Central Administrative Tribunal - Bangalore
Shivakumar S P vs South Western Railway on 1 December, 2022
1 OA No.1676/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO NOS.170/01676/2019
170/01677/2019, 170/01678/2019 and 170/01679/2019
DATED THIS THE 1st DAY OF DECEMBER 2022
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
1. Shri Prahalad V.,
S/o late V.Ganesh Shetty,
Aged about 38 years,
Residing at No.35, 9th Cross,
Behind Ganapathy Devastana,
Begur Road, Bommanahalli,
Bangalore - 560 068. .... Applicant in OA No.1676/2019
2. Shri Shivakumar S.P.,
S/o Papanna,
Papanna
Aged about 38 years,
Residing at Shravanabelagola,
Kallamma Temple Street,
Shravanabelagola Post,
Channarayapattana Taluk
Hassan - 573 135. .... Applicant in OA No.1677/2019
2 OA No.1676/2019
3. Shri Gavisiddappa E.,
S/o Erappa Koragi,
Aged about 32 years,
Residing at Bannikoppa,
Koppal - 583 238. .... Applicant in OA No.1678/2019
4. Shri Kalmesh Banavi,
S/o Shankarappa,
Aged about 34
3 years,
Residing at Lakkundi,
Binni Binni Bashaveshwar Oni,
Lakkundi,
Gadag - 582 115 .....Applicant
pplicant in OA No.1679/2019
(ByAdvocate
ByAdvocate Shri Adithya Chakragiri))
Vs.
1. The Union of India,
Deputy Chief Personnel Officer/
Recruitment, South Western Railway,
Hubli - 580 020. ...Respondent in OA No.1676/2019,
1677/2019, 1678/2019 and 1679/2019.
(By Advocate Shri N.Amaresh)
3 OA No.1676/2019
O R D E R (ORAL
ORAL)
Per: Justice S.Sujatha ...........Member(J)
The present original application applications are filed by the applicants under Section 19 of Administrative Tribunals Act, 1985 seeking for the following reliefs:
i) Call for records from the Respondent;
ii) Issue Writ of Mandamus Directing the Respondent to consider the case of the Applicant and appoint him to the posts as notified in Employment Notice No.02/2010 (Annexure A3) issued by the Respondent, in the interest of justice and equity;
iii) Pass any other appropriate order as this Hon'ble Tribunal deems fit in the facts and circumstances of the case, including the cost of this Applic Application.
2. The brief facts of the case as stated by the applicant applicants are that theyy being blind persons had applied for Group 'D' posts of 4 OA No.1676/2019 Helper/Engg., /Engg., Helper/Mech. (C&W, Power), Helper/Elec., Helper/S&T, Helper/Stores, Porter/Optg., Porter/Comml., Safaiwala/Medi, Helper/Mech/WS and Helper/Elec/WS called under the Employment Notice bearing No.02/2010 issued by the respondent. The applicants applicant were called for written examination and after clearing the same, they were ere also called for document verification. Thereafter, the respondent has issued provisional selection list (part) which did not include the name of the applicants.. All India Confederation of the Blind approached the Court of Chief Commissioner for Person Persons with Disabilities, Ministry of Social Justice & Empowerment through its Vice President seeking to represent the case of the applicants and such others for fo denying appointment. The Chief Commissioner for Persons with disabilities disposed of said case and advised the respondent to reconsider the case of the applicant applicants and such other persons who were called for the written examination, based 5 OA No.1676/2019 on Employment Notice No.02/2010.
No.02 2010. Thereafter, the applicant applicants along with similarly situated persons approached the Hon'ble High Court of Karnataka in W.P.No.39641/2014 and W.P.No.9834 W.P.No.9834-9838/2015, the same was dismissed on the ground of maintainability before the Hon'ble High Court. Being aggrieved by the inaction of the respondent in not considering the case of the applicants applicant for the post advertised in the Employment Notice bearing No.02/2010, the applicant applicants have preferred these the OAs.
