Central Administrative Tribunal - Ernakulam
Harisankar R vs Staff Selection Commission (Ssc) on 8 August, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00147/2023
Tuesday, this the 8th day of August 2023
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Harisankar.R.,
Aged 21 years,
S/o.V.Rajeshkumar,
Residing at Krishna Nivas,
Sree Sankara College Road,
Mattoor, Kalady P.O.,
Ernakulam District - 683 574. ...Applicant
(By Advocate Mr.Shafik.M.Abdulkhadir)
versus
1. Union of India
represented by the Principal Secretary to the Government,
Ministry of Personnel Public Grievances and Pensions,
New Delhi - 110 001.
2. Staff Selection Commission,
represented by its Chairman,
Block No.12, CGO Complex,
Lodhi Road, New Delhi - 110 003.
3. Staff Selection Commission,
Kerala Karnataka Region,
(KKR), 1st Floor, 'E' Wing,
Kendriya Sadan, Koramangala,
Bangalore - 560 044. ...Respondents
(By Advocate Mrs.O.M.Shalina, SCGSC)
This application having been heard on 12 th July 2023, the Tribunal on
8th August 2023 delivered the following :
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ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The applicant who is a 21 year old person with disability (PwD) is aggrieved by the refusal of the 3 rd respondent - Staff Selection Commission, Kerala Karnataka Region, Bangalore - to grant him what he claims to be entitled 'extra time' during the Tier 3 Examination (Typing Test) in the Combined Higher Secondary Level Examination - 2021 (CHSLE - 2021), conducted by the 2nd and 3rd respondents for selection to various posts under various departments of the Government of India. He has filed the O.A seeking the following relief :
1. To call for the records relating to Annexure A-1 to Annexure A-12 and to declare that the applicant is entitled for additional time as per Annexure A-4 notification for Tier 3 typing test also, due to his disability.
2. To direct the respondents to evaluate his Tier 3 test on relaxed standards specified for the PwDs and to declare him as passed as he was not given his entitled extra time to complete his Tier 3 test.
3. To direct the respondents to call him also for verification of documents along with candidates included in Annexure A-11 and for consequential appointment if any.
4. To issue any other appropriate order or direction in the facts and circumstances of the case.
And
5. To grant the costs of this Original Application.
2. The applicant is currently in the final year of his Undergraduate Degree course. He had passed the Higher Secondary Examination in 2020. He submits that he is a candidate with '40% Specific Learning Disability' -3- (SLD) as certified by a duly constituted Medical Board and as indicated in the Certificate of Disability produced at Annexure A-1 from the District Hospital, Aluva. In addition, he has a Disability Certificate dated 23.02.2021 issued by the Department of Empowerment of Persons with Disabilities under Ministry of Social Justice and Empowerment, Government of India produced at Annexure A-2 which indicates that he is a case of Specific Learning Disabilities and that he has 40% Temporary Disability in relation to his brain as per the guidelines ie., the guidelines for the purpose of assessing the extent of specified disability in a person included under Representation of Persons with Disabilities Act, 2016 notified by Government of India vide S.O.76(E) dated 04.01.2018. It is also indicated in the said certificate that the same would be valid until 23.02.2024. In addition to this, the applicant also possesses a Unique Disability ID issued by the Government of India, showing his disability type as 'Specific Learning Disabilities' and % of Disability as 40%, which is also valid till 23.02.2024. A copy of the card has been produced at Annexure A-3. The applicant submits that the Unique Disability ID is issued by the Government of India as the single document of identification for verification of the disabled for availing various benefits etc. It is submitted that this card is expected to streamline the tracking of physical and financial progress of beneficiaries at all levels in the hierarchy of implementation.
