Central Administrative Tribunal - Delhi
Mohd Faisal Nawaz vs Council Of Scientific And Industrial ... on 29 November, 2024
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Item No. 53 (C-4) OA 3454/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A No. 3454/2017
Reserved on : 18.11.2024
Pronounced on : 29.11.2024
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Mohd. Faisal Nawaz
Age: 34 years
s/o Sh. Abdul Hadi
r/o 873-A, Lane No. 30/4,
Distt. Jafrabad, Delhi-110053 ...Applicant
(By Advocate : Ms. Kawal Preet Kaur)
Versus
1. National Institute of Science Communication
And Information Resources- Council of
Scientific and Industrial Research
Through Its Secretary,
Dr. K S Krishnan Marg
Pusa Campus, New Delhi-110012.
2. Council of Scientific and Industrial Research
Anusandhan Bhawan, 2 Rafi Marg,
New Delhi-110001, India ...Respondents
(By Advocate : Mr. Kaushal Gautam)
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Item No. 53 (C-4) OA 3454/2017
ORDER
Per Hon'ble Dr. Sumeet Jerath, Member (A) :
The instant OA has been filed by the applicant under section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs :-
"a) Direct the respondents to appoint the petitioner to the post of Scientist/Sr. Scientist for the Post Code 04 with retrospective effect, granting all consequential benefits such as seniority, pay scale, etc., effective from the date at which the other applicants were appointed to their jobs;
b) Pass any other order that this Honourable Tribunal may deem fit and just in the interest of the empowerment of all persons with disabilities."
2. The factual matrix of the case as per the learned counsel of the applicant is that the applicant is 34 years of age and is an OBC (Ansari/Julaha) candidate, which is stated to be recognized as a socially backward category. He is orthopedically impaired (PwD-OH) person from Delhi and suffers from Thoracic Kyphoscoliosis (curvature of the spine) with Post Polio Residual Paralysis in his left shoulder since childhood having more than 40% disability, which is permanent in nature. He has completed M. Tech in Nano-Science and Nanotechnology in 2009 from Jamia Millia Islamia, New Delhi, and secured 1st Division. He also completed B.Sc. (Honours) in Electronics securing a 2nd Division in 2004 from Delhi University and M.Sc. in Electronics securing a 3 Item No. 53 (C-4) OA 3454/2017 1st Division in 2006 from Jamia Milia Islamia, as well as completed a 1-year Diploma in Computer Application and Multilingual DTP in 2004. Pursuant to an advertisement published by the respondents, the applicant applied for the Post of Scientist/Sr. Scientist at National Institute of Science Communication and Information Resources (CSIR-NISCAIR) bearing Post Code No. 04 (Science Communication (English) under OBC (PwD-OH) category. As per the aforesaid advertisement, out of the four advertised vacancies, one was reserved for PwD(OH). Learned counsel further stated that as per the screening result declared on 12.05.2015, the applicant along with one more PwD (OH) candidate was shortlisted for the written exam wherein, he was selected and called for the interview. After completion of the recruitment procedure of all the other vacancies of Post Codes 01 (LJBB), 02 (IJAP) and 03 (SKD), the final result was declared on 03.03.2016, in which no candidate belonging to the PwD(OH) category was selected for the aforesaid Post Codes namely 01, 02, or 03. However, the final result of the candidates shortlisted for Post Code 04 was declared on 12.05.2016. It is pertinent to mention that the selected candidates only belonged to the OBC category, and no candidate under the PwD(OH) category was selected, nor were any put in the Waiting List. It is also averred that though the 4 Item No. 53 (C-4) OA 3454/2017 applicant was shortlisted for the interview after clearing a screening and a written exam, under the PwD(OH) category for Post Code 04, no legitimate reason has been provided for his non-selection for the reserved post. He has been denied appointment even though he met all the essential requirements for the post, as well as possessing an excellent academic profile. Moreover, the reason for denial was also not disclosed. Thus, the Selection Committee failed to choose a much deserving candidate who qualified all the stages of selection process. Further, the express stipulation in the advertisement stating that "out of 4 vacancies, one is reserved for PwD(OH)", and the confirmation that all the other candidates selected for the other 3 posts were not PwD candidates, cannot be overruled by any dubious exercise of discretion on the part of the Selection Committee. Therefore, the applicant is fully entitled to be selected for the post in question as he is both a well qualified and a deserving candidate. Aggrieved by the action of the respondents of not appointing him, the applicant has knocked the doors of this Tribunal.
