Central Administrative Tribunal - Chandigarh
Unknown vs Chief General Manager on 9 March, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
CIRCUIT BENCH AT SHIMLA
OA No. 063/00162/2015
Date of order : 09.03.2017
CORAM: HONBLE MR.JUSTICE M.S. SULLAR, MEMBER(J)
HONBLE MRS.RAJWANT SANDHU,MEMBER(A)
Sh. Rishu Kumar Bains S/o Sh. Ramesh Chand, R/o Village Chak Naglian, P.O. Kandrori, Tehsil Indora, District Kangra, H.P.
.Applicant
BY ADVOCATE: Sh. Rajneesh K. Lal
VERSUS
1. Chief General Manager, Telecom, HP Circle, Block No. 11, SDA Complex, Kasumpti, Shimla 9.
2. Assistant Director Telecom (HR) (Admn.) BSNL, Kasumpti, Shimla 9.
..Respondents
BY ADVOCATE: Sh. Adarsh Sharma
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER(A):-
1. The present OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s):-
(i) To quash and set aside letter dated 30.09.2015 (Annexure A-5) whereby the candidature of the applicant was cancelled and further also to set aside the Annexure A-7, letter dated 30.10.2015, whereby the representation of the applicant has been rejected by the respondents.
(ii) The respondents may also be directed to consider the fresh disability certificate dated 03.11.2015 (Annexure A-8) issued in favour of the applicant and further in light of this certificate consider the candidature of the applicant for the post of Junior Telecom Officers (Telecom) under Special Recruitment Drive (SRD) for persons with disabilities (PWD) in the category of PWD (LI) or in the alternative the respondents may be directed to constitute a fresh State Medical Board to re-examine the applicant to assess his disability if the respondents are not satisfied with the re-examination certificate dated 03.11.2015.
2. It is stated in the OA that the respondents issued a Recruitment Advertisement dated 15.07.2014 (Annexure A-1) for the post of Junior Telecom Officer (Telecom) under Special Recruitment Drive (SRD) for the persons with disabilities (PWD) JTO (SRD) 2013. The last date of receipt of application was 05.09.2014 and in the advertisement, five posts of Junior Telecom Officers in Himachal Pradesh Telecom Circle were advertised which were to be filled by persons with disabilities. The posts were to be filled through an open competitive examination which was scheduled to be held on 23.11.2014. The number of vacancies in total was five which was divided into two categories i.e. two posts were reserved for the category of persons with disability (LI) PWD (Locomotive Impairment) one arm or one leg or both legs affected and three posts were reserved for the 2nd category which was for the persons with disabilities (PWD) (HI) (Hearing Impairment Partially Deaf). In pursuance to the advertisement dated 15.07.2014 issued by the respondents, the applicant applied for the said post under the category of (PWD) (LI). The applicant was declared successful provisionally under the category of LI (PWD). The copy of the result dated 31.03.2015 is annexed (Annexure A-2).
3. On 14.04.2015, the respondents issued a letter to the applicant for submission of certain documents which were necessary as there were the pre-appointment formalities which were to be completed by the applicant before initial training of JTO (Annexure A-3). The applicant submitted his documents alongwith disability certificate with the respondents on 15.04.2015 (Annexure A-4). After the consideration and scrutiny of the documents, the respondents issued a letter dated 30.09.2015 (Annexure A-5) to the applicant whereby, the candidature of the applicant for the post of JTO (SRD) 2013 was cancelled stating that after examination of the document as submitted by the applicant, it was found that the applicant did not fulfill physical disability conditions as detailed in the advertisement dated 15.07.2014 and hence all the original documents as submitted by the applicant were returned to him.
4. It is further stated that after the applicant received the letter dated 30.09.2015, he took up the matter with the respondents regarding the cancellation of his candidature on which he was apprised by the respondents that the disability certificate as submitted by the applicant showed that the Medical Board had found him as suffering in both legs and both arms. However, perusal of the disability certificate dated 04.04.2015 clearly showed that the Medical Board had given a contradictory finding as on the one hand it was held that the percentage of disability suffered by the applicant was 90% and he was affected in both legs and both arms and on the other hand, the findings of the Medical Board regarding the physical requirement as needed for discharge of the applicants duties was given in favour of applicant. The respondents did not consider the disability certificate issued by the Medical Board in its entirety but decided to read only that part which was contrary to the actual position.
