Central Administrative Tribunal - Jaipur
Vikash Kumar Verma vs Department Of Software Technology Park ... on 4 April, 2024
1
OA No. 116/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No. 116/2023
Order Reserved on: 15.02.2024
Date of order: 04.04.2024
CORAM:
HON'BLE MS. RANJANA SHAHI, MEMBER (J)
HON'BLE SHRI LOK RANJAN, MEMBER (A)
Vikash Kumar Verma S/o Shri Gopal Ram Verma aged
about 30 years, R/o VPO-Rampura Thoi, Ward No. - 4,
Dhani -Pathwari, Tehsil - Srimadhopur Dist - Sikar,
Pin - 332719, Presently selected on the post of
Member Technical Staff E-1 (Scientist B), Group -A, in
Software Technology Parks of India. Mobile-
8955342140. Email [email protected].
....Applicant
Shri Vikash Pareek, counsel for the applicant.
VERSUS
1. The Union of India through Secretary to the
Ministry of Electronics and information
Technology, Government of India, Electronics
Niketan, 6, CGO Complex, Lodhi Road, New
Delhi: 110003
2. Director General Software Technology Parks of
India, Plate-B, First Floor, Office Block-1, East
Kidwai Nagar, New Delhi-110023.
3. CAO cum Registrar, Software Technology Parks
of India, Plate-B, First Floor, Office Block-1, East
Kidwai Nagar, New Delhi-110023.
.... Respondents
Shri Anand Sharma, counsel for respondents
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OA No. 116/2023
ORDER
Per : Hon'ble Ms. Ranjana Shahi, Member (J)
The present Original Application has been filed by the applicant praying for the following reliefs:
"In view of above submissions it is most respectfully prayed that this Original Application may kindly be allowed and the respondents may kindly be directed to cancel/set aside the order of Cancellation of candidature for the post of Member Technical Staff - E-I (Scientist 'B') in Pay Matrix Level 10 (Rs. 56100-177500) in SC category, dated 03-02-2023 and give appointment to the applicant as per offer of Appointment dated 30.12.2022 along with the posting order.
Any other relief which this Hon'ble Tribunal deems just & proper in the case may also please be awarded in favour of the applicant."
2. The briefs facts of the case, as stated by the applicant, are that the respondents had invited applications from the eligible candidates for filling up various Group 'A' Scientific and Technical vacancies vide Employment Notification No. 2(4)/1/STPI- 3 OA No. 116/2023 HO/2021-22 dated 18.12.2021 (Annexure A/2), wherein, there was no mention of any medical requirement for the vacancies in the notification. Among the notified vacancies, the applicant was eligible to apply for the position of Member Technical Staff - E-1 (Scientist 'B') in Pay Matrix Level 10 (Rs. 56100-177500). Being eligible on all notified parameters, the applicant made an application in the prescribed manner and on having scored required minimum qualifying marks in written examination and being found eligible for next round i.e. Personal Interview, the applicant was called upon to appear before the selection committee on a scheduled date, time and venue. The applicant appeared before the selection committee for personal interview, as per schedule. On the basis of result of written examination and personal interview held for the aforesaid position, the list of selected candidates was published by the respondents for the post of Member Technical Staff E- 1 (Scientist 'B') in Pay Matrix Level 10 (Rs 56100- 177500) against the Employment Notice dated 18.12.2021. The name of the applicant reflected in the said selection list (Annexure A/4), at serial number 1 4 OA No. 116/2023 of SC Category. Subsequent to publication of the list of selected candidates, the respondents offered the appointment to the applicant to the post of Member Technical Staff E-I (Scientist 'B') in Pay Matrix Level 10 (Rs 56100-177500) in SC Category vide Offer of Appointment Letter bearing No. 2(4)/1/STPI- HQ/2021-22 dated 30.12.2022 (Annexure A/5). The applicant states that subsequent to the said Offer of Appointment, the respondents issued a letter to the Medical Superintendent, Shri Kalyan Govt. Medical College and Associated Group of Hospital, Sikar, Rajasthan, for Medical Examination of the applicant for appointment to the aforesaid post vide letter dated 09.01.2023 (Annexure A/6) prescribing and annexing the 'PROFORMA -1' in which the fitness certificate was to be issued. The Medical Board examined the applicant and issued the Medical Certificate in the prescribed 'PROFORMA-1' with the following note:
"Note:- As the department concerned has not provided any medical standards to the examining authority, required for the mentioned post in offer letter and not mentioned whether the post is for technical/non-technical services. Candidate examined has vision defect; colour vision normal. (D-(RE)fe(-1);D-(LE) 6/6; C.V.NM.) 5 OA No. 116/2023 So, medically fit for non-technical service and Unfit for technical service according to existing guidelines.
Final decision is upto appointing authority regarding their appointment."
