Central Administrative Tribunal - Delhi
Bharath Kumar V vs Social Justice And Empowerment on 7 January, 2025
1
Item 38 OA No.669/2023
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.669/2023
Order Reserved on:12.12.2024
Order Pronounced on :07.01.2025
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
1. Bharath Kumar V
S/o Sh, M Veerbathran,
Aged 29 years,
R/o 174, 10th Main,
4th Cross, Duo City Layout,
Basapura Road, Electronic City,
Bangalore-560100 ... Applicant
(By Advocate :Ms. Roma Bhagat)
VERSUS
1. Union of India
Through the Secretary,
Ministry of Social Justice and Empowerment
Shastri Bhawan, New Delhi-110001
2. Department of Personnel and Training (DoPT),
Through its Secretary,
Ministry of Personnel, Public Grievances
and Pensions. North Block,
New Delhi-110001.
3. Union of India
Union Public Service Commission (UPSC)
Through its Secretary, Dholpur House,
Shahjahan Road,
New Delhi-110069
Union of India.
4. Ministry of Railways (Railway Board)
Through its Secretary, Rail Bhawan,
Raisina Road, New Delhi, 110001
Union of India
2
Item 38 OA No.669/2023
5. Ministry of Defence
Through its Secretary,
North Block,
New Delhi, 110001
Union of India
6. Shinde Sunil Rajendra
C/o Rajendra Shinde,
R/o C-401, Tulsi Prerana, Sector-1,
Khanda Colony, Panvel, Raigad
Maharashtra-410206
Email Id: [email protected] ...Respondents
(By Advocate : Mr. Pradeep Kumar Sharma)
ORDER
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J):
The present Original Application has been filed by the applicant aggrieved by the denial of Service Allocation to him by Respondent No.2, despite clearing the UPSC Civil Service Examination, 2019 (hereinafter referred to as "CSE-2019") based on a Technical Nomenclature (in the form of an arbitrary and erroneous Functional Classification, introduced by the Respondent No.1 and notified by the Respondent No.2 in CSE- 2019 Notification. This nomenclature creates an artificial sub- categorization within the broad Disability Categories), which not only goes against the mandate of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the "RPwD Act, 2016") and various judicial pronouncements.
2. Facts in brief are that on 19.02.2019, respondent no.2 issued the Notification calling for the applications for various 3 Item 38 OA No.669/2023 aspirants for CSE-2019. The applicant is a person with a Benchmark disability (PwBD) and appeared in CSE-2019 as a candidate in the PwBD-1 category (Locomotor Disability) having 60% disability. Applicant had appeared against Roll No.1232286. In the said Notification, a set of Functional Classification by sub-categorising the broad disability categories and a set of physical requirements has been prescribed. This means the disabilities have been broadly categorised as Locomotor Disability (LD), Visual Handicap (VH), and Hearing Impediment (HI).The candidates claiming reservation under the Persons with Disability Act will be categorised into these three categories and are expected to perform physical tasks as per requirement. Besides, the physical requirements a Functional Classification has also been provided against each disability.
3. The applicant, after undergoing the rigorous selection process and having successfully cleared the Main Exam (2019), qualified for the personality test and was called for the same on 19.02.2020. On 20.02.2020, the applicant was asked to report to the Safdarjung Hospital for a detailed medical examination and thereafter was asked to undergo a second medical examination on his disability at the All India Institute of Medical Sciences (AIIMS) for disability-specific medical examination by the Specialized Medical Board for PwBDs. The Safdarjung 4 Item 38 OA No.669/2023 Hospital issued the medical report on 20.02.2020, and on 21.02.2020 the AIIMS Special Medical Board also issued its certificate. The Specialized Medical Board AIIMS in their Report dated 21.02.2020 has stated that the applicant has Muscular Weakness (MW) in both legs and Arms (BLA) and the percentage of his disability is 60% which makes him a PwBD as per the RPwD Act, 2016. The applicant was assessed for the physical tasks which he was capable of performing e.g. Sitting, Standing, Walking, Manipulation by fingers etc. The applicant was found to meet all the physical requirements (Physical Tasks) that he was required to perform for the effective and efficient discharge of his duties as an officer, except Jumping (which is not a criterion enunciated as a physical requirement for the Applicant‟s preferred services). For the sake of clarity, it is stated that his disability is only on account of compromised strength in both his arms and legs due to Muscular Weakness.
4. After the medical examination, the applicant was given the medical clearance and was allotted the All-India Rank (AIR) of
811. The applicant‟s AIR in the Locomotor Disability category was 15. The total number of vacancies in CSE-2019 in the LD category was 17. The different physical requirements have been notified against each All India Services participating in the CSE- 2019. As per the rank of the applicant, he could have qualified 5 Item 38 OA No.669/2023 for Indian Railway Traffic Services (IRTS) and AFHQS. The physical requirements for the same are:-
1.IRTS: S, ST, BN. W, SE, MF, C, RW, PP, H
2.AFHQS: S, ST, W, BN. MF,SE, RW. H, C.
5. Thus the applicant is required to perform the above-
mentioned physical tasks/activities against each service for effective discharge of his official duties in IRTS and AFHQS. The applicant fulfils all the physical requirements as affirmed by the Specialized Medical Board of AIIMS in its report dated 21.02.2020.
6. The first iteration list was issued on 25.09.2020. The applicant was not allotted any service. Thereafter the applicant sent a representation on 26.09.2020 requesting allocation of service, however, no response was received. On 06.10.2020, the second iteration list was released, however, the applicant was still not allotted any service. By an oral response from the office of respondent no.2, he was informed that although he fulfils the Physical Requirements, he does not fulfil the Functional Classification for the post as per his rank. As such the service had not been allocated to him.
7. The applicant approached this Tribunal in OA No.963/2021 titled "Bharath Kumar V Vs. Union of India"
praying for the allotment of service. This Tribunal vide order 6 Item 38 OA No.669/2023 dated 25.08.2022 directed the applicant to file a detailed representation agitating his grievance with further direction to respondent no.2 to dispose of the said representation within a period of 8 weeks.