5. After the candidature of the applicant was rejected vide Annexure A-5, the applicant represented the matter by way of representation dated 09.10.2015, whereby the applicant prayed that he wants to get himself examined again from the State Medical Board at Shimla so that the contradictions which had arisen in the previous certificate dated 04.04.2015 may be set at naught. Despite this, the application of the applicant dated 09.10.2015 was rejected on 23.10.2015 (Annexures A-6 & A-7). A Medical Board was later constituted on 03.11.2015 on which date the applicant was re-examined and a final disability certificate dated 03.11.2015 (Annexure A-8)was issued in which the applicant was held to be suffering from LI (Hand) RI (Hand). The conclusion of the Medical Board was to the effect that the applicant was suffering from weakness of grip on Left Hand in Grade 4, and weakness of Grip in Right Hand Grade 4. The meaning of Grade-4 is full active range of motion and reduced muscle resistance which is evident from the definition as given by Medical Research Council for measuring hand muscles. The applicant was denied his candidature only on the ground of a contradictory disability certificate dated 04.04.2015, whereas perusal of the 2nd disability certificate issued by the State Medical Board on re-examination of the applicant made it evident that the applicant was suffering from 90% disability but was held to be suffering from the LI Hand Grade 4 and RI Hand Grade - 4 .
7. The applicant has also annexed his provisional degree certificate issued by the National Institute of Technology, Hamirpur, that shows that the applicant has completed B.Tech Degree Programme in the discipline of Computer Science and Engineering with the cumulative grade point index of 6.29 on a 10 point scale in 2013. The certificate dated 27.08.2013 is annexed (Annexure A-9). Hence this OA.
8. In the written statement filed on behalf of the respondents, it has been stated that the candidature of the applicant was rightly rejected as the applicant does not come under the Person with Disability LI i.e. Loctomotor Impairment. As per the advertisement dated 15.07.2014, the persons whose one arm or one leg or both legs are affected, are to be considered against the vacancies advertised under Person with Disability LI. As such, the candidature of the applicant was rightly rejected. The documents submitted by the applicant were taken into consideration and after properly appreciating the same, the decision was taken by the competent authority. The case of the applicant was examined by the Committee constituted by the replying respondent to assess the discrepancies in the document submitted by the applicant as well as one another person. The Committee found that as per the Recruitment Advertisement No. HRD/R&E/SRD/JTO-2013/66 dated 15.07.2014 of HORD Section of Circle Office for Recruitment of JTO (T) under Special Recruitment Drive for Persons with Disabilities for PWD J.T.O. (SRD)-2013 candidates with following locomotor disability were allowed: one arm or one leg or both legs affected, whereas as per medical certificate of the candidate, his both legs and arms are affected. Hence he does not fulfill the permitted physical disability condition.
9. Arguments advanced by learned counsel for the parties were heard when learned counsel for the applicant pressed that the applicant even as per the Disability Certificate recorded by the State Medical Board on 03.11.2015, could easily perform the duties of the JTO. He pressed that the applicant was a first divisioner B.Tech (Computer Science) from the reputed NIT , Hamirpur and since much of the work of BSNL related to IT, the applicant could easily perform such duties as would be assigned to him. Learned counsel also referred to the report of the Medical Board from which it was evident that the strength of the applicants limbs was such that he could perform some movements easily. He could not be considered to be 90% disabled.
10. The applicant also appeared before the Bench and requested that he be given the opportunity to work as JTO as he held the requisite eligibility qualifications and for which post he had qualified the competitive exam. Although speech of the applicant is not very clear but he can walk reasonably well. From the material on record, it is clear that the applicant can write and he can use the computer competently.
11. Certainly, some of the JTOs in the BSNL would be performing desk jobs. The applicant appears to be fully capable of handling computers and IT work as well as performing desk duties involving limited mobility. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is a forward looking piece of legislation intended to protect the interests of the persons with disabilities. The reservation in jobs in Government and Public Sector Undertakings has been provided for PWDs so that persons who hold the requisite qualifications, can apply and be selected for the jobs identified as can be performed by a person with the indicated disability and they can lead a life of dignity. In the case of JTO, the post had been identified for persons with locomotor disability as one arm or one leg or both legs being affected while in the case of applicant, all four limbs are somewhat affected. However, the weakness of the limbs of the applicant is not such that he cannot perform the duties of the JTO.
12. Although, the matter could have been referred to BSNL for reconsideration of the case of the applicant, but this may only result in further litigation and prolonging the agony of the applicant. Hence, the respondents are directed to offer appointment to the applicant as JTO since he has qualified as per the written examination and it is only the factum of his four limbs being somewhat affected by Cerebral Palsy that his case for appointment as such has been rejected. Action in this regard may be completed within one month of a certified copy of this order being served upon the respondents. OA is disposed of accordingly. No costs.
(RAJWANT SANDHU) MEMBER(A) (JUSTICE M.S. SULLAR) MEMBER(J) Dated: 09.03.2017 ND* 1 O.A. 063/00162/2015