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3. The applicant submits that the 2nd respondent - Staff Selection Commission (SSC), New Delhi - had notified the Combined Higher Secondary (10+2) Level Examination, 2021 as per Annexure A-4 Notice on 01.02.2022 indicating that a competitive examination for recruitment to the posts of Lower Division Clerk (LDC)/Junior Secretariat Assistant, Postal Assistant/Sorting Assistant and Data Entry Operators for various Ministries and Departments/Offices under the Government of India and various Constitutional Bodies/Statutory Bodies/Tribunals etc., would be held. It is also submitted that as per the same Notice inviting online applications under the permissible disabilities for PwD candidates, Specific Learning Disability (SLD) was also included. It is submitted that the Notice indicated that those who avail the facilities of the scribe/compensatory time allowed for certain PwD candidates have to produce relevant documents at the time of document verification. The applicant submits that being eligible to take part in the examination he had filled up the required online form of application. The examination was held then in three Tiers, the 1 st Tier being a computer based multiple answer test and the 2nd Tier, a descriptive examination. He had used the services of a scribe during the process. It is submittd that after clearing the first two tiers he had qualified to appear in the 3 rd Tier Skill Test where the proficiency of candidates in typing and data entry is tested. It is submitted by the applicant that three separate hall tickets are also issued to the candidates for the examination.
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4. The applicant submits that he had availed of the service of an 'own' scribe for the first two tiers. During those tests, he was also given additional time, as allowed for the PwD candidates in the examination. The Tier 1 examination was conducted on 30.05.2022 and the Tier 2 examination on 18.09.2022. The applicant submits that though the Annexure A-4 Notice had specified that all the records are to be verified at the time of document verification only, each Examination Center demands to see the medical certificate regarding the physical limitation for the examinee to write on his own during the examination. The applicant submits that before the Tier 2 examination, a Certificate regarding Physical Limitation was shown by him at the centre concerned. A copy of this certificate dated 19.02.2022 issued by the 'Assistant Surgeon, CHC Kalady' has been produced at Annexure A-5. The result of the said examination was then published on 16.12.2022 by the Under Secretary of the 2 nd respondent - SSC New Delhi - vide Annexure A-6. Since the applicant had qualified in the first two Tiers, he was then issued a hall ticket for the Tier 3 examination, which was to be held on 06.01.2023 vide Annexure A-7.
5. The applicant submits that he had requested for a certificate like the earlier Annexure A-5 certificate to be issued to him for the Tier 3 typing test to the local health authorities. He was accordingly provided with the required certificate by the Community Health Centre, Kalady, the area where he resides, for the said purpose. A copy of the said certificate dated 03.01.2023 has been produced at Annexure A-8. This certificate too has -6- been signed by the 'Assistant Surgeon, CHC, Kalady, Ernakulam District'. This certificate was then shown by him at the time of appearing for the Tier 3 examination/skill test to the personnel posted at the exam centre on the date of the test. However, he submits that the centre head refused to grant him the facility of additional time, as the Annexure A-8 was issued only by an 'Assistant Surgeon' and not by a 'Chief Medical Officer or a Civil Surgeon'. Thus, he had to complete the Tier 3 test in the normal allotted time for other candidates. This was in spite of the fact that he had been given additional time along with a scribe, during the Tier 1 and Tier 2 examinations. He submits that when the final results were declared, though he had qualified in both the Tier 1 and Tier 2 levels, he did not qualify in Tier 3 as he was not given the extra time of five minutes for PwD candidates. As per the applicant, those who did the Tier 3 test were declared qualified if they made 10 mistakes only. However, he had made 16.15 mistakes, because he had taken the typing test in an upset condition due to rejection of the additional time that he was entitled to. He submits that if he had been given the extra time of five minutes, as allowed for PwD candidates, he also would have qualified in the test.
6. After the results were declared, the applicant got in touch with the 3 rd respondent - SSC Bangalore - and requested for intervention vide his email dated 10.01.2023. A reply to his complaint was received by email, produced at Annexure A-10, on the very next day on 11.01.2023. The reply stated that the certificate regarding physical limitation for an examinee to -7- write which had to be in a format which was provided in annexure-I of the Notice at Annexure A-4 had been found to have been issued by an 'Assistant Surgeon' which was not equivalent in rank to any of the competent authorities as mentioned in the prescribed format in the said annexure-I. Hence, his request for additional compensatory time of five minutes in the skill test had not been accepted by the competent authority. The Commission later published the slots for final document verification for qualified candidates. This was to be done between 28.03.2023 and 31.03.2023 as per the notification, a copy of which is provided at Annexure A-11.