8. On 23.01.2023, the impugned order was issued by respondent No. 2 rejecting the representation of the applicant. The said impugned order dated 23.01.2023 is challenged by the applicant in the present OA seeking the following relief(s):-
"i. Declare the "Functional Requirements" prescribed in the identified posts for the PwBDs as given in the Notification bearing No. 16- 15/2010-DD-III dated 29.07.2013, which was revised vide a Notification bearing No.38-16/2020-DD-III dated 04.01.2021, issued by the Respondent No.1 as ultra-vires and strike it down;
ii. Quash the Order bearing No.13015/07/2020-AIS-I dated 23.01.2023 issued by the Respondent No.2 to the Representation dated 18.10.2022 as being capricious and ultra-vires;
iii. Quash the OM bearing No.2020/E(GR)I/4/2 dated 24.11.2022 issued by the Respondent No.4 as being capricious and ultra-vires;
iv. Declare the Sub-Categorization (in the form of Functional Classification) within the Categories of Disability (LD, HI and VI) as given in the CSE-2019 Notification dated 19.10.2019 as ultra-vires and quash the said CSE-2019 Notification to that extent;
V. Issue directions to the Respondent No.2 to allocate the last remaining seat in Indian Railways Traffic Service (IRTS) at the earliest as per the Applicant's rank in the merit list with all service benefits from the date of the appointment;
vi. Alternatively, direct the Respondent No.2 to allocate the seat of the Respondent No.6 to the Applicant;
vii. Alternatively, issue directions to the Respondent No. 2 to appoint the Applicant against a supernumerary post with all service benefits as per the mandate of the Judgement in the matter Pushkar Singh vs University of Delhi (2001);
viii. Pass any other order(s) as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case."7 Item 38 OA No.669/2023
9. The counsel appearing on behalf of the applicant has argued challenging the Functional Classification which has been attached to the various categories of the posts/services identified to be filled up by persons with disability. For easy reference, the relevant extract of the service with Functional Classification and physical requirements as notified in the Advertisement issued by the UPSC on 19.02.2019 is reproduced herein :-
"A list of Services Identified suitable for persons with Benchmark Disability along with the Physical Requirements and Functional Classifications.
Sl. Name of Category(ies) for Functional Physical
No. the Service which Identified Classification Requirements
13 Indian (i) Locomotor OA, OL, S, ST, BN, W,
Railways Disability Leprosy SE, MF, C, RW,
Traffic Cured, Acid PP, H
Service Attack Victim
18 Armed (i) Locomotor OA, OL, MW, S, ST, W, BN,
Forces Disability OAL, Cerebral MF, SE, RW,
Headquarte including Palsy, Leprosy H, C
rs Civil Cerebral Palsy, Cured,
Service, Gr. Leprosy Cured, Dwarfism,
'B'(Section Dwarfism, Acid Acid Attack
Officers' Attack Victims Victims
Grade) BLOA, BL S, SE, H, RW, C
(ii) Blindness B S, ST, W, BN,
and Low Vision MF, RW (in
Braille/software),
H, C
LV S, ST, W, BN,
MF, RW, H, C
(iii) Deaf and FD, HH S, ST, W, BN,
Hard of Hearing MF, SE, RW, C
OA-One Arm, OL-One Leg, HI-Hearing Impaired
(Abbreviations:- S(sitting), ST(standing), BN (bending), W (Walking), SE (seeing), MF (manipulation by fingers), C (Communication), PP (Pushing & Pulling), HS (hearing/speech) and RW (readings and writing) 8 Item 38 OA No.669/2023
10. From the above chart, it is clear that the person with Locomotor Disability can be appointed in the IRTS with the Functional Classification OA(One arm), OL(One Leg), Leprosy Cured, Acid Attack Victims. While being locomotor disabled, the person should fulfil either one of the Functional Classification of OA (one arm), OL(one leg ) and should be able to fulfil the physical requirement of S, ST, BN, W, SE, MF, C, RW, PP, H. Although the applicant fulfils the physical requirements and can complete the tasks, he does not fulfil the functional classification since he is a BLA (Both Legs and Arms Affected).
11. Counsel for the applicant submitted that the Functional Classification has been challenged as being arbitrary and a roadblock to appointments of disabled persons, and the same has an effect of imposing further restrictions by Cadre Controlling Authorities, not being the nodal ministry in the categorization and identification made by the nodal ministry, i.e. Ministry of Social Justice. She further stated that it is arbitrary on the grounds of parity since different cadre controlling authorities have, for the same job description, identified different functional requirements, which would make one or all sets of requirements arbitrary.
9Item 38 OA No.669/2023
12. Further in the subsequent examination CSE-2024, the advertisement that appeared amended the list of functional requirements, in order to remove this challenge of parity. It is the applicant‟s submission that this is a tacit admission that the challenge was a valid one in respect of the 2019 UPSC CSE advertisement.
13. Counsel further submitted that one Mr. Manish Aggarwal, who was an aspirant in the year 2022, has been appointed in the IRMS cadre in the Locomotor Disability Cerebral Palsy (LDCP) category. It is pertinent to note here that Railway Services by the year 2022 were clubbed together in the IRMS cadre. As such, the fact that Mr. Manish Aggarwal in the year 2022 was appointed in the LDCP category against IRMS cadre, also elucidates the fact that the respondents themselves are aware of the arbitrariness of their own sub-classification. It is a fact that IRMS in 2022 in the technical nomenclature of functional classification did not contain the words BLA i.e. both legs and arms. Mr. Manish Aggarwal who was appointed to IRMS was affected in both legs and arms. This situation applies mutatis mutandis to the current applicant who is also affected in both legs and arms and seeking appointment to IRTS, one of the three cadres amalgamated into IRMS in 2022. However, unlike Mr. Manish Aggarwal in 2022, the present applicant has been 10 Item 38 OA No.669/2023 denied the said appointment on the basis that he doesn't qualify since BLA is not listed. He doesn't meet the requisite eligibility criteria as the post isn't eligible for candidates affected in both legs and arms. In that case, in 2022, IRMS not being available to candidates affected in both legs and arms could not have been given to Mr. Manish Aggarwal.
