Central Administrative Tribunal - Delhi
Sunil Kumr Sharma vs Union Public Service Commission on 29 January, 2014
Central Administrative Tribunal
Principal Bench
OA No. 2508/2012
Date of reserve: 9th January, 2014
Date of pronouncement:29th January, 2014
Honble Shri K.B.Suresh, Member(J)
Honble Shri P.K.Basu, Member (A)
Sunil Kumr Sharma
S/o Mr. Rajendra Pal Sharma
R/o Moh Jawahar Puri,
Behind Police Chowki,
Badaun, U.P.
. Applicant
(By Advocate: Ms. Sweta Rani proxy for Sh. A.K.Shukla)
Versus
1. Union Public Service Commission
Dholpur House, Shahjahan Road,
New Delhi-110069
Through its Chief Secretary.
2. Ministry of Railway,
Railway Board,
Government of India,
Rail Bhawan, Raisina Marg,
New Delhi-110011
Though Chairman.
3. Ministry of Social Justice and Empowerment,
Sarojini House, 6 Bhagwandas Road,
New Delhi-110001
Through its Chief Commissioner.
.. Respondents
(By Advocate: Sh. R.N.Singh with
Sh. R.V.Sinha for respondent No.1
Sh. D.S.Mahendru for respondent No.2
Sh. Rajinder Khatter for respondent No.3)
O R D E R
Honble Dr. K.B.Suresh, Member (J) The Right of differently abled persons to participate in the Nation Building process and the consequent social engineering duty of the informed, responsive and responsible society is the crux of the issue.
2. Applicant is afflicted with Pulse Polio Locomotor disability and in short limping in one leg. We had the benefit of personally seeing him and we made him walk about the Court hall in the presence of learned counsels. We querried Sh. Rajinder Khatter on the type of work to be assigned to the applicant if he was normally selected. It appears that in the situation of potential work situations that can be made available to the applicant, 40% locomotor disability is not an issue at all as the work level required of the applicant is of supervisory nature and does not involve extreme physical exertions. Therefore, we enquired about the requirements of medical fitness and was assured that it was not possible to have a job related medical fitness evaluation scheme except for colour blindness for some selected occupations and the Railway follows only a general pattern. But they have a medical categorization scheme for existing employees and if for some reason; an employee is found unfit for one particular job, provision is there to accommodate him in another position. Thus, being a caring employer, even before the disability act came into being, the Railways as a model employer had devised schemes whereby all such situations can be met. But they would say their rules may not permit a person selected in the general category to be adjusted in disability category by relaxation of medical fitness.
3. Therefore, the Railways would say that it is not for sake of pity that they are unable to give an employment to the applicant.
4. The UPSC would say that the applicant is the finally recommended candidate with Rank 71 in the civil engineering discipline. They would say that applicant was afflicted by Residual Post Polio paralysis of lower limb with limping gait.
5. They would say that Railways had informed that on the basis of Disability Commissioners report, at this stage, they cannot change his status from Non PH to PH. Then also medical fitness lies in the realm of the Railways.
6. In answer to this, it is pointed out by the applicant that under Section 33 of the Disability Act, when even after carrying forward no person with disability is available to be appointed, only they shall a horizontally post under PH shall be made available to a non PH candidate. He would say that out of the 8 posts to be filled by physically disabled, only 6 could be filled and 2 posts are even now vacant.
7. We also heard the learned counsel for Chief Commissioner. It appears that the Honble High Court of Delhi had considered a similar matter. We were taken through the issues involved in both cases. In both cases, meritorious candidates were denied employment on ground of non-clearance of medical fitness bar. But the Honble High Court after examining the spirit and soul of the Disabilities Act and the need to recognize merit and worth of candidates had allowed the cause.
8. As the Honble High Court of Delhi had aptly put it in Secretary, Education vs. Mr. Mukesh Chand and Anr. In WPC 2869 of 2003; when a candidate, even with his physical disability has proven his worth without relying on protective discrimination, it will not proper or ethical to disregard it.
9. In U.P. Power Corporation vs. Sant Steels reported in AIR 2008 SC 693, it was held that the government and its instrumentalities should abide by their commitments. The fundamental polity envisaged in Directive Principles of State Policy will become redundant unless we understand the concept of The Soul of Spirit of Law.
10. The disabilities Act was result of awakening wisdom that more needs to be done about differently abled. When we construe such a welfare legislation, we must have in mind the intent of the Act and the intended beneficiary of the Act. Therefore, the legitimate concern of the Society is protection of the under privileged. It increases in stature when such beneficiary is able to secure meritoriously a post held even in the tougher general category. This is more so as by appointing applicant no intended disabled will be affected as even now two posts are vacant.
11. The Honble Apex Court in Epuru Sudhakar and another vs. Govt. of A.P. reported in 2006 (8) SCC 16 held that the ethos of government according to law requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. So what are these basic principles.
(1) He was selected in a non discriminated and merit oriented selection process and thereby satisfies the ultimate pubic interest of being able to provide the best service possible.
(2) His disability may not have any relevance to the work situations to which he may be subjected to.
(3) Just because he assumed, in the light of job requirements, that his disability may not be a relevant issue, the merit obtained by him cannot be overlooked.
(4) The view expressed by the Disabilities Commissioner is of special merit.
(5) On appointment, he will not throw out any other competent differently abled as there are two more vacancies to be filled and in any case he is apparently more competent than any.
(6) The soul and spirit of the law is an important concern.
12. These being the basic concept which should have weighed with the Railways especially in view of the fact that even before the Disability Act came into being they had a medical decategorisation system.
13. As the great Judge, Honble Justice P.B.Gajendra Godbar, former Chief Justice of India said, As soon as the Democratic State embarks upon the adventure of achieving the Ideals of a welfare state, it ceases to be passive. (in Law, Liberty and Social Justice, Asia Publishing House, (1965) page 64)
14. The Right to life and livelihood is a social commitment of the constitutional process. For minor technical reasoning this greater issue cannot be allowed to be tempered.
15. Therefore, we direct the Railways to constitute a Medical Board for medical categorization of the applicant and in accordance with its findings and the rank obtained by the applicant to accommodate him in a position he could have obtained earlier within next two months. Original Application is thus allowed. No costs.
( P.K.Basu ) ( Dr. K.B. Suresh ) Member (A) Member (J) sd