3. Learned Counsel Shri Adithya Chakragiri re representing the applicants submitted that the respondent had issued Employment Notice No.02/2010 calling for applications from various categories. The respondent has also reserved some of the posts for persons having visual impairment which means and includes total absence of sight. Though the applicant applicants were called for the 6 OA No.1676/2019 written examination and verification of documents after short listing, the applicants applicant were not selected for the reason that they were 100% blind persons.
person . Learned Counsel further ssubmitted that the respondent cannot change the Rule of the game after initiation of process of selection.
4. Learned Counsel Shri N.Amaresh representing the respondents argued that as per Railway Board letter No. No.E (NG)II/2009/RC 2/5/List dated 27.08.2009 (Annexure R2), 96 (NG)II/2009/RC-2/5/List posts were notified for Visually Handicapped and were identified for only low vision candidates and accordingly recruitment has been done for candidates against the notified vacancies for Visually Handicapped i.e., for low vision and nnot for 100% blind. Visually Handicapped candidates who were having 100% visual disability were not selected as no posts suitable to such candidates were available as per the Railway Board letter at Annexure R2. The medical fitness of the 7 OA No.1676/2019 candidates was ascertained from the Railway Medical Authority during the medical examination at the time of document verification. The applicants applicant have not utilised the opportunity extended in the subsequent notifications wherein certain posts were also identified for blind category (100% blind) under Visually Handicapped quota.
5. Amicus Curiae, Dr.S.Iqbal Ahamed and Shri Shivakumar, learned Counsel and formerly Personnel Officers and Law Officers of the Indian Railways, were appointed by this Tribunal requesting the their assistance calling for filing a report. Accordingly, Dr.S.Iqbual Ahamed has filed a report. Para Para-6 of the said report reads thus:
"6. Conclusions:
I. Whether the stand taken by the Respondent that the "Applicant being 'BLIND' was NOT fit for the posts announced" is justifiable under Law:
a. As per the Respondent's reply para 4 page 3, the number of posts reserved for PH candidates was enhanced from 91 to 295 with a breakup of OH OH-96, HH-103, and VH-8 OA No.1676/2019
96. Further the Respondent asse asserted that only 95 (OH-90, HH-01 and VH-04)
04) placed on select list. Thus it can be concluded that 200 posts reserved for PH candidates were NOT filled which included OH--06, HH-102 and VH-92. It is evident that 92 posts reserved for VH were NOT filled.
b. IRREGULARITIES/INCONSISTANCIES IN THE CATEGORIES OF POSTS NOTIFIED IN THE EMPLOYMENT NOTICE 2/2010: On examination of the category and number of posts advertised by the Respondent, it is seen there are many irregularities. The Respondent is bound by the categorization/identification notified by the Railway Board i.e., Annexure R2, but the Respondent violated, for instant 1 post for 'Helper S&T' was announced but as per Annexure -R2 R2 there are two kinds of 'helper posts in S&T' viz 'Carpenter Helper and Helper to Painter' page 42 of his reply. More visible violation is that 2 post of 'Porter Optg' reserved for VH where as this post of 'Porter Optg' has not been identified and notified by the Railway Board. Thus the act of the Respondent in notifying the post of 'Porter Optg' is not only violation of Railway Board's notification but also filling up of such post even with LV candidates endangers safety of the VH as well of travelling public since the porte porter optg performs train passing duties.
9 OA No.1676/2019
c. 70 enhanced VH posts were neither identified nor notified kept undisclosed: Further when the posts are enhanced from 26 to 96 for VH and also for other PH candidates, the Respondent by not notifying the identified posts for the additional 70 VH posts has violated the principle of fairness and transparency.