"Note:- (1) The Board should record their findings under one of the following three categories:
(i) Fit....Fit for Non-technical Services
(ii) Unfit on account of vision for technical services
(iii) Temporary unfit on account of ........"
"Final decision is upto appointing authority regarding this appointment."
Thus, the Board had made its recommendations in absence of applicable rules and guidelines as the respondent had not mentioned anything with respect to applicable rules, required medical standards and the nature of the post offered. Therefore, the Medical Board left the decision to the appointing authority. Hence in absence of knowledge of necessary information like, nature of duties of the post for which the medical examination was done, applicable medical standards, the report of Medical Board expressly fails to express clearly for which position they have found the applicant fit or otherwise unfit and thereby failed to state any valid grounds for rejection. 6 OA No. 116/2023
3. The applicant further states that as per M/o Health OM No. 7(1)10/53-M II, dated 03.10.1953 and OM No. 7(1) 24/53-H. II, dated 16.10.1954, when a candidate is required to produce a medical certificate of fitness from a Medical Board, the Head of the Office concerned should make a written request to Government Medical Officer/Board to have the candidate examined giving full particulars indicating-
"(a) The name and address of the candidate and also the post for which he is a candidate;
(b) The correct date of birth of the candidate;
(c) The date of entry into Government service;
(d) The status and nature of duties of the post;
(e) Specific standards, if any, of physical fitness prescribed for the post;
(f) Whether the candidate has prior to the appointment suffered from tuberculosis.' Hence, the Medical Board was not equipped with the information necessary for consideration of the applicant. The Medical Board had no means to determine if the extent of defect in vision was likely to 7 OA No. 116/2023 interfere with the effective performance of the duties of his appointment and, therefore, submitted a vague and ambiguous recommendation to the appointing authority. The job role for the subject post is of the nature of software/system engineer which requires high level of analytical abilities and application of mind. The applicant claims that he was found physically fit in all respects, except the low vision in one eye. The vision of the left eye of applicant is normal i.e. 6/6 without glasses and colour vision is also normal. The disability is by virtue of the low vision of the right eye, which is measured to the extent of 30%. He asserts that he is not seeking any reservation applicable for "person with benchmark disability", which is defined under Section 2 (r) of The Rights of Person with Disabilities Act, 2016 as-
"person with benchmark disability" means a person with not less than forty percent of a specified disability where specified disability has not been defined in measured terms and includes a person with disability where specified disability has been defined in measured terms, as certified by the certifying authority. However, the present application is by 8 OA No. 116/2023 virtue of applicant being a 'Person with Disability' as defined under section 2(s) of the said Act, which means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others. The present disability of the applicant is no hindrance in effective and efficient performance of the duties of the subject post. The applicant is not seeking any reservation for posts reserved for the 'Persons with Benchmark Disability' but has moved this application against discrimination and prejudice towards disability of the applicant.
4. The applicant states that vide letter dated 03.02.2023 (Annexure A/1), the candidature of the applicant for the post of Member Technical Staff E-1 (Scientist 'B') in Pay Matrix Level 10 (Rs 56100- 177500) in SC category has been cancelled stating that the said post is a Scientific & Technical cadre post of STPI and as per status conveyed by Medical Board in respect of the applicant is "Unfit on account of vision for technical service." The respondents also 9 OA No. 116/2023 failed to consider if the position is otherwise fit to be considered as Non-technical, only for the purpose of necessarily medical standards. Rather; the respondents barely relied on the nomenclature and the nomenclature of the said position. The classification of the position vide The Central Civil Services (Medical Examination) Rules, 1957 is such that the only positions in which the duties to be performed and services are concerned with safety of public are classified as Technical. Hence, being aggrieved with the letter dated 03.02.2023 (Annexure A/1), the applicant has filed the present O.A. for redressal of his grievances.
5. In response, the respondents have filed their reply stating that the respondents vide Employment Notice dated 18.12.2021 invited applications from the eligible candidates for various Group 'A' Scientific & Technical posts including 11 vacancies (UR-04, EWS- 01, OBC-03, SC-03) for the post of Member Technical Staff E-I (Scientist 'B') in Pay Matrix Level 10 (Rs. 56100-177500). 04 vacancies were kept reserved for PH category (02-Hearing Handicapped, 01- 10 OA No. 116/2023 Orphopadically Handicapped, 01-Multiple Disability) under horizontal reservation for the persons with benchmark disability. The applicant had applied under 'SC' category and he had mentioned "No" under 'Physically Handicapped' column in his application. The employment notice was published by the respondents as per provision contained in its bye-laws which states that the advertisement would inter-alia contain the eligibility condition i.e. age limit, educational qualification (essential/desirable), experience (essential/desirable) etc. strictly in accordance with the Recruitment Rules for each category along with the number of vacancies under each category i.e. GEN/SC/ST/OBC (including minority communities, if any)/ persons with disabilities (PWDs) etc.