7. The applicant then approached this Tribunal and filed this O.A seeking the relief prayed for. He also prayed for an interim order to include him also in Annexure A-11 document verification. He asked to permit him to undergo the said document verification provisionally, subject to the outcome of the O.A. This request was considered by the Tribunal on 30.03.2023 and it was ordered that, subject to the result of the O.A., the respondents may permit the applicant to undergo document verification at the risk and expense of the applicant as per the Annexure A-11 Schedule for conduct of document verification. It was also directed that one post reserved for the PwD candidates should be kept unfilled provisionally, subject to the final outcome of the O.A. Subsequently on 19.06.2023 the interim order was modified by this Tribunal directing that the vacancy which was ordered to be kept unfilled provisionally, shall be one within Kerala. -8-
8. Further after filing the O.A., the applicant filed an M.A to accept documents which was allowed. He then produced the Annexure A-13 document in the M.A containing the marks secured by him in the examination, as downloaded from the website of the SSC. The SSC published the results of the selection on 27.04.2023 vide Annexure A-14. The applicant submits that the Annexure A-13 document shows that he had scored a total of 133.79411 marks after the test. Further, as per the results declared in Annexure A-14 it appears that one vacancy of Unreserved (UR) in the PwD 'other' category has been kept unfilled in compliance with the interim order of this Tribunal. He submits that the results at Annexure A-14 also show that the last PwD candidate selected had scored 112.36998 marks, which is below what the applicant had scored. In addition it is to be noted that many of the vacancies notified for PwD candidates have not been filled up due to a dearth of candidates. Further, as per the copy of the typing test sheet of his Tier 3 examination, which was supplied to him after an RTI request, it can be noted that he had only missed the last line and half of the passage to be typed. In addition, only one mistake can be seen to have been committed in what has been typed. His missing of the last 1.5 lines of the passage, therefore, had amounted to 16.15 mistakes in the typing test, whereas, the cut off was only 10 mistakes. The applicant thus submits that had he been given the additional five minutes available for the PwD candidates, it stands to reason that he would have completed the test successfully. He further submits that he had sent representations in this -9- regard to the Commission (SSC) but has got no response.
9. The Respondent No.3 - SSC, Karnataka Kerala Region, Bangalore - has filed a reply statement on behalf of the respondents 1 to 3. In their reply statement the respondents, at the outset, have referred to the Scheme of the Examination and other conditions in the Annexure A-4 Notice released by them. They clarify that paragraph No.8.2 of the Notice at Annexure A-4 had clearly indicated that "in case of remaining categories of persons with benchmark disabilities, the provision of scribe will be provided on production of a certificate at the time of examination to the effect that the person concerned has physical limitation to write, and scribe is essential to write examination on his/her behalf from the Chief Medical Officer/Civil Surgeon/Medical Superintendent of a Government health care institution as per proforma at Annexure-I." Further, in paragraph No.8.11 of the notification at Annexure A-4 it has been indicated that "the PwD candidates who have availed the facility of Scribes/Passage Reader and/or compensatory time must produce relevant documents for the eligibility of scribe/compensatory time at the time of document verification. Failure to produce such supporting documents will lead to cancellation of their candidature for the examination." Further paragraph No.14.7.6.1 as well as Para No.13.7.1 of the Notice at Annexure A-4 have provided that "Skill Test/Typing Test for the shortlisted candidates will be conducted on the computers provided by the Commission or its authorized agency" and "such a test is mandatory for Data Entry Operators. No candidate is exempted from appearing in the Skill Test." In addition, paragraph No.15.2 -10- of the notice has provided that "the Commission will not undertake detailed scrutiny of applications for the eligibility and other aspects at the time of written examination and, therefore, candidature will be accepted only provisionally. Candidates are advised to go through the requirements of educational qualification, age, physical and medical standards etc. and satisfy themselves that they are eligible for the post. Copies of supporting documents will be sought at the time of document verification. Physical and medical standards will be ascertained by the User Departments after the declaration of result. When scrutiny is undertaken if any claim made in the Application Form is not found substantiated the candidature will be cancelled and the Commission's decision shall be final." Further, it has been provided in paragraph No.25(j) of notice that "Request for change/correction in any particulars of the Application Form, once submitted, will not be entertained under any circumstances. Such requests received through Post/Fax/Email/By hand, etc., shall not be entertained."