14. It is submitted that this sub-categorisation, which may stop a deserving candidate, despite being able to perform all the activities required to discharge his duties in a particular post, from being appointed is also arbitrary. The Supreme Court in the Indira Sawhney & Ors. V. UOI AIR/1993/SC/477 case recognized that under the mandate of Article 16 of the Constitution, positive discrimination in the form of reservation needs to be afforded to persons with disabilities for them to achieve economic independence and to bring them at par with mainstream candidates.
15. In this backdrop, arbitrary hurdles such as the technical nomenclature or functional classification are ultra vires as they frustrate the mandate of Section 34 and Article 14, 15 and 16 of the Constitution.
16. Furthermore, it was argued that the Act also has a provision for creating "supernumerary posts" and, therefore, a successful candidate who qualifies, cannot be rejected but has 11 Item 38 OA No.669/2023 to have a supernumerary post created for him/her. In the event, that there is no identified post to adjust them and a vacancy arises in an identified post, he/she must be adjusted against the said vacancy.
17. In this instant case, the applicant was placed at Rank No.
811. The candidate at Rank No.812 also belongs to the LDCP category, but because of the technical nomenclature, the applicant could not be appointed in IRTS. It is submitted that since there was a locomotor disability seat available, it could not have gone to a candidate with a lower rank than the candidate. In this case, if the applicant was deemed unsuitable for any reason, he should have been given the seat to which he had qualified. If a cadre could not be allotted to him, he should have been placed in the supernumerary category for adjustment in the later stage to a post for which he was found eligible, as and when the vacancy arises.
18. The respondents have filed their counter affidavit and are contesting the Original Application.
19. The respondents no.1 i.e. DOP&T has stated as under:-
"That the name of Shri Bharath Kumar V (Applicant herein) was recommended by the Union Public Service Commission (UPSC) at Sl. No. 811 under Locomotor Disability and Cerebral Palsy (LDCP) sub- category of Persons with Benchmark Disability (PwBD) on the basis of Civil Services Examination (CSE) -2019."12 Item 38 OA No.669/2023
20. Further it was stated that the Civil Services Examination (CSE) is the combined examination conducted annually by UPSC, for recruitment to about 24 participating services which include Indian Administrative Service, Indian Foreign Service, Indian Police Service, Central Civil Services, Group 'A' and Central Civil Services, Group 'B'. The Cadre Controlling Authorities (CCAs) for the said Services are various Ministries/Departments under the Government of India. It is submitted that the concerned Cadre Controlling Authorities determine the number of vacancies to be filled in the respective Services/posts during a particular CSE year and intimate the same to UPSC as well as DOPT, including those meant for PwBD category (i.e., Locomotor Disability & Cerebral Palsy (LDCP), Visually Impaired (VI), Hearing Impaired separately (HI) and Multiple Disabilities.
21. Rule 21 and the Appendix IV of the CSE Rules 2019 prescribe the Functional Classification and Physical Requirement (FC&PR) required for the services reserved for PwBD category candidates.
22. Respondents admit that the applicant has been examined by the competent Medical Board set up to examine the candidates claiming reservation under the Disability Act. The applicant upon such examination has been found and declared 13 Item 38 OA No.669/2023 a person with disability under Locomotor Disability with quantified disability of 60%.
23. The disability of the applicant as per the Medical Board report of Safdarjung Hospital/AIIMS is as under :-
Name Name of Percentage Functional
of Physical
(Shri) & CSMB Disability Classification Requirements
Rank (FC) (PR)
Roll No.
Bharath Safdarjung 60% BLA (Both S, ST, W, SE, H.
Kumar Hospital/AIIMS Legs and RW, C, MF, PP, L,
V Rank Arms KC, BN. M, CL
811 affected
1232286
24. Respondents stated that the applicant being FC as BL and BA/BLA, could have been adjusted in the two services, namely, IAS and ICAS. The same as under:-
Sl. Servic Number Functional Physical
No. e of Classification Requirements
Vacancie
s
1 IAS 2 OA, OL, BA, BH, MW, S, ST, W, SE, H, RW,
OAL, Cerebral Palsy, C
Leprosy Cured,
Dwarfism, Acid
Attack Victims
BLA, BLOA, BL S, SE, H, RW, C
5 ICAS 1 OA, Leprosy Cured, S, ST, W, SE, H, RW,
Dwarfism, Acid C,
Attack Victims MF, PP,L,KC, BN
BA, BH S, ST, W, SE, H, C,
KC, BN
OL, BL, OAL, BLOA S, SE, H, RW, C, MF,
PP, L
MW S, SE, H, RW, C,MF
BLA S, SE, H, RW, C
25. The respondents have stated that a candidate with BLA disability could be considered for allocation only to IAS and 14 Item 38 OA No.669/2023 ICAS. The details of the candidates who have been allocated to services against vacancies reserved for LDCP under PwBD category are as under:-
S. Rank Name (Shri/Sh.) Category Sub Category Service No. allocated 1 504 SHOBIKA S S O.B.C. LDCP IAS 2 532 PRAFUL DESAI EWS LDCP IAS 3 696 KUMAR SAUMYA General LDCP IRS (IT) 4 720 ANIMESH RANJAN General LDCP IA&AS 5 792 ABHISHEK SINGHAL General LDCP IRTS YADAV SATYAJEET 6 801 MADAN General LDCP IRAS 7 803 RAHUL R O.B.C. LDCP IPoS 8 805 SANDEEP General LDCP ICAS 9 806 SAPNA KUMARI O.B.C. LDCP IPoS KARANBIR SINGH 10 807 CHOHAN O.B.C. LDCP AFHQCS 11 808 SAHIL BANSAL General LDCP IRTS 12 809 SALONI MITTAL General LDCP IRTS MAHAJAN SAMEER 13 810 VIJAY General LDCP IPoS SHINDE SUNIL 14 812 RAJENDRA General LDCP IRTS
26. Three candidates who are BLA, under PwBD, and have been allocated the services are at a higher All India Rank than the applicant. Thus, the three vacancies, 2 in IAS and 1 in ICAS, which had been notified with Functional Classification of BLA have been filled by three candidates having a higher rank.