6. The respondents further state that while the appointment to the post of MTS E-1 (Scientist 'B') was offered to the applicant vide letter dated 30.12.2022, it was clearly mentioned under clause 4 that "Your appointment/joining to the post is subject to submission of Medical Fitness Certificate from the Medical Board and...". The Medical Board had 11 OA No. 116/2023 declared the applicant "Unfit on account of vision for technical services."
7. The respondents state that the post of Member Technical Staff - E-I (Scientist 'B') offered to the applicant is a Group 'A' Scientific & Technical Post in the respondent-organization, which is an autonomous society under Meity, Govt. of India. Since the post offered to the candidate is technical Group 'A' post, therefore, general guidelines are applied for medical examination by the Medical Board. The Medical Board submits the medical examination report in the prescribed proforma applicable for Group 'A' posts. In the letter issued by the respondent to the Medical Board for conducting medical examination of the applicant, the name of the post i.e. Member Technical Staff E-I (Scientist 'B') in Level-10 was clearly mentioned which itself envisages the nature of post i.e. "Technical Post". The medical authority had asked about the nature of the post telephonically also and it was confirmed by the CAO-cum-Registrar of STPI that the post is of core technical nature.
12OA No. 116/2023
8. The respondents also state that the Medical Board has, while sending the medical report of the applicant, left the final decision upto the Appointing Authority. Considering the medical report and that the post offered to the applicant is scientific and technical cadre post of STPI, the Appointing Authority decided to cancel the candidature of the applicant. The applicant was informed accordingly vide letter dated 03.02.2023 (Annexure-A/1).
9. Heard both sides and perused the material available on record.
10. After hearing both the sides and perusing the documents produced before us by either sides. It emerges that the applicant applied for the post of Member Technical Staff-E-I (Scientist 'B') in pay Matrix Level-10 (Rs. 56100-177500) and he qualified the written examination as such was called for personal interview. The applicant appeared before the selection committee for personal interview. On the basis of the written examination and personal interview, the applicant was selected, as such offer of 13 OA No. 116/2023 appointment letter dated 30.12.2022 was issued by the respondents and he was asked if the offer is accepted by him then he may report alongwith medical examination certificate on 01.02.2023 to the CAO-cum-Registrar, Software Technology Parks of India, STPI, New Delhi-110023 for completion of joining and other formalities and further posting directions. By the above said offer of appointment, he was asked to get medically examined by the medical board and produce medical fitness certificate to STPI Headquarter. As such he appeared before the medical board which found him otherwise fit except low vision in right eye to the extent of 30%. The vision of the left eye of the applicant was found normal 6/6 without glasses and color vision was also found to be normal. It is pertinent to mention that Medical Board specifically gave note which reads as below:
"Note:- As the department concerned has not provided any medical standards to the examining authority, required for the mentioned post in offer letter and not mentioned whether the post is for technical/non-technical services. Candidate examined has vision defect; colour vision normal {D-(RE)fe(-1);D-(LE) 6/6; C.V.NM.} So, medically fit for non-technical service and Unfit for technical service according to existing guidelines.14 OA No. 116/2023
Final decision is upto appointing authority regarding their appointment."
"Note: (I) The Board should record their findings under one of the following three categories:
(i) Fit .... Fit for Non-technical Services
(ii) Unfit on account of vision for technical services
(iii) Temporary unfit on account of ..........."
"Final decision is upto appointing authority regarding this appointment"
11. Medical Board specifically gave note that the Department had not provided any medical standards, to the examining authority, required for the concerned post in the offer letter and had not mentioned that whether the post is technical/non-technical. As such in the absence of medical standards provided by the department for the concerned post, the Medical Board declared him fit for non-technical posts and unfit for technical posts. The contentions of the applicant that in the advertisement for the concerned vacancy requirements of medical fitness or medical examination was not mandated, as such the respondents cannot subject him to medical examination/for medical fitness in order to give him appointment. We do not agree with this contention of the applicant as para-4, 12 and 14 of the offer of 15 OA No. 116/2023 appointment letter dated 30.12.2022 makes offer of appointment conditional to medical examination by the medical board and production of medical fitness certificate to STPI, HQ. Mere issuance of offer of appointment does not in itself grants appointment.
12. The second contention of the applicant is that he did not seek employment under the reservation applicable for 'person with the benchmark disability' and had competed in his own category of S.C. and having qualified the written examination as well as interview in his own category (where he claims to be at serial number one in the list of SC category) and the respondents claim that the applicant is not medically fit to be considered in the medically fit category. On the other hand, he is medically not so unfit to qualify into category reserved for "person with benchmark disability". Many such cases are coming before us where the candidate is not so disable as to fall in the category of "person with benchmark disability" and on the other hand are medically unfit to a certain extent thereby not finding place amongst the medically fit category as well.