10. It is submitted by the respondents that the applicant had filled the online Application Form. To a question in Column 19.2 as to whether he had a physical limitation to write and scribe is required to write on his behalf (Certificate to this effect from the Chief Medical Officer/Civil Surgeon & Medical Superintendent of a Government Health Care Institution as per Notice of the Examination would be required at the time of Examination), he had replied 'Yes'. This implies that the -11- applicant has affirmed that he is a PwD candidate in his response to the question in Column 19.2 and that he is aware of the Certificate to be submitted issued by the Competent Authority. The respondents further submit that it is to be noted that the applicant is a PwD candidate, with 40% Specific Learning Disability and had applied for the CHSL Examination 2021. He had availed of compensatory time and scribe by producing the Certificate regarding Physical Limitation for an Examinee to Write as shown in the format at annexure-I of the Recruitment Notice. This Certificate dated 19.02.2022 was signed by an Assistant Surgeon and was produced during Tier I (30.05.2022) and Tier 2 (18.09.2022) of the examination. He had been shortlisted to appear in the Typing Test on the basis of the result of Tier 2 of CHSL (10+2) Level Examination 2021 declared by the SSC (HQ). When he produced a similar certificate dated 03.01.2023 regarding physical limitation signed by the Assistant Surgeon during the skill test held on 06.01.2023 (copy produced at Annexure A-8) ie., during the subsequent stage of recruitment process to avail the facility of compensatory time, the said certificate had been rejected by the skill test venue staff. The rejection was on the ground that the certificate dated 03.01.2023 not had been signed by the competent authority as specified in the notification ie., Chief Medical Officer/Civil Surgeon/Medical Superintendent of a Government Health Care Institution. Thus, the compensatory time of five minutes was not allowed and the candidate took the skill test with the same duration applicable to all other candidates. On publication of results on 18.03.2023 by the SSC -12- Headquarters it was seen that the applicant did not qualify in the skill test as he had made 16.15% errors as against cut off mistakes of 10%. Hence it is his contention that if he had been allowed compensatory time, he could have cleared the skill test.
11. The respondents submit that in compliance with the interim order of this Tribunal dated 30.03.2023, the SSC allowed the document verification of the applicant on 31.03.2023. However, they have done with remarks that his status is being kept withheld subject to the outcome of the O.A. Further, it has also been noted in the said remarks that the prescribed medical certificate required to allow scribe/compensatory time that was submitted by the applicant during Tier 1 and Tier 2 are found not in order during document verification as these are signed by Assistant Surgeon who is not a competent authority to issue the same. However, the admissibility of the document was not decided by SSC at this stage as the matter was sub- judice. Further, it is noted in the remarks that there was handwriting mismatch between Tier 1 and Tier 2 samples and Skill Test samples, Document Verification samples. An undertaking has been given by the applicant that handwriting sample available in the former are that of the scribe.
12. It is submitted by the respondents in the reply statement that in the case of the applicant the SSC has strictly followed the guidelines which are issued and applied uniformly without any prejudice. Further, paragraph -13- No.25(c) of the Annexure A-4 notice has clearly stated that the Commission would not undertake detailed scrutiny of applications for the eligibility and other aspects at the time of written examination and, therefore, candidature would be accepted only provisionally. It is also indicated in the said paragraph that the candidates have to satisfy themselves about the requirements of educational qualification, age, physical and medical standards etc., for eligibility to the post. The copies of supporting documents would be sought at the time of document verification. Further, when scrutiny was undertaken, if any claim made in the application was not found substantiated, the candidature would be cancelled and the Commission's decision would be final.