27. Since the applicant was lower in rank, he could not have been appointed against the vacancy reserved in his category. Further, respondents have stated that this Department‟s role is limited to the allocation of services to the eligible PwBD candidates keeping in view their rank in the All-India merit list 15 Item 38 OA No.669/2023 as recommended by UPSC in the final result, preferences indicated by them for various participating services, medical status, availability of vacancies in their category at their turn and fulfilment of the special eligibility criteria in case of the PwBD candidates in terms of Functional Classification (FC) and Physical Requirements (PR), consistent with requirements of the identified service/post as may be prescribed by its Cadre Controlling Authority as mentioned in the Appendix-IV of the Civil Services Examination Rules every year.
28. It is submitted that, merely, securing a rank in the final merit list only does not confer any right on any candidate to get allocated to a particular service of his/her choice. This is because Medical Examination is an integral part of the CSE process and until and unless the candidate has undergone medical examination and his final medical findings are available with this Department, he cannot be considered for service allocation.
29. It is also submitted that Service allocation to lower rank candidates depends upon the service allocation of higher rank candidates, meaning thereby that service allocation is a chain reaction process and this has a cascading effect on service allocation of lower rank candidates.
16Item 38 OA No.669/2023
30. An attempt was made by the DOP&T through the Cadre Controlling Ministry to relax the Functional Classification for IRTS and AFHQ. Ministry of Railways vide its OM No. 2020/E(GR)I/4/2 dated 24.11.2022 has informed as under:
" .... as per Civil Services Examination Rules notified for CSE-2019 (including IRTS), the said service has not been identified suitable for being manned by Persons with Benchmark Disabilities (PwBD) candidates with FC as BLA (Both Legs and Arms affected). CSE-2019 Rules allows direct Recruitment of PwBD with Locomotor Disability (LD) - One Arm (OA)/One Leg (OL), Leprosy cured. Acidattack Victims of sub-categories of disabilities.
2. In view of the above, DoP&T's request for relaxation of FC for IRTS is not feasible of acceptance in case of Sh. Bharath Kumar V (Rank-811) and hence he cannot be considered for appointment to IRTS on the basis of CSE-2019."
31. Ministry of Defence vide its letter No. A/49820/CSE- 2019/CAO/R-1 dated 04.01.2023 has informed as under:
"It is intimated that DoP&T vide OM No. 29062/12/2021-AIS-I dated 14 October 2021 (copy enclosed) had intimated about non-blocking of any vacancy in SO grade of AFHQ CS from CSE2017 to CSE-2019. In view of the position intimated by the DoP& T, the unfilled vacancies of PwBDs for the CSE-2017 to CSE-2019 has been re- projected in CSE-2022 in compliance of DoP&T OM No. 29062/12/2021-AIS-I dated 14th October 2021 (copy enclosed). Therefore, the said vacancies doesn't exist as on date."
32. Given the above, respondents have requested to the Tribunal that the OA be dismissed.
33. In support of his claim, counsel for the applicant has relied on the following decisions:-
(i) Om Rathod Vs. The Director General of Health Services &Others Civil Appeal No.12110 of 2024 dated 25.10.2024.17 Item 38 OA No.669/2023
(ii) Shweta Bansal Vs. Union of India &Ors. WP(C) No.5367/2014 & CM No.10688/2014 dated 29.07.2016.
(iii) N. Manjushree Vs. Union of India and Ors. OA No.353 of 2010 dated 03.06.2011.
34. In Om Rathod Vs. The Director General of Health Services & Others, Civil Appeal No.12110 of 2024, the Hon‟ble Supreme Court of India in paras 23, 26, 28, 40, 60 (b) has held as under:-
"23. The intention of the guideline in using the term „brought below 80%' is ostensibly to mean that the functional assessment shall evaluate if the person with disability can perform the tasks which they are expected to perform as a student and a practitioner. The assumption in using the phrase 'below 80%' defeats the purpose of the guideline which is to allow candidates into the MBBS course on a case by case basis. Bodies are not biological parts put together - each to serve a pre-determined role. They are alive with thoughts, feelings, dreams and aspirations. All bodies - abled and disabled - are guaranteed dignity under the Constitution. A person with disability has to navigate the rigours of a society which was modelled on the premise of their absence. The disability of a person is a reflection on the inaccessibility of the society and not a comment upon the individual. A person does not overcome disability but learns to navigate life with it. Disability is not a thing to be overcome or brought down, but an attribute to be acknowledged and accommodated. The use of the term 'brought below 80%,' as well intentioned as it may be, fails at this foundational premise. One cannot assume that all persons with more than 80% locomotor disability are incompetent to pursue medicine when their functional abilities have not been assessed. The medical model of disability apparent in the phrase must give way to a social model of disability which takes into account the variety of experiences and outcomes which persons with disabilities have when they interact with different kinds of societies and accommodations.
(26) The Act harmonises the Constitutional promise of full citizenship with action by creating a framework in which persons with disabilities may translate their rights into remedies. To establish a bed of rights, Section 2 of the Act defines and acknowledges barriers, discrimination, 10 inclusive education and reasonable accommodation, Section 3 of the Act affords the right to equality and non-discrimination for persons with disabilities. The requirement of assessing the functional competence of a medical aspirant with over eighty percent locomotor disability recognises that assessment must 18 Item 38 OA No.669/2023 be done on a case to case basis. The method of assessment by designated Disability Assessment Boards must therefore reflect the approach and intent of the legal framework within which the Boards operate. An assessment for functional competency entails an analysis of the skill set which a person with disability must learn in order to compete and pursue the medical course. This is a marked difference from requiring a specific manner which a candidate must use to achieve the outcome. For example, a functional competency model would require a candidate to effectively communicate with patients but would not require them to have speech or intact hands. By focusing on the end points, the approach avoids any ableism to seep into the assessment and avoids reifying that there is one and only one manner to achieve desired outcomes.
28. Justice KV Viswanathan speaking for this Court in Omkar Gond (supra) has applied a purposive interpretation to the guidelines (Appendix "H-1") in the context of a medical aspirant with dialectic incapacity. This Court held that the principle of reasonable accommodation in Section 2(y) of the RPWD Act read with Article 41 of the Constitution necessarily means that (i) a person cannot be disqualified merely on the basis of a benchmark quantification. Such a criteria would be unconstitutional for being overbroad; (ii) the Disability Assessment Board must not act as monotonous automations looking at the quantified disability and disqualifying candidates. The Board must examine if the candidate can pursue the course with their disability; and (iii) in doing so, the Board is not merely obliged to provide assistive devices and other substances which will help the candidate. The true role of the Board is to assess the competence of a candidate.