3. The learned counsel of the applicant argued using the following grounds :-
(i) The impugned action of the respondents was in complete violation of Sections 3(1), 3(3), 20(1), 33, 5 Item No. 53 (C-4) OA 3454/2017 34(1) and 34(2) of the Rights of Persons with Disabilities Act of 2016 which states that :-
"Section 3(1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others...
Section 3(3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim...
Section 20(1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section...
Section 33 - The appropriate Government shall-
(1) Identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34(1);
(il) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and
(iii) undertake periodic review of the identified posts at an interval not exceeding three years...
Section 34(1) - Reservation of posts:-
(1) Every appropriate Government shall appoint in every Government establishment, not less than four percent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one percent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one percent for persons with benchmark disabilities under clauses (d) and (e), namely:-
(a) blindness and low vision;
(b) deaf and hard of hearing;6 Item No. 53 (C-4) OA 3454/2017
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:
Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:
Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section...
Section 34(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability.
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government."
n) To provide a fair chance of employment to all persons with disabilities, The Rights of Persons With Disabilities Act, 2016 has a provision of 'carry forward' of reserved seats to the succeeding recruitment year, after which the vacancies should then 'carry forward' to General Categories. However, the Respondent has appointed a candidate from General Category in the same recruitment year (2016) rather than carrying forward the said post for succeeding recruitment year. Since the aforesaid post was identified for the PWD(OH) category, the Proviso to 7 Item No. 53 (C-4) OA 3454/2017 Section 34(2) could also not be undertaken by the Respondents.
o) The impugned actions of the Respondents are also in violation of Article 27(1) and Article 27(1)(a) of the provisions of The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), ratified by India in 2008."
Learned counsel further added that the action of the respondents is was in violation of a Notification from the Ministry of Personnel, Public Grievances & Pensions, DoPT (vide notification No. 36035/3/2004-Estt (Res.) dated 29.12.2005). With a view to consolidate the instructions under the Persons with Disabilities Act of 1995 regarding reservation for persons with disabilities, the said notification called for three percent of the vacancies in case of direct recruitment in group A, B, C and D posts, of which one percent is to be reserved (in the ratio of 1:1:1; i.e. 1% persons suffering from blindness or low vision, 1% hearing impairment and 1% for locomotor disability or cerebral palsy) in the posts identified for each disability. As per the aforesaid statutory provision all the cases of orthopedically handicapped persons would be covered under the category of "locomotor disability or cerebral palsy." In the present case however, no legitimate reason has been provided for not selecting any orthopedically impaired person for the reserved post as per the advertisement and statutory norm. 8 Item No. 53 (C-4) OA 3454/2017
4. The counsel of the applicant also relied upon the following judgments :-
(i) Rajeev Kumar Gupta vs. Union of India 2016 13 SCC
153), wherein the Hon'ble Supreme Court of India has held that:
"24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post."
(ii) Daya Ram Tripathi vs. State of UP & Another (1987 SCR (1) 574), wherein the appellant was a physically handicapped person and had appeared and qualified for the Combined State Services Examination held in February 1982 by the Uttar Pradesh Public Service Commission, but he was offered the post of Manager Marketing and Economic Survey instead of a post in the Provincial Civil Service (Executive Branch). Here the Supreme Court stated as follows :-
"That in this context, I have to make it clear that the physical disability should not be of the nature which may cause interference in discharge of duties and obligations attached to the concerned service. Accordingly if the service is as such that it require continuous use of eye, 9 Item No. 53 (C-4) OA 3454/2017 then in such case reservation cannot be given to the blind persons Having announced their determination, very rightly too in our opinion, to rehabilitate physically handicapped persons, by reserving posts for them in all the services of the Government, the Government cannot now create needless hurdles. The State Civil Service (Executive Branch) is a large enough service which can easily accommodate physically handicapped persons in suitable posts. A direction will, therefore, be issued to the Government of Uttar Pradesh to appoint the appellant to the Uttar Pradesh Civil Service (Executive Branch) with effect from the date on which he should have been appointed in the ordinary course. He will be entitled to all the other service benefits. He is also entitled to costs. The appeal is allowed accordingly".