13. It is submitted by the respondents (SSC) that the applicant had obtained the benefits of compensatory time and scribe during Tier 1 and Tier 2 examination by producing a certificate. However, the shortcomings in the said certificate produced were noticed during the Skill Test (Tier 3) and hence, the compensatory time as requested by the applicant was not allowed. During the document verification of the applicant conducted after the interim order of this Tribunal on 31.03.2023 was passed, it was found that the certificates submitted by the applicant during Tier 1 examination held on 30.05.2022 and Tier 2 examination held on 18.09.2022 are not valid, as they were also issued by the 'Assistant Surgeon' and not signed by the prescribed competent authority ie., 'Chief Medical Officer/Civil Surgeon/Medical Superintendent of Government Health Care Institution'. -14- Hence the claim of the applicant was not substantiated. Since the certificates produced by the applicant were issued by Assistant Surgeon and not by the competent authorities as earlier indicated and as prescribed in the notice of examination, the compensatory time was not allowed at the time of skill test. Hence all the averments are contrary to the Annexure A-4 notice of the examination and cannot be accepted. A certificate which is not issued by the competent authority, as per the annexure-I of the recruitment notice, cannot be taken as valid.
14. It is submitted that the Commission (SSC) has to conduct the examinations/skill tests as per the guidelines of the Notice of exam. The averment made by the applicant that his Tier 3 attempt was not valued in relaxed standard as the applicant was not permitted to take part in the examination as a PwD was incorrect. The applicant is being considered as PwD and results are processed strictly as per the notice of the examination. It is further submitted that all the candidates coming under PwD category do not require a scribe to write the exam. Hence a specific certificate regarding Physical Limitation of Examinee to Write as per the annexure-I to the Recruitment Notice has to be produced by PwD candidates who have physical limitation to write. Therefore, merely possessing a Disability Certificate, as provided by the applicant at Annexure A-1, Annexure A-2 and Annexure A-3 does not entitle a PwD candidate for scribe or compensatory time. It is not the intention of the Commission to deny the opportunity for PwD candidates to get employment if they are meeting the -15- eligibility conditions, including the suitability factor, as laid down in the Annexure A-4 notice. The Commission has to apply the rules uniformly to all candidates and it cannot condone or concede to individual requirements or act in violation of the rules. It is contended by the respondents that the skill test is only qualifying in nature and hence, the contention of the applicant that he would have scored more marks if the extra five minutes was given is not correct. Production of medical certificate in each tier of the examination is as per the Annexure A-4 notice and is uniformly applicable to every candidate who responds to the notice and applies to participate in the examination.
15. It is submitted by the respondents that the Hon'ble Punjab and Haryana High Court in Civil Writ Petition No.13688/2001, decided on 06.12.2001, had observed that "it is a settled rule of law that terms and conditions of brochure are binding and must be adhered to by all concerned. The obligations placed upon an applicant/candidate as per the brochure have to be discharged in the form and manner prescribed therein." Further, in a similar matter, relying upon various decisions of Hon'ble Supreme Court, the Hon'ble High Court Allahabad while dismissing W.P.No.48846/2016 vide order dated 28.08.2012 clearly held that strict adherence to the terms and conditions is paramount consideration and the same cannot be relaxed. It is submitted that in compliance of the interim order dated 30.03.2023 the SSC had conducted the document verification of the candidate/applicant on 31.03.2023 and the status of the -16- applicant has been kept withheld subject to the outcome of the O.A. During the said document verification held on 31.03.2023 the applicant had submitted a fresh annexure-I of the Notice of examination (Certificate regarding Limitation to Write) dated 21.01.2023 and similar certificate dated 04.02.2023. These are signed by the competent authority but it should be noted that they have been issued at a later date than the dates of the examination and skill test. The respondents, therefore, seek the dismissal of the O.A on the ground that the applicant is not entitled to any of the relief sought for in paragraph 8 of the same.
16. A rejoinder was filed by the applicant in response to the contentions in the reply statement in which he has brought in further contentions to meet the objections of the respondents. He submits that Annexure A-5 and Annexure A-8 certificates (Certificates regarding Limitation to Write) which were submitted by him during the time of appearing for various sets of examination along with the certificate at Annexure A-1 were obtained from nearby Government Hospital covering his area of residence. It was submitted along with Annexure A-1 which was duly certified and signed by the Superintendent of the District Hospital. The applicant does not contest that Annexure A-5 and Annexure A-8 were signed only by an Assistant Surgeon. However, he submits that the certificates given by him as shown at Annexure A-5 and Annexure A-8 coupled with the certificate at Annexure A-1 makes it clear that he was eligible for the facility of scribe or compensatory time as per the SSC guidelines. The same was accordingly -17- allowed to him in the Tier 1 and Tier 2 examinations by the respondents. It was only denied to him at the time of the Tier 3 examination which is a qualifying test which is unreasonable. Further, the Annexure A-1 document was submitted by the applicant at the time of the Tier 1 and Tier 2 examinations held on 30.05.2022 and 18.09.2022 along with the Annexure A-2 Disability Certificate from the Medical Board signed by the Superintendent of the Government Hospital. This was considered enough by the respondents to allow him the facility of scribe.