40 The Courts cannot be stupefied into inaction by the lack of adequate framework or expertise when questions of fundamental rights emerge. No person forfeits their claim to education or other pursuits of life on account of their disability. The flurry of cases concerning medical aspirants with disability which has come before this Court shows that the overarching issue is a sense of over medicalization of disabled bodies by the Assessment Boards. The approach often taken, due to inertia or unwittingly, is to assume that a person with disability may not be eligible for pursuing the course and then to put the candidates under tests to prove the assumption. The approach focuses more on the disability of a person than their ability. This turns the principle of reasonable accommodation on its head. The question instead that the Board ought to ask itself is this - what measures can be taken to ensure that the candidate with disability can start their MBBS course on an equal footing with their prospective classmates? The change in question brings a change in perspective. The only negative answer to the question would be that - in line with contemporary scientific advancements, no devices or accommodations can enable the person with disability before them to compete at a level playing field. Courts must ensure that the sanctity of the principles in the RPWD Act and in the Constitution are not violated by the conduct or the outcome of the assessment. 19 Item 38 OA No.669/2023
60. We further conclude as follows:
"...b. The Disability Assessment Boards shall eschew from a benchmark model to test the functional competence of medical aspirants with disability. The second respondent shall issue appropriate guidelines in this regard;"
35. In Shweta Bansal Vs. Union of India & Ors., WP(C) No.5367/2014 & CM No.10688/2014, the Hon‟ble High Court in para 25 has held as under:-
"25. Before we give our final directions, we would like to examine another contention raised by the respondents, which was raised and rejected by the Tribunal, relying upon their earlier order in the case of N. Manjushree (Ms) v. Union of India in OA No. 353/2010 decided on 3rd June, 2011. We have quoted above Annexure-IV to the CSE- 2012 and notice the conditions mentioned under the heading "functional classification" and "physical requirements." The contention of the respondents was that under the column "functional classification", persons with one leg disability were eligible to be appointed to the IFS and those with two legs' disability were ineligible. The basis and foundation of the said criteria/condition is inexplicable and incomprehensible. We are informed that this condition has since been deleted and is no longer applicable. Factually also, the petitioner is not disqualified as per the said requirement. Along with the application form, the petitioner had submitted the certificate dated 26-27th June, 2012 assessing her disability as 66% in relation to her entire body. This certificate issued by a team of three doctors from the Ram Manohar Lohia Hospital, mentions the physical tasks that the petitioner could perform- completely or partially. The petitioner was subjected to a second physical examination on 1st May, 2013 at the Safdarjung Hospital at the behest of the Union Public Service Commission. The said certificate also records the work/tasks that the petitioner could perform and whether she could discharge her duties while standing, sitting, etc. The petitioner had difficulty in taking long walks and would crouch with difficulty. She was capable of performing other tasks, including pushing, pulling, lifting, kneeling, bending etc. Referring to the rather ill-founded submission of the respondents, the Tribunal has rightly observed that the aim and purpose of the Disabilities Act is to demolish barriers and provide jobs for differently-abled persons as per their entitlement. Any attempt to undo and nullify the effect of the beneficial legislation is not acceptable. Physical challenges do not impede one's thoughts, hopes, ambitions or aspirations".20 Item 38 OA No.669/2023
36. In N. Manjushree Vs. Union of India and Ors., OA No.353 of 2010 decided on 03.06.2011, the Bangalore Bench of the Tribunal has held as under:-
"14. Learned Counsel for the applicant had submitted that the applicant was first medically examined at Victoria Government Hospital, Bangalore, regarding her physical disability and the report given by Victoria Hospital which is at Annexure-A1 has been accepted as such by the respondent department. Annexure-A1 shows that regarding Locomotor disability the impairment is "weakness of left lower limb with shortening and sensory deficiency following surgery for spine Bifida" and the disability is 55% of the lower limbs. The only reason for denying the applicant allotment to IAS as per her first preference was that her both legs are affected. Respondent No. 1 has pointed out that as per the physical requirement/functional classification for the Indian Administrative Service, only one leg affected could be considered as per Annexure-A7 to the O.A. The functional classification and physical requirements as notified have already been quoted elsewhere in this order which is also Annexure- IV to the Extraordinary Gazette Notification which has been filed by the respondent along with a memo dated 15th February, 2011.
(15.) Before we discuss of functional classifications/physical requirements, we would like to note that the respondents have wrongly titled the "physical classification" as the "physical requirements" required for each service in all their communications including the Gazette notification. Both, legs affected (BA) one leg affected (OA) etc., are categories of physical handicap (Locomotor handicap) and the right title for the same should be "physical classification". Similarly, for the identified jobs that have been reserved in each service, the functions that are required to be performed are the "functional requirements", like work performed by Sitting (S), work performed by Standing (ST), work performed by walking (W) etc. and not "functional classification". In accordance with the provisions contained in "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act, 1995 respondent No. 1 had issued instructions regarding reservation of vacancies in Group 'A', 'B' 'C' and 'D' posts by a memorandum of Department of Personnel and Training O.M. No. 36035/3/ 2004- Estt. (Res) dated 29.12.2005. Para 8 of the O.M. defines disabilities for the purpose of the O,M. "8.(iii)(a) Locomotor disability: "Locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy".
Degree of disability for reservation is given in Paragraph-9 which states that "only such persons would be eligible for reservation in 21 Item 38 OA No.669/2023 services/posts who suffer from not less than 40 per cent of the relevant disability. A person who wants to avail of benefit of reservation would have to submit a Disability Certificate issued by a Competent Authority in the format given in Annexure I".