(iii) Smt. Shruti Kalra vs. University of Delhi & Ors. (2001 (57) DRJ 600) wherein the Hon'ble High Court of Delhi observed that:-
"The aforesaid provision categorically states that in recruitment to even Group 'A' and Group 'B' posts where they have been identified for physically handicapped persons as stipulated in Appendix-II, preference should be given to physically handicapped persons. The post in question is a teaching post and falls within the discipline of humanities. Going by the academic record and other achievements of the petitioner, it is unimaginable as to how petitioner was not found suitable. No doubt it is the function of the Selection Committee to see the suitability of a candidate and the Court cannot assume this role and substitute itself as Selection Committee. However, it is within the jurisdiction of the Court to examine as to whether there was a proper consideration of a candidate for a post by the Selection Committee. In this case the Selection Committee treated her like any other general candidate and that kind of consideration is clearly not valid. The Selection Committee did not adhere to reservation norms. It also did not consider the case of the petitioner in the manner suggested in the Brochure. The Selection Committee obviously did not even bother about the Resolution dated 16th July, 1994 of the University of Delhi, which not only mentions about reservation but specifically mandated that one person should be appointed by each institution during the academic year 1994-95. The respondents, therefore, did not act fairly. The selection by adopting such method of consideration is clearly vitiated. Same applies to the selection procedure 10 Item No. 53 (C-4) OA 3454/2017 adopted by the Selection Committee which met on 2nd August, 1996. Both these selections are accordingly quashed and set aside".
As per the aforesaid statutory provisions, all the cases of orthopedically impaired persons would be covered under the category of "Locomotor Disability or cerebral palsy" u/s 34(1) of the PWD Act of 2016.
5. However, the learned counsel of the respondents vehemently opposed the pleadings of the counsel of the applicant and brought out the following :-
(1) There were four vacancies, one each in four separate positions, as per advertisement no. 2/VII/2014-R&A for recruitment for the post of Scientist in respondent No. I organization. Out of 4 vacancies, one was reserved for PwD(OH). The said 04 vacancies were notified for four posts codes i.e. one seat for each post code. As per the said advertisement, any one of the post code could have been filled up by PwD(OH). It was not necessarily to be accommodated under Post code 04. Two out of four seats were reserved for Other Backward castes and Schedule Caste candidates, while remaining two seats were unreserved. For the purpose of selection in each post code, one has to qualify the category first and thereafter, if PwD(OH) candidate is found suitable, his 11 Item No. 53 (C-4) OA 3454/2017 candidature would have been taken into consideration for selection. In case no suitable PwD(OH) candidate is found suitable, the said seat goes to non-PwD(OH) from relevant reserved/unreserved category. Hence it is wrong to say that the Post code 04 was for OBC- PwD(OH).
(2) The applicant applied for Post Code 04, Science Communication Scientist along with 70 other applicants. After screening of the relevant papers and essential eligibility criteria for the said post, 34 candidates were found eligible based on the parameters as numerated in the minutes of the Screening Committee meeting dated 23/2/2015 and were called for written exam. The written examination was conducted on 12/8/2015 and only 17 candidates, out of 34 turned up to write the test. In the written examination, the applicant got only 33.5 marks out of 100 and was placed at 15th position in the list of 17 candidates. Top 15 candidates from the written exam result were called for interview out of which 13 were present for the interview held on 17.03.2016. It is pertinent to mention here that the highest marks obtained in the written test by a candidate was 76 and based upon performance in interview and other qualifications, a candidate with 62.5 marks in the written test was selected for the lone post of Science Communication Scientist. It was submitted that since no suitable PwD(OH) 12 Item No. 53 (C-4) OA 3454/2017 candidate was found, the selection committee chose non-PwD (OH) candidate for post code 04 from the OBC category. It was further submitted here that the waitlisted candidates namely Surendra Mohan and Huidrom Lokeshwor Singh, both scored 56.5 and 76 marks respectively out of 100, which are way more than the applicant's marks in written examination.