17. The applicant further submits in the rejoinder that it is evident from the reply statement of the respondents that the relevant documents for the eligibility of scribe/compensatory time needs to be produced at the time of document verification only. It is submitted that he had produced the documents issued by the competent authority at the time of document verification. This has also been admitted by the respondents at the end of their reply statement in paragraph 29. At this stage this Tribunal notes that the respondents have stated in their reply that the applicant did produce the documents signed by the competent authority, but that they were issued at later dates than the date of examination and skill test. Presumably the respondents are seeking to show that the applicant had realized that he had not had the documents issued by the competent authority earlier and, therefore, got the same issued/signed by the correct competent authority before the date of document verification which had been allowed by this Tribunal in its interim order.
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18. In view of the production of the correct document at the time of the verification, it is submitted by the applicant that the action of the respondents in denying him a compensatory time of five minutes for the Tier 3 examination has to be taken as arbitrary. The paragraph 9 of Annexure A-4 notice makes it clear that the skill/typing test is mandatory only for Data Entry Operators. It is submitted that it is not mandatory for those who are appearing for LDC/Postal Assistant/Sorting Assistant as per para 14.7.7.7 of Annexure A-4. Further as per para 14.7.7.5 of Annexure A-4 the duration of typing test for candidates eligible for scribe will be 15 minutes. Further, the applicant has reiterated that the narration of paragraph 15.2 of the Annexure A-4 Notice clearly indicates that the copies of supporting documents needs to be produced only at the time of document verification. It is submitted by him that he has accordingly produced the documents from the competent authority at the time of document verification, which has also been admitted by the respondents in the reply statement at paragraph 29. He had produced Annexure A-1 Certificate of Disability during the Tier 1 and Tier 2 examinations along with the Disability Certificate and UDID Card. Further, the Annexure A-8 document in the prescribed format at annexure-I of the Annexure A-4 Notice produced by him was taken into consideration at the time of Tier 2 examination. He had been allowed to engage his own scribe for the examination and also granted compensatory time, as he was certified with physical limitation to write the examination. Even prior to the Tier 2 examination, he had -19- produced a similar certificate while appearing for the Tier 1 examination and the same (Annexure A-5) was also allowed. No objections were raised at the time of either of the Two Tier examinations by the respondents as they had acted according to the provisions of the rules, which have clearly stipulated production of relevant documents at the stage of document verification only. The paragraph 8.11 of the Annexure A-4 Notice indicates that the relevant documents for the eligibility of scribe/compensatory time must be produced at the time of document verification. As such, not permitting him the compensatory time in the last and final stage of the process of examination is highly arbitrary. He had completed all the formalities required at the time of document verification as he had produced the certificates from the competent authority which has been accepted by the respondents.
19. Reiterating and extending his contentions a little further the applicant submits that given the fact that he was allowed to write with a scribe in the Tier 1 and Tier 2 examination with the same documents, as earlier indicated, it was surprising that when he appeared for the Tier 3 skill test his request for compensatory time of five minutes was turned down on the plea that the document was not signed by the competent authority. As such, he was forced to complete the skill test within the normal time applicable to general candidates. This was a clear discrimination shown to a PwD candidate. He submits that when the answer sheet was produced by him under a RTI application, he found that he had failed to qualify the Tier 3 examination, -20- solely as he did not get his eligible compensatory time of five minutes. The error percentage in the Annexure A-15 Skill Test sheet provided to him of his skill test shows that the error percentage was on the higher side only due to the non completion of the typing passage. In so far as what had been typed by him during the skill test there was only a single mistake and thus the percentage had gone up only due to the omission in typing the full text. The applicant submits that it is clear from Annexure A-15 that the full passage would have been typed and completed correctly if another five minutes compensatory time had been allowed to him.