18. 'BL' (both the Legs are affected) can be a case that one leg is completely affected by Polio and there may be loss of one toe in the other leg. Thus, in the Locomotor handicap of 'BL' mere loss of one toe cannot come in the way of a person performing all the jobs that can be performed by a person with all the toes intact, (specially with reference to the "functional requirement" enumerated in the notification). Will the respondent disqualify a person who has got a locomotor disability of more than 40% whose left leg is affected by Polio and who has lost one toe in the right leg only for the reason that the physical classification is 'BL'. 'OL' is a subset of 'BL' and the minimum disability of OL for reservation is more than satisfied by 'BL'. Regarding the physical classification to avail the reservation, the candidate should satisfy at least one of the physical classifications, that is to say that the candidates can have more than one of the disabilities mentioned under the functional (read as physical) classification as long as the candidates fulfill the minimum functional requirement specified for the job. As we have already mentioned, the applicant satisfies all the functional requirements for IAS. (Even though only 6 of the 11 requirements for a Civil Service non-technical post - are sufficient to avail reservation to the IAS the applicant satisfies one more requirement). Thus functional requirement satisfaction is more than what is required. The argument put forth by the learned Counsel for the applicant is that when the applicant satisfies the functional requirement for holding a post in the IAS (even though it is one of the reserved posts) she cannot be denied allotment to the IAS as per the ratio of the decision in Dinesan v. State Bank of India, ILR 1999 Kar. 3411 rendered by the Hon'ble High Court of Karnataka. Though the facts of the case are entirely different, the following observations of the Hon'ble High Court lays down a rule/law that is to be followed wherever the rule becomes applicable.
".....The relevant test is not whether the person is free from defects and deformities, but whether the person has any defect of impediment which will interfere with the normal or efficient functioning of the person in performance of the duties attached to the post".
In the said case also the respondent, i.e. State Bank of India had laid down policy and guide lines regarding medical examination of candidates to be selected for the post of Law Officer. The aim of medical examination has been explained as follows by their Lordships:-
"17. "The Aim of Medical Examination:22 Item 38 OA No.669/2023
The Medical Examiner is expected to ensure that a candidate in his/her existing state of health will be able to render uninterrupted service to the Bank. Hence Medical Examiner must give a thorough medical check up. To be passed as fit for appointment, candidate must be a good mental and bodily health and free from any physical defect likely to Interfere with the efficient performance of the duties of his/her appointment".
...What is medical fitness? It may include physical fitness and mental fitness. In so far as physical fitness is concerned, what is the requirement? Is it physical appearance, physical health, absence of physical defects, absence of physical disability or absence of physical handicap? The terms 'physical handicap' and 'physical disability, normally refer to a problem or condition which makes functioning by such a person more difficult, than persons without such problem or condition in other words, if a person lacks one or more physical abilities either fully or partially, then it would be a physical disability or handicap. The term physical defect refers to a physical impairment. In some situations a physical defect may lead to a physical disability or physical handicap. There may be several instances where a physical defect will have absolutely no effect on the discharge of functions of any post/job or at least, some posts/jobs. Therefore, if there is some physical defect which has absolutely no bearing on the functioning of the person, in relation to the post to which he is appointed, such physical defect cannot be said to have any relevance for ascertaining the physical or mental fitness for the post. When a person is medically examined to consider whether he is medically fit, as provided in the guidelines; the intention is to point out whether the person has any defect which is likely to interfere with the efficient performance of the duties of the post to which he is to be appointed".
(Emphasis supplied).
In the instant case the applicant may be 'both legs affected', but she is able to perform all the six functions mentioned at Annexure-A7 which are the requirements for IAS (S, ST, W, SE, H, RWT). Though the above judgment was pronounced after the enactment of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and after its coming into force, the said Act has not been referred to in the judgment and hence the question of reservation for physically handicapped has not been dealt with in the judgment. Thus, even when there is no reservation for a post, the Hon'ble High Court stated that:
"Where interference with normal or efficient functioning is not likely on account of such defect and medical examination and opinion does not say so, existence of a mere physical defect or deformity by itself cannot be termed as unfitness for a job".
20. The Medical Board has not passed any adverse remark against the said column which implies that there is nothing in the health of the 23 Item 38 OA No.669/2023 applicant which is likely to render her unfit for discharging of her duties for the service for which she was a candidate. The applicant has been a candidate for IAS which was her first preference and as per the medical report from the Medical Board she satisfies 7 of the functional requirements out of 11, though only 6 of the sald 7 are required to be fulfilled for selection to the IAS. (Under Reservation Quota for physically handicapped). As per the principles laid down by the Hon'ble High Court of Karnataka in Dinesh's case, there was nothing in the medical report that would have rendered the applicant ineligible for selection to the IAS against one of the reserved vacancies. The respondents have admitted that 4 vacancies were reserved for the physically handicapped (Locomotor disability, Visual impairment and Hearing impairment) but the categories have not been finalized at the time of notification. Nothing is mentioned in the reply whether all the reserved vacancies have been filled up by the physically handicapped. By the words "filling reserved vacancies", we mean filling the post by relaxation of the general standard, specially merit. Of course, respondent No. 3 has been allotted to IAS on relaxation of the general standards as it would appear that only the candidates upto the rank of 70 have been allotted to IAS under the General quota as can be seen from Annexure-A4. Annexure- A10 shows that there were a total of 66 vacancies for the 'general candidates' out of 131 vacancies. The applicant had secured the 65th rank and a candidate with rank 70 is shown as selected to the IAS (under the general quota). The Medical Board has not pointed out anything in the health of the applicant that is likely to render her unfit for efficient discharge of the duties in the service for which she was a candidate and she satisfies the functional requirements for IAS.
22. The applicant has also stated that she is an officer of the Karnataka Administrative Service. Thus, she is eligible to that she is an officer as per IAS (Recruitment) Rules, 1954. While considering a KAS officer for promotion to IAS, the physical defects do not come in the way of promotion. Hence there is no logic in stating that the applicant (who is stated to have deformity in both legs in fact the deformity is only for the left lower limb but because of the deformity in the left lower limb both legs appear to have been affected) is unfit for IAS by direct recruitment. In short, it amounts to laying down that the applicant is fit to be selected for IAS by promotion method and not by the direct recruitment method. From the Extraordinary Gazette notification produced along with the Memo dated 15th February, 2011 by the Senior Central Government Standing Counsel, it is seen that for Pondichery Civil Service (Group 'B') at Sl.No. 10 "physical classifications" for Locomotor disability has been given as OA, OL, OAL, BL, LV. (Even though LV Low Vision is a visual impairment, the same has been classified as a Locomotor disability which shows that even the Extraordinary Gazette notifications are issued without proper application of mind). That apart, a person selected to Pondicherry Civil Service is also eligible for promotion for IAS as in the case of officers of the State Administrative Services. Thus, respondents in this O.A. have also indirectly laid down that a person with both legs affected can be promoted to IAS but cannot be recruited based on the Civil Service Examination (direct requirement) To conclude, a person can be both legs affected and even both arms ('BL', 'BA') affected but if the functional requirements required for a 24 Item 38 OA No.669/2023 particular service are fulfilled, the candidate can avail the benefit of reservation for the post for which the said requirements have been laid down."
