20 minutes per hour of examination for persons who are making use of scribe/reader/lab assistant. All the candidates with disability not availing the facility of scribe may be allowed additional time of minimum of one hour for examination of 3 hours duration which could further be increased on case to case basis.
XII. The candidates should be allowed to use assistive devices like talking calculator (in cases where calculators are allowed for giving exams), tailor Page 5 of 17 OA No.611/2020 frame, Braille slate, abacus, geometry kit, Braille measuring tape and augmentative communication devices like communication chart and electronic devices.
XIII. Proper seating arrangement (preferably on the ground floor) should be made prior to the commencement of examination to avoid confusion or distraction during the day of the exam. The time of giving the question papers should be marked accurately and timely supply of supplementary papers should be ensured.
XIV. The examining body should also provide reading material in Braille or EText or on computers having suitable screen reading softwares for open book examination. Similarly online examination should be in accessible format i.e. websites, question papers and all other study material should be accessible as per the international standards laid down in this regard. XV. Alternative objective questions in lieu of descriptive questions should be provided for Hearing-Impaired persons, in addition to the existing policy of giving alternative questions in lieu of questions requiring visual inputs, for persons with Visual Impairment.
The guidelines are lucid and as per clause IV, candidates can even have their own scribe and in case the recruiting authority is providing one, the candidate can meet the scribe a day before the exam to assess the suitability of the scribe. Flexibility is provided to change the scribe, as per clause VI and even go in for multiple scribes depending on the need. Thus, the Memo has provided for an extensive use of the scribe. The applicant did not choose to opt for a scribe vide his email, though he has claimed he has limitation in hand writing.
II. Respondents have arranged a pool of scribes from the beginning of the exam till its end for all the sessions. Similarly situated candidates, numbering 21 in all, used the services of the scribe as per their requirement. Applicant rejected the offer of the scribe. Further, clause XI of the memo dated 26.02.2013 provided for compensatory time of 20 minutes per hour of the exam to those candidates who do not take the assistance of the scribe and that the compensatory time can be increased on a case to case basis.Page 6 of 17 OA No.611/2020
In addition the Dy. Chief Commissioner for Persons with Disabilities has clarified on 18.3.2013 that the guidelines issued vide letter dated 26.2.2013 are self explanatory and if any issue arises in their implementation, the same may be resolved by relying on the principle of need based flexibility, keeping in view the need for providing reasonable accommodation or by referring the same to the Ministry of Social Justice and Empowerment. About clause XI, it was adduced in the clarification that the facility of scribe/reader/lab assistant is meant for those candidates with disabilities, who have physical limitation to write including speed. The additional time will be applicable to such candidates.
Respondents have uniformly provided compensatory time of 30 minutes to all the physically challenged candidates. To offset the physical limitation in writing the exam, respondents have provided the services of a scribe. On receiving a complaint from the candidate dated 1.2.2017, the matter has been dealt by the Chief Commissioner for Persons with Disabilities and disposed as under:
"12. It is opined by this Court that in the backdrop of the above mentioned facts, the respondent needs to be more sensitized towards the specific needs of the persons with disabilities and also to be more vigil towards interpretation/ applicability of rules/ guidelines, so as to ensure that no discrimination of persons with disabilities is caused in any manner. However, taking into account that the subject recruitment exercise was a „Special Recruitment Driver for Persons with Disabilities‟, wherein 511 candidates were selected out of 900 candidates and none other than the complainant has complained about the recruitment process and/or facilities provided to the candidates at the examination centre, and also that the complainant had also qualified Tier-I stage of the said examination with the same set of facilities at the very same centre of examination while competing with the other candidates with disabilities appeared for that exam, there appears no reason for sustaining the present complaint of the complainant.