20. In addition the applicant seeks to explain the reasons in reference to the undertaking collected from him at the time of document verification in connection with the differences in handwriting noticed while filling up the documents given in the examination hall at the time of Tier 1, Tier 2 and Tier 3 examinations. He submits that the handwriting in those documents were those of the scribe in the Tier 1 and Tier 2 examination, whereas, during the Tier 3 test he had himself written the documents in the presence of the invigilator of the examination since he had no assistance in that examination. He submits that it is evident from the reply statement that the respondents would seek the copies of the supporting documents at the time of document verification as the candidates are admitted provisionally till then. Hence, the documents provided by the applicant at the time of Tier 1 and Tier 2 examinations including the certificate produced by him at Annexure A-8 at the time of Tier 2 examination were taken fully into -21- consideration. He was then allowed to engage his own scribe and provided the facility of compensatory time. He had produced a similar certificate (Annexure A-4) while appearing for the Tier 1 examination and it was also allowed. No objections were raised at the time of both the examinations as the respondent SSC had acted according to the provisions in the rules, which stipulated production of relevant documents at the stage of document verification only. Thus, he reiterates that not permitting him the compensatory time in the last and final stage of the process of examination was arbitrary. In any case, at the time of document verification, he had produced the required certificates from the competent authority as required by the notification.
21. We have carefully considered all the above contentions. At the outset we would make it clear that normally in such cases, we do not interfere in the process of recruitment/examination and scrutiny of documents/answer sheets etc., especially if the process is carried out by superior recruiting bodies such as the Union Public Service Commission (UPSC) and Staff Selection Commission (SSC) etc. This is so, as it has been underlined by a number of judgments by the Hon'ble Supreme Court that in such matters the professional recruiting bodies (such as these Commissions) should be allowed to conduct their recruitment procedure and conduct the examination process in the way they know best. It has been laid down that it is not left for the Courts and Tribunals to interfere in this process in such cases, unless there is a clear case of malafide or discrimination or error or legal malice -22- which has been established in the process. In this matter it does appear to us that there can be some sympathy for the applicant's position that having allowed him to sit for the first two tiers of the examinations on the basis of the documents that were shown by him during those stages as well as having allowed him the facility of scribe along with extra time, it is indeed suprising that at the time of the skill test/typing test, which is of a qualifying nature, he was suddenly prevented from availing the facility of additional time. In that sense, it appears on the face of it that there could be an element of arbitrariness to be detected in the stand taken by the respondents. If it was allowed to the applicant to appear in the first two more important tiers of the examinations on the basis of the documents that he had produced and declared to the authorities at the centres, what provoked the change at the qualifying stage?
22. On the other hand, the respondents accept that later the applicant did produce the acceptable certificates signed by the competent authorities at the time of document verification. However, this was only as a result of an interim order of this Tribunal. Thus their point appears to be that even if applicant was allowed to appear for the Tier 3 examination and if had cleared the same at the time of document verification his candidature would have been rejected as all the certificates produced and declared by him for all the three Tiers were not issued by the competent authorities. Hence, his candidature would have inevitably been rejected is the conclusion that can be drawn from their endorsement/remarks made during document -23- verification in regard to the applicant. In other words, because the relevant earlier produced certificates were signed by an Assistant Surgeon and not by the competent authority, even if he was permitted to write all three tiers of the examinations, it appears to us that what the respondents are contending is that his candidature had to be rejected by them at the time of document verification.
23. We have certain misgivings about this procedure adopted by the Commission as it in effect amounts to allowing the candidates to appear for each tier of the examination on the mistaken belief that their documents have been found in order at the earlier stage only to find later to their shock that the documents are not acceptable during document verification on a technical ground. While this does not amount to malafide, we are of the opinion that this is against the principle of consistency in consideration of candidature at an examination. Thus, in the overall nature of the facts and circumstances, we feel that some relief should be given to the applicant. We feel that this is particularly so as persons with disability are being recruited by the public authorities only during the last few years and the disability can be of different types. Hence, there could be confusion about documentation to be produced, especially in these initial stages. In this, we are also guided by the fact that the authenticity or validity of the disability under which the applicant has applied for consideration for the post is not at issue. In other words, the fact that he has 40% Specific Learning Disability is not questioned by the respondents either in their reply statement or in any -24- of the documents provided. It is just that the documents produced by him were not signed by the competent authority during the initial production by him of the same. When this was made clear he approached the appropriate authorities and was able to produce the documents signed by the correct competent authority during document verification, a fact which has also been noted by the respondents. Also, his documents were accepted in the main two tiers, which actually count for his merit position in the examination but rejected only at the time of a qualifying typing test/skill test.