37. Respondents have relied on the following Judgments :-
(i) Mallikarjuna Rao and others vs. State of Andhra Pradesh and others civil appeal no.3677 of 1987 decided on 10.04.1990.
(ii) P.U. Joshi and others Vs. Accountant General, Ahmedabad and others with Union of India and Others Vs. Basudeva Dora and Others, Civil appeal No.4679-80 of 1996 decided on 19.12.2002.
(iii) Divisional Manager, Aravali Golf Club and Another Vs. Chander Hass and Another, Civil Appeal No.5732 of 2007 decided on 06.12.2007.
(iv) Ranjan Kumar and Others Vs. State of Bihar and Others, Civil Appeals No.4455-58 of 2009 with Nos.4459-80 of 2009 dated 16.04.2014.
(v) Rathod Anil Vs. Union of India WP (C) No.8771/2021 decided on 18.12.2023.
(vi) Manish Kumar Vs. Railway Board and others, OA No.1409/2019 dated 27.09.2024.
38. The Hon‟ble Apex Court in the case of Mallikarjuna Rao and others vs. State of Andhra Pradesh and others, Civil Appeal no.3677 of 1987 decided on 10.04.1990 has held as under:-
"11. The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature. The High Court was aware of its limitations under Article 226 of the Constitution of India and as such the learned Judge deliberately used the word "advisable" while making the observations. It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere 25 Item 38 OA No.669/2023 which is exclusively within the domain of the executive under the Constitution. Imagine the executive advising the judiciary in respect of its power of judicial review under the Constitution. We are bound to react scowlingly to any such advice.
12. This Court relying on Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh' and State of Himachal Pradesh v. A Parent of a Student of Medical College, Simla¹, held in Asif Hameed v. State of Jammu & Kashmir as under: (SCC p. 374, para 19) "When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the government. While exercising power of judicial review of administrative action, the court is not anappellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive...."
13. The Special Rules have been framed under Article 309 of the Constitution of India. The power under Article 309 of the Constitution of India to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. The courts cannot usurp the functions assigned to the executive under the Constitution and can- not even indirectly require the executive to exercise its rule making power in any manner. The courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India."
39. In the case of P.U. Joshi and others Vs. Accountant General, Ahmedabad and others with Union of India and Others Vs. Basudeva Dora and Others, Civil appeal No.4679-80 of 1996 decided on 19.12.2002, the Hon‟ble Supreme Court has held as under:-
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, 26 Item 38 OA No.669/2023 pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues ofpromotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
40. In Divisional Manager, Aravali Golf Club and Another Vs. Chander Hass and Another, Civil Appeal No.5732 of 2007 decided on 06.12.2007, the relevant paras read as under:-
"15. The court cannot direct the creation of posts. Creation and sanction of d posts is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the courts cannot take upon themselves the power of creation of a post. Therefore, the directions given by the High Court and the first appellate court to create the posts of tractor driver and 27 Item 38 OA No.669/2023 regularise the services of the respondents against the said posts cannot be sustained and are hereby set aside.
16. Consequently, this appeal is allowed and the judgment and order of the High Court as well as that of the first appellate court are set aside and the judgment of the trial court is upheld. The suit is dismissed. No costs.
17. Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism judges cannot cross their limits and try to take over functions which belong to another organ of the State.
18. Judges must exercise judicial restraint and must not encroach into the executive or legislative domain, vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen and S.C. Chandra v. Stute of Jharkhand (see concurring judgment of M. Katju, J.).
19. Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction".
41. In Ranjan Kumar and Others Vs. State of Bihar and Others, Civil Appeals No.4455-58 of 2009 with Nos.4459- 80 of 2009 dated 16.04.2014, the Hon‟ble Apex Court has held as under:-
"14. The next submission which has been presented before us is that when the respondents had appeared in the interview knowing fully well the process, they could not have resiled later on or taken a somersault saying that the procedure as adopted by the department was vitiated. In this connection, it is apt to refer to the principle stated in Om Prakash Shukla v. Akhilesh Kumar Shukla. In the said case a three-Judge Bench, taking note of the fact that the petitioner in the writ petition had appeared for the examination without protest and filed the petition only after he realised that he would not succeed in the examination, held that the writ petitioner should not have been granted any relief by the High Court.28 Item 38 OA No.669/2023
15. In this context, we may quote a passage from Madan Lal v. State of J&K with profit: (SCC p. 493, para 9) "9. It is now wellsettled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
16. In Chandra Prakash Tiwari v. Shakuntala Shukla, the Court observed as follows: (SCC p. 149, para 34) "34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not 'palatable' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process."
17. In Union of India v. S. Vinodh Kumar, the Court reiterated the principle that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.
18. Thus, the twin contentions proponed by the learned counsel for the appellant deserve acceptation and, accordingly, we allow the appeals and, ex consequenti, the judgment and order passed by the Division Bench in the batch of appeals and the judgment and order passed by the learned Single b Judge in Awadh Kishor v. State of Bihar are set aside. There shall be no order as to costs"
42. The undisputed facts are that the applicant, a differently-abled candidate with a locomotor disability had appeared in the Civil Services Examination, 2019 (CSE 2019). Having secured the 811th rank in the order of merit, the applicant was one of the selectees in the list of 29 Item 38 OA No.669/2023 candidates recommended for appointment. However, when the final allocation of services was made, the applicant was not allocated any service and his name was missing from the list. The reason given by the respondents was that the applicant having 60% disability is both legs and arms affected in the Locomotor Disability. Three vacancies reserved for the category have been allocated to three candidates who had scored more marks than the applicant and were higher in merit. The applicant's grievance is that the candidate lower/next in merit at rank 812 has been,(One leg affected in Locomotor Disability category) allocated to IRTS. In contrast, the applicant has been left high and dry.