13. The case is accordingly disposed off."Page 7 of 17 OA No.611/2020
It is evident from the above, that 511 candidates were selected out of 900 candidates and none other than the applicant had complained about the recruitment process. In regard to the observation of the Court that when the applicant could easily face the Tier-I exam without much difficulty, there should not have been any difficulty in appearing in the Tier II exam, applicant contends that Tier-I was objective type, involving the process of only circling the correct answer and whereas Tier-II was descriptive requiring the ability to write with required speed, which he could not, in view of the physical limitation he had. Although choosing a scribe is individual discretion, in the given circumstances, the best option available for him was to opt for the scribe, since the recruiting authority cannot change the norm suddenly at the last moment. It must be remembered that there were other candidates, who have taken the exam and they would have a grievance, if the rules of the game have been changed during the course of the exam. It is well settled that once the game starts, the rules of the game cannot be changed. The norm adopted was to allow 30 minutes uniformly for all the candidates and those who had limitation in regard to writing can take the assistance of a scribe. The insistence of the applicant that others, who had no physical limitation in writing, should not have been given the compensatory time, after the game started, is against the observation of the Hon‟ble High Court of Rajasthan in Lalit Kishor vs. State of Rajasthan on 23 October, 2020 in S.B. Civil Writ Petition No. 8908/2020, relying on the verdicts of the Hon‟ble Supreme Court, as under:
"12.1 In K. Manjusree Versus State of Andhra Pradesh & Anr., reported in (2008) 3 SCC 512, the Supreme Court held that the rule of game cannot be changed. In K. Manjusree (supra), the Supreme Court held as under:Page 8 of 17 OA No.611/2020
"27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier resolutions dated 24.7.2001 and 21.2.2002 and held that what was adopted on 30.11.2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them P.K. Ramachandra Iyer v. Union of India MANU/SC/ 0395/1983 : (1984)ILLJ314SC, Umesh Chandra Shukla v. Union of India MANU/SC/0050/1985 : AIR1985SC1351, and Durgacharan Misra v. State of Orissa."
12.2 The aforesaid view was reiterated in Hemani Malhotra Versus High Court of Delhi, reported in (2008) 7 SCC 11 by the Supreme Court holding as under:
"15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal."
Hence, expecting the respondents to change the norm after the exam has started as contended, would be against the legal principle laid by the Hon‟ble Supreme Court.
III. The key question that requires an answer is as to whether the respondents were spot-on in allowing a compensatory time of 30 times uniformly to all the physically challenged candidates. We proceed to examine this by analysing the Memos dt. 26.2.2013 and 18.3.2013 as under. Clause XI of the memo dated 26.2.2013 issued by the Ministry of Social Justice, reads as under: Page 9 of 17 OA No.611/2020
XI. The word "extra time or additional time" that is being currently used should be changed to "compensatory time" and the same should not be less than 20 minutes per hour of examination for persons who are making use of scribe/reader/lab assistant. All the candidates with disability not availing the facility of scribe may be allowed additional time of minimum of one hour for examination of 3 hours duration which could further be increased on case to case basis.
The clause does not make it clear as to whether the candidates who do not avail the services of a scribe have to be granted an additional time of 20 minutes per hour over and above the 20 minutes that has been allowed for candidates who engage the services of a scribe. Any communication has to be clear and specific, which we do not find from a first reading of above clause. It is open to different interpretations.
The letter dated 18.3.2013 speaks of two aspects which require elaboration:
i. The guidelines issued vide memo dated 26.2.2013 are comprehensive and self explanatory. If and when any issue arises in their implementation, the same may be resolved by relying on the Principle of need based flexibility, keeping in view the need for providing reasonable accommodation or be referring to the Ministry.
ii. Regarding clause XI, the facility of scribe/ reader/ lab assistant is meant for only those candidates with disabilities who have physical limitation to write including that of speed. The additional time will be only to such candidates.
A reading of the clause (i) would make it clear that if there is any issue that arises in the implementation of the guidelines formulated in Memo 26.2.2013, the issue can be resolved based on the need based flexibility.
The clause it appears has been added keeping in view the need for reasonable accommodation. The need based flexibility is a Management Principle which speaks of providing flexibility in the Managerial System to adapt to changes based on needs, operations, and management. There are 15 guidelines issued in the Memo dated 26.2.2013 and most of them are not Page 10 of 17 OA No.611/2020 related to accommodation and hence, it can be construed that the principle of need based flexibility applies to any issue including compensatory time. Therefore, banking upon the said principle, respondents gave a uniform time of 30 minutes to all the candidates, since all of them were physically challenged. It was a bonafide decision taken keeping the interests of the Physically challenged as a single class.