16OA No. 116/2023
13. Although, on one hand, it may not be in public interest to let the functioning of the public service be adversely affected in consequence of employment of people with such physical disability that could adversely impact their performance in a specific role / job ; on the other hand, it is a policy of our state to provide equal opportunities for livelihood and living a dignified life for all our citizens, specially those who are suffering with disadvantage/disability for no fault of theirs, but are yet in a position to perform certain other specific role / responsibilities without any impedance by dint of their qualifications and hard work. The present applicant belongs to this category, but is hampered by policy dilemma/vacuum for people like him. We consider that the policy makers ought to be sensitive and considerate towards them and provide them facilitatory and supportive policy regime to help them avail of adequate opportunities.
14. The applicant has relied upon the judgement of the Hon'ble Apex Court in National Federation of Blind Vs. UPSC & Ors. 1993 SCC (2) 411 wherein their 17 OA No. 116/2023 Lordships have taken a considered view regarding visually handicapped as under:
"After going through the list of the posts identified as suitable for visually handicapped (blind and partially- blind) it is obvious that there are number of posts which are required to be filled through the civil services examination and other competitive examinations conducted by the Commission. Group A and B posts in the category of Administrative Officers (Secretarial-
Senior) and Administrative Officer (Secretarial-Junior) are necessarily to be filled as a result of civil services examination by the Union Public Service Commission. If some of the posts in the Indian Administrative Service and other Allied Services, as identified by the Committee, can be filled from amongst the visually handicapped persons then we see no reason why they should not be permitted to sit and write the civil services examination. We make it clear that once recruited to the lowest level of the service the visually handicapped persons shall not be entitled to claim promotion to the higher posts in the service irrespective of the physical requirements of the jobs. If in the hierarchy of promotional-posts it is found by the Government that a particular post is not suitable for the visually handicapped person he shall not have any right to claim the said post. In the light of the above discussion we partly allow the writ petition and direct the Government of India and the Union Public Service Commission to permit the visually handicapped (blind and partially-blind) eligible candidates to compete and write the civil services examination which is ordinarily held yearly by the Union Public Service Commission. 566 We further direct that they shall be permitted to write the examination in Braille-script or with the help of a Scribe. There shall be no orders as to costs."
18OA No. 116/2023
15. In CWP No. 17024 of 2006 the Hon'ble High Court of Punjab and Haryana at Chandigarh while relying upon the judgement of Hon'ble Supreme Court in Amita Vs. Union of India and another, (2005) 13 SCC 721 wherein the Hon'ble Supreme Court had observed as under:
"That apart, the writ petitioner, although a visually impaired lady had not asked for any special favour for selection to the post of Probationary Officer. The writ petitioner without asking for any favour had only applied for writing the examination for selection not as a reserved handicapped candidate but along with general candidates who were allowed by the Board to sit and write the examination. Since the writ petitioner was similarly situated with other general candidates, and the writ petitioner had not asked for any advantage for being a visually impaired candidate, we failed to understand why she was not permitted to sit and write the examination for the post of Probationary Officer in the Bank. At the risk of repetition, it may be reiterated that the writ petitioner fulfilled all the conditions mentioned in the advertisement for the post. The primary object which is guaranteed by Article 16(1) is equality of opportunity and that was violated by the Board by debarring the writ petitioner from appearing in the examination on the mere fact of disability which was not mentioned in the advertisement and which according to the writ petitioner is not an impediment for the post. We are therefore, of the view that the action of the Board was arbitrary, baseless and was in violation of the right of the writ petitioner under Article 16(1) of the Constitution.
9. In the present case the petitioner has not sought any reservation as a visually handicapped person, therefore, 19 OA No. 116/2023 she as a General Category candidate is entitled to be appointed as Probationary Officer."
16. In the light of the above, we direct the respondents to evaluate the exact medical standards required for the post for which the applicant is aspiring and provide the same to the Medical Board. The medical Board shall re-examine the applicant in the light of the specification provided by the employer department and will ascertain whether the applicant is fit for the specific job he is aspiring for. In case, the Medical Board finds him fit for the same. The respondents shall proceed with their offer of appointment letter if the applicant otherwise fulfils the requirements as well as conditions.
17. The respondents are directed to complete the aforesaid process within a period of six weeks from the date of receipt of a certified copy of this order. Copy of this order also be sent to respondent No. 1 being at the highest executive level and also being a part of the policy-making level in the country for considering our above noted concern/observations in order to design policies to include and support such 20 OA No. 116/2023 citizens who neither strictly fall under the category of persons with benchmark disability nor under fully medically fit category in availing gainful opportunities.
18. Accordingly, the Original Application is disposed off with the aforesaid directions. No orders as to costs.
(Lok Ranjan) (Ranjana Shahi) Member (A) Member (J) !Vv