43. In the advertisement published by the DOPT Annexure IV, the functional classification and physical requirements were specified in two separate columns. It was specified that candidates from the three categories, i.e., i) locomotor disability; ii) visual impairment and (iii) hearing impairment were eligible for various services as per the chart/posts identified which also mentioned the Functional classifications (types of disabilities within the three broad categories) and the physical requirements of the service.30 Item 38 OA No.669/2023
44. The applicant was examined by the special medical board, constituted by the respondents for the candidates.
The said medical board upon examining the applicant has opined that the applicant fulfils the following physical requirements S, ST, W, SE, H. RW, C, MF, PP, L, KC, BN. M, CL, whereas he falls in the BLA (Both legs and arms Affected) category in LDCP (Locomotor Disability & Cerebral Palsy).
45. The physical requirements of IRTS as per the advertisement are S, ST, BN, W, SE, MF, C, RW, PP, and H. The applicant contends that once the applicant fulfils the physical requirements he should have been allocated IRTS as per his rank, ignoring the functional classification of BLA. Counsel for the applicant strenuously argued that the Functional Classification nomenclature creates an artificial sub-categorization within the broad Disability Categories, which goes against the mandate of the Disability Act, 2016, and various judicial pronouncements.
46. On the other hand respondents have argued that CSE- 2019 is conducted strictly as per the notified rules. The rules/Annexure IV specify the functional classification of the identified post in IRTS as OA, OL, Leprosy Cured, Acid Attack Victim. The functional classification of IRTS does not 31 Item 38 OA No.669/2023 include BLA, as such the applicant could not be allocated IRTS. Three vacancies for BLA were identified for IAS and 1 for ICAS. All three vacancies have been filled by candidates who were BLA and had achieved higher rank than the applicant. Respondents have also averred that they had approached the Railway Ministry requesting them to consider relaxing the Functional requirements to include BLA. The Railway Ministry has regretted any relaxation, as such the respondents are unable to adjust the applicant. Further, the respondents relying upon the case law cited above argued that CSE-2019 is a competitive examination. Applicant has a right to be considered as per the notified rules. Achieving a rank does not guarantee, selection and appointment. The vacancies reserved for BLA have been filled by candidates higher in rank as such applicant being lower in merit cannot claim appointment.
47. We have considered the facts of the case and the case laws cited by the parties.
48. In the case of Om Rathod Vs. The Director General of Health Services & Others, Civil Appeal No.12110 of 2024 cited by the applicant, the Hon‟ble Apex Court has issued guidelines/directions concerning admitting of persons with disability into medical courses. The Hon‟ble 32 Item 38 OA No.669/2023 Apex Court has also held that "The Courts cannot be stupefied into inaction by the lack of adequate framework or expertise when questions of fundamental rights emerge. No person forfeits their claim to education or other pursuits of life on account of their disability."
The said judgment is not applicable in the present case as the same is on a different set of facts. The applicant at best can have a fair chance of consideration for appointment which has been given to him. However, the consideration is to be as per the rules only.
49. The applicant has relied upon Shweta Bansal Vs. Union of India & Ors., WP(C) No.5367/2014. In the said case, the petitioner could not qualify for any of the services or posts mentioned in her order of preferences. There was no reservation for persons with locomotive disability in the IFS, the Indian Audit and Accounts Service. The respondents had admitted to a lapse and slip up that the post earmarked for orthopedically handicapped/locomotive disability could not be included in the list of notified vacancies for CSE-2012. In these circumstances, the Hon‟ble High Court has granted the relief. Again the facts in 33 Item 38 OA No.669/2023 Shweta Bansal (supra) being different from the facts in the present case, are not applicable.
50. In N. Manjushree Vs. Union of India and Ors., OA No.353/2010, the applicant was an officer of the Karnataka Administrative Service. The Tribunal had noted that while considering a KAS officer for promotion to IAS the physical defects do not come in the way of promotion. Hence, there is no logic stating that the applicant‟s disability makes her unfit for IAS by way of direct recruitment.
51. On the other hand, the respondents have relied on Mallikarjuna Rao and others vs. State of Anadhra Pradesh and others, Civil Appeal No.3677/1987, where the Court has held that when the State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or executive has acted within the powers and functions assigned under the Constitution or not. If not, the court must strike down the action.
52. In the present case respondents had notified the functional classifications attached to the different services in the advertisement itself. The respondents are thus duty bound to follow the rules as notified by them concerning 34 Item 38 OA No.669/2023 CSE 2019. Issuing a direction to respondents to allocate service to the applicant disregarding the FC would amount to directing the respondents from diverting from their own notified rules.
53. The Tribunal, while exercising powers of judicial review, cannot usurp function of the executive nor direct the executive to exercise their power in a particular manner. In P.U. Joshi and Others Vs. Accountant General, Ahmedabad and others with Union of India and others vs. Basudeva Dora and Others, it has been held that the question relating to the constitution pattern and nomenclature of post falls in the realm of policy of the executive. The applicant does not have any right to seek a direction which will go beyond the settled policy.
54. In Divisional Manager, Aravali Golf Club and Another Vs. Chander Hass and Another, Civil Appeal no.5732/2007, the Hon‟ble Apex Court has held that the Judges must exercise judicial restraint and must not encroach into the executive or legislative domain.
55. Similarly in Ranjan Kumar and Others Vs. State of Bihar and Others, Civil Appeals No.4455-58 of 2009, it has 35 Item 38 OA No.669/2023 been held that if an applicant does not find himself selected in a recruitment selection process then he cannot turn around and cry foul that the rules by which the selection has been conducted are vitiated.
56. In view of the above and upon consideration in entirety, we do not find any merit in the case. Hence the OA is dismissed.
( Dr. Sumeet Jerath ) ( Harvinder Kaur Oberoi )
Member (A) Member (J)
/uma/