The clause (ii) states that the facility of scribe should be extended to those who have physical limitation to write. Respondents did provide the services of the scribe, which the applicant did not avail. In regard to physical limitation, the clarification is scanty. The applicant claims that the HH need not be given the compensatory time. Our view is that the Hearing handicapped respond by sign language and if such a person has difficulty to use the hands to communicate in the sign language and hence is slow, then how do we categorise such a candidate in terms of the physical limitation. Categorise the candidate as one with Hearing disability or one with physical limitation in writing. There is no clarity on this from a reading of the memos cited by the applicant. Therefore, it appears that the Ministry of Social Justice has ushered in the Principle of need based flexibility so that situation specific solutions can be adopted. As the respondents were conducting a special drive for filling up vacancies by the physically challenged, wherein the response was huge, they have taken the stand of extending the compensatory time to all invoking the flexibility principle. The clarification of 18.3.2013 also states that the compensatory time can be increased on a case to case basis. The case can be interpreted as an entire class containing all individuals of a larger group of Physically Challenged Page 11 of 17 OA No.611/2020 in comparison with the normal individuals or a case of creating a class within a class of segregating physically handicapped into microscopic groups with distinct disabilities. The respondents chose the former and went ahead by granting compensatory time of 30 minutes uniformly to all. IV. Though 21 other similarly situated candidates took the assistance of scribe, the applicant did not opt for the scribe. If the respondents were not to provide for a scribe then the applicant would have had a strong case. Not doing so is his own mistake and trying to rub off his consequent failure to the respondents is impermissible under law as observed by the Hon‟ble Supreme Court in A.K. Lakshmipathy v. Rai Saheb Pannalal H. Lahoti Charitable Trust,(2010) 1 SCC 287 , as under:
"they cannot be allowed to take advantage of their own mistake and conveniently pass on the blame to the respondents."
V. Besides, the applicant has compared his performance with that of the marks obtained by the selected candidates and sought the relief to re- conduct the exam, without making them proper and necessary parties. As prayed by the applicant, if the selection is set aside and the exam is directed to be re-conducted, the selected candidates, who acquired a vested right in the posts they joined, would be adversely affected and an order issued without giving them an opportunity to be heard would be a gross infringement of the Principles of Natural Justice. In fact, non-joinder of the necessary party is fatal to the OA, as observed by the Hon‟ble Apex Court in Civil Appeal No. 5987 of 2007 in Public Service Commission, Uttaranchal v. Mamta Bisht & Ors. And Civil Appeal No. 5982 of 2007 Page 12 of 17 OA No.611/2020 State of Uttaranchal v. Mamta Bisht & Ors decided on June 3, 2010 as under:
(b) The last selected candidate in that category was a necessary party and without impleading her, the writ petition could not have been entertained by the High Court in view of the law laid down by nearly a Constitution Bench of this Court in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar & Anr., AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter called CPC) provide that non- joinder of necessary party be fatal. Xxx In Prabodh Verma & Ors. Vs. State of U.P. & Ors. AIR 1985 SC 167; and Tridip Kumar Dingal & Ors. Vs. State of West Bengal & Ors. (2009) 1 SCC
768), It has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties.
The selection list for the UDC was published on 21.3.2017 and for the cadre of Work Assistant on 5.5.2017. The selected candidates are reported to have joined the respondents‟ organisation.
VI. We need also to observe that when a uniform decision is taken by interpreting a provision of a rule, there will be some losers and some gainers. There cannot be a decision which will satisfy all. The definition of physical limitation and its interpretation has complexities which are difficult to be comprehended for all the situations. Considering these aspects, the Ministry of Social Justice & Empowerment, and its associated bodies have thought it fit to allow the need based flexibility principle to operate, to deal with unanticipated situations that arise. The respondents were dealing with the conduct of the exam where hundreds of candidates were appearing and hence, detailing the exam to cater to minute requirements may not have been visualized and hence, it appears that the decision to provide the compensatory time of 30 minutes uniformly to all, Page 13 of 17 OA No.611/2020 relative to normal candidates has been taken. Obviously a decision of the said nature would be beneficial to some and not to some others, as observed by the Hon‟ble Supreme Court in Union of India vs Balbir Singh Turn on 8 December, 2017 in Civil Appeal Diary No.3744 of 2016, in regard to recommendations of the Pay Commissions, when a certain yardstick is interpreted. The relevant para is hereunder extracted:
We are only concerned with the interpretation of the Resolution of the Government which clearly states that the recommendations of 6th CPC as modified and accepted by the Central Government in so far as they relate to pay structure, pay scales, grade pay etc. will apply from 01.01.2006. There may be some gainers and some losers but the intention of the Government was clear that this Scheme which is part of the pay structure would apply from 01.01.2006.