24. On the above considerations, we are of the view that the procedure adopted which has resulted in the rejection of his candidature on a technical ground at the very last stage should be interfered with. We are also guided in this by the assertion made by the applicant, which is not denied by the respondents, that the quota for PwD candidates in such examinations tends not to be filled up to the extent that is required and vacancies remain. Further, it is clear from the details of the cut off marks provided that there is a legitimate expectation that the applicant would have qualified in terms of the marks in the Tier 1 and Tier 2 examinations. Hence, we are disposing of this matter with a direction to the respondents to allow the applicant to appear for the skill test/typing test once again after providing him the facility of additional time of five minutes over and above the normal time for the test, as is allowed for the persons with disability who provide Certificates regarding Physical Limitation for the Examinee to Write. The -25- applicant shall attend the said test with the prescribed certificates signed by the competent authority. The same shall be duly considered by the Commission/its representatives while conducting the test. In case the applicant qualifies in the said test, he may be included in the list of qualified candidates if his marks in the concerned first two tiers of the examination are sufficient to allow his qualification as per the rules for his category. In this regard, we have also noted that a post has been kept aside under this quota in the State of Kerala. The applicant can be considered for appointment against the same if he so qualifies. All action in this regard shall be completed by the respondents within a period of 45 days from the date of receipt of a copy of this order. The applicant is also directed to extend his full cooperation to respondents in this regard.
25. The O.A is disposed of with these directions/observations. We make no order as to costs.
(Dated this the 8th day of August 2023)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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List of Annexures in O.A.No.180/00147/2023
1. Annexure A-1 - A copy of the Disability Certificate No.D1- 158/JA/21 dated 23.02.2021 issued by the District Hospital, Aluva.
2. Annexure A-2 - A copy of the Disability Certificate No.KL0881320020169737 dated 23.02.2021 issued by the Government of India.
3. Annexure A-3 - A copy of the Unique Disability ID issued by the Government of India.
4. Annexure A-4 - A copy of the Notification for Combined Higher Secondary (10+2) Level Examination, 2021 issued by the 2nd respondent.
5. Annexure A-5 - A copy of the Certificate dated 19.02.2022 by the Assistant Surgeon, CHC Kalady.
6. Annexure A-6 - A copy of the Notification F.No.11/1/2021-C-I/1 dated 16.12.2022 issued by the Under Secretary of the 2nd respondent.
7. Annexure A-7 - A copy of the Hall Ticket issued by the 3 rd respondent.
8. Annexure A-8 - A copy of the Certificate dated 03.01.2023 by the Assistant Surgeon, CHC Kalady.
9. Annexure A-9 - A copy of the Marks details of the applicant issued by the 3rd respondent.
10. Annexure A-10 - A copy of the Screenshots of email dated 10.01.2023 and the reply dated 11.01.2023.
11. Annexure A-11- A copy of the Notification for final document verification for the qualified candidates uploaded in the website.
12. Annexure A-12- A copy of the Email dated 25.03.2023 send to the 3 rd respondent.
13. Annexure A-13 - A copy of the Marks details of the applicant from the website of Staff Selection Commission Circular.
14. Annexure A-14 - A copy of the Results notification F.No.11/1/2021- C-I/I dated 27.04.2023.
15. Annexure A-15 - A copy of the RTI Request and the answer sheet provided by the Staff Selection Commission.
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16. Annexure A-16 - A copy of the RTI reply dated 24.04.2023 issued by the respondents.
17. Annexure A-17 - A copy of the Representation dated 24.04.2023 to the 2nd respondent.
18. Annexure A-18 - A copy of the Screenshot of the website of Department of Empowerment of Persons with Disability, Government of India.
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