(3) It is further submitted that the selected candidates' marks and waitlisted candidates' marks were way more than the applicant's marks, hence, the applicant cannot challenge the selection process under the said advertisement at all. (4) It is submitted here that total 71 candidates applied for the lone post and after technical scrutiny and screening of their papers, 34 candidates were found eligible for written examination based on the parameters as numerated in the minutes of the Screening Committee meeting dated 23.02.2015.
(5) It is further submitted that out of 34 candidates called for written examination, only 17 appeared for it. In the written exam, the applicant got only 33.5 marks out of 100, whereas the selected candidate got 62.5 marks out of 100 and one of the waitlisted candidate got 76 marks out of 100. In view of the performance in the written test 15 out of 17 candidates who 13 Item No. 53 (C-4) OA 3454/2017 took written test, were called for interview held on 17.03.2016. It may not be out of place to mention here that the applicant was at the bottom of the list among 15 candidates from the written exam result. As per criteria of screening committee, the applicant was called for interview in OBC category and for consideration with other candidates of respective category i.e. OBC, but could not succeed. The applicant was called for interview under OBC category itself but short listing for interview did not qualify him for the post when his candidature did not qualify the interview.
(6) It is submitted that for the purpose of selection in each post code, one has to qualify the category first and thereafter, if PwD(OH) candidate is found suitable, his candidature would have been taken into consideration for selection. In case no suitable PwD(OH) candidate is found suitable, the said seat goes to non- PwD(OH) from relevant reserved category. That it is further submitted that since no PwD (OH) candidate was found suitable, the selection committee chose non-PwD (OH) candidate for post code 04 from the OBC category and thus, the seat towards the PwD (OH) was carried forward and was notified in 2017 notification.
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6. Heard the learned counsel of both the sides ; examined the documents on record and perused the relevant judgments of the Hon'ble Apex Court. Having given our thoughtful consideration to this matter, we are of the considered opinion that the balance of convenience in this case is clearly with the applicant. The respondents under the Persons with Disabilities (PwD) Act, 2016 had clearly mentioned in the advertisement that out of the 4 posts advertised, 1 would be reserved for the PwD. However, we have observed that no PwD candidates have been selected against any of the four posts of Scientists advertised. The applicant had applied against post code 04 and claimed to be the only PwD candidate. He had scored 33.5 marks out of 100 in the written test and having scored more than the cut off marks, emerged meritorious and was called for the interview. If this post was reserved for PwD, then he ought to have been selected on reservation (positive discrimination and affirmative action) ground. The argument of the respondents that the selected candidate got 62.5 marks out of 100 cuts no ice as based on vertical reservation of OBC and horizontal reservation of PwD (inter locking reservation), the applicant should have been declared successful and offered the letter of appointment. It is a travesty of justice that not a single post of Scientist out of the four 15 Item No. 53 (C-4) OA 3454/2017 advertised posts has been offered to a PwD making a mockery of the PwD Act 2016 and an egregious and flagrant violation of Article 16(1) of the Constitution of India. The ratio given in the three judgments of the Hon'ble Apex Court in Rajeev Kumar Gupta vs. Union of India (2016), Daya Ram Tripathi vs. State of UP & Another (1987) and Smt. Shruti Kalra vs. University of Delhi & Ors. (2001) (supra), also give force to the case of the applicant.
7. In the light of the above, the instant OA has merit, deserves to be allowed and is accordingly allowed with a direction to the respondents to consider the case of the applicant for appointment for the post of Scientist/Sr. Scientist for the Post Code 04, if he is otherwise found fit. If the said post is not vacant, respondents are further directed to create a supernumerary post in the interest of justice, within a period of three months from the date of receipt of certified copy of this order. The applicant would also be entitled for notional seniority and fixation of pay and allowances, but would not be entitled to any arrears of pay on the principle of 'No work no pay'. There will be no order as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi) Member (A) Member (J) /Mbt/