The intention of the Memos issued by the Ministry of Social Justice and Empowerment was that the physically challenged are given the required concessions when competing with the normal individuals in regard to public employment. However, in the instant case, it is among the Physically challenged and the respondents have given a uniform compensatory time of 30 minutes to all the physically challenged candidates. Thus, there has been some gainers and some losers due to the application of the Principle of need based flexibility to the conduct of the exam by the respondents. VII. Other contentions made by the applicant that the tables and chairs provided were not suitable is incorrect, since the respondents provided chairs with writing pads, wheel chairs, scribes, conducting the exam in the ground floor, good light and air etc. If the applicant had any difficulty, he would have brought it to the notice of the respondents to do the needful. Respondents did so for candidates who asked for it, as per the reply Page 14 of 17 OA No.611/2020 statement and the same has not been refuted by way of a rejoinder. Besides, respondents would not know as to what difficulty the candidate is experiencing unless he brings it to their notice. There is no document submitted by the applicant to substantiate that he sought any such assistance during the exam. Therefore, the contention that the tables and chairs provided were not suitable is not maintainable. Moreover, the contention of the respondents that except the applicant none of the other candidates have complained has not been denied by the candidate. Hence, it can be safely concluded that the arrangements made were adequate.
VIII. Finally, the Hon‟ble High Court in WP No.4354/2018 has recorded the stand of the Chief Commissioner for PWD which is pertinently relevant to the dispute. Moreover, the Chief Commissioner for PWD, a specialized body exclusively looking into issues relating to physically challenged, after adjudication on the issue has not intervened on behalf of the applicant and did not find fault with the selection process adopted by the respondents. The observations of the Hon‟ble High Court in the WP cited are as under:
12. The grievance of the petitioner is though as per the procedure of examination, each tier examination was of 90 minutes duration, but the time to writ examination was uniformly extended by 30 minutes to all candidates irrespective of the disability suffered by them without verifying individual capability to write the examination. By such extension, undue advantage is conferred on some of the examinees and caused greater disadvantage to persons like the petitioner who cannot write the exam properly because of his physical disability, and therefore there was in-
equal competition. In support of this contention, petitioner placed reliance on Office Memorandum, dated 26.02.2013 issued by PNR,J W.P.no.4354 of 2018 7 Department of Disability Affairs, Ministry of Social Justice and Empowerment, Government of India.
13. By this Office Memorandum, guidelines are formulated and notified for the purpose of conducting written examination for persons with disabilities. For this case, clause-XI is relevant. It deals with compensatory time. According to petitioner, compensatory time should be extended on case to case basis to persons, who have the disability to write Page 15 of 17 OA No.611/2020 the examination and cannot be uniformly extended to all. The Chief Commissioner found that what is incorporated in the Office Memorandum are broad guidelines and wider discretion is vested in recruiting authority to deal with a situation. In exercise of that discretion, if recruiting authority extended 30 minutes to all the candidates, he cannot interfere and hold the action of recruiting authority as illegal. It is appropriate to note at this stage that this was a special recruitment drive for unfilled backlog vacancies reserved to be filled up by disabled persons and all the candidates who have appeared are disabled persons, though there may be variance in the disability.
14. Thus, the issue that falls for determination is whether recruiting authority grossly erred in granting extension of time uniformly to all the candidates who participated in selections for recruitment for the post notified, and whether the selection is vitiated on that ground.
15. Having regard to the prayer sought even after granting prayer in I.A.No.3 of 2020 to amend the prayer in this writ petition, the decision of the Chief Commissioner cannot be separated from the recruitment process. Further, even if the decision of authority under the Disabilities Act, 2016 is held as not valid, it cannot automatically nullify the selection process undertaken by NFC and necessarily there has to be a declaration to that effect. Therefore it is inseparable. Thus, the issue considered by the Chief Commissioner is directly on the aspect of conducting recruitment examination to public posts.
IX. We agree with the view of the Chief Commissioner that the memos cited do provide for wide discretion to the recruiting authority to deal with a situation. The decision as elaborated above is a need specific approach given the fact that the recruitment was a special drive to fill up the backlog vacancies of the physically challenged. Hence any interference at this stage would be placing the cart before the horse, which obviously is not workable.
X. To summarize, the OA suffers from the non-joinder of necessary party. The applicant‟s own mistake is being thrusted on to the respondents which is impermissible. Rules of the game cannot be changed once the exam commenced. The Principle of need based flexibility was invoked by the respondents in terms of the OMs of Ministry of Social Justice and Page 16 of 17 OA No.611/2020 Empowerment. The Chief Commissioner‟s decision is in favour of the respondents.
XI. Before parting, after going through the case at length, we felt it proper to observe that when large scale recruitments are conducted wherein PH quota vacancies are to be filled up in sizeable numbers, or when the exam is conducted exclusively for the PH, it would be ideal to associate an officer from the Ministry of Social Justice and Empowerment or the file is vetted by the said Ministry or by its subordinate formation, from the pre- recruitment stage, so that the relaxations provided for the Physically Challenged are properly extended giving no room for grievances. XII. Thus, in view of the above circumstances, we do not find any merit in the OA and hence is dismissed, with no order as to costs.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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