In view of the above discrepancies the ground taken by the respondent is opined to be not justified. II. With regard to the Respondent's conduct "not warning the bblind candidates that the Blind are NOT fit for the posts and NOT to apply" and further allowing examination, document verification and medical exams leads to the conclusion that there were identified posts vacant for blind persons and the Railway Board's llist of identified posts coupled with non non-filling of 91 post of VH candidates confirm the Respondent's apathy. a. In this regard the Hon'ble Supreme Court in the case of Union of India Vs. National Federation of Blind reported in (2013) 10 SCC 772 in its concl conclusions at para 49 observed that "It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce". Again at para 50 observed that "Even though the Act was enacted way back in 1995, the disabled people have failed to get required benefit 10 OA No.1676/2019 until today" and further expressed and directed the Union of India at para 54 (III) that "The appellant herein shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the non observance of the scheme of reservation for persons with disabilities should be considered as an act of non non-obedience and Nodal Officer in dep department/public sector undertakings/Government companies responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default".
b. The Hon'ble H.C. of Delhi in Dileep Kumar Shukal vs. Union of India and Ors. W.P.(C) 1904/2018 decided on 20.01.2020. In this matter while CAT Principal Bench, New Delhi accepted the plea of the Applicant but the Hon'ble CAT proceeded to hold that since all candidates selected by CSE 2011 had been alloc allocated the various services, completed their professional training, and confirmed at the respective services it merits serious consideration, "any judicial intervention, at this stage, in the matter of allocation of Services of the selected candidates in CSE- 2011, would trigger tremendous amount of de de-stability and upheaval." Hon'ble HC of Delhi while setting aside the order of the Hon'ble CAT, Delhi directed the Respondent, Union of India "ascertain which posts in the IRS (IT) and IRS (C&CE) earmarked for PH category can be allocated for 11 OA No.1676/2019 those with B/LV [para 31(i)] and further directed "examination whether the Petitioner can be accommodated in either the IRS (IT) or the IRS (C&CE) in any such earmarked PH vacancies for B/LV and issue appropriate orders appointing ointing him to such vacancy [para 31(ii)] and also clarified that the Petitioner is entitled to only notional pay and seniority and for arrears of pay."
6. We have carefully considered the rival submissions of the learned Counsel appearing appear for both the parties and perused the material on record.
7. Employment Notice No.02/2010 No.02/2010 (Annexure A3) enumerates the category and number of posts for which recruitment is to be conducted along with reservation details. In the said notification under the the physically handicapped quota for Visually Handicapped (VH) 96 9 posts were re reserved. In the Employment Notice No.02/2010 (SWR Gr.'D') "P "Persons with Disabilities"
reads as under:12 OA No.1676/2019
9. PERSONS WITH DISABILITIES The person with disabilities (PWD) are also eligible to apply for the above posts. They should produce/enclose medical certificate as at Annexure -IV.
In terms of sub-clause sub (c) of Clause 9, Visually Handicapped means :
A) Blindness refers to a condition where a person suffers from any of the following ing conditions viz..
(i) total absence of sight or
(ii) visual acuity not exceeding 6/60 or 20/200 (snellen) in the better
eye with correcting lenses or
(iii) limitation of the field of vision subtending at an angle of 20 degrees or worse.
B) Low Vision: persons with low vision means a person with impairment of visual functioning even after treatment of standard refractive correction but who was uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device (Please enclose the attested copies of the certificate).
8. The stance of respondents that posts notified in the said Employment Notice were identified for only low vision candidates cannot be countenanced. Employment Notice does not specify that the post reserved for Visually Handicapped does not include blind person (100% blind) for the posts advertised. 13 OA No.1676/2019 On the other hand, it categorically explains that total absence of sight is blindness coming under the VH category as per Clause 9(c) of the employment notification No.02/2010. It is based on the recruitment recruitment notification, the applicant applied for the post of Group 'D' against the Visually Handicapped quota and qualified in the written examination. The Employment Notice No.02/2010 includes inviting application from Physically handicapped i.e., OH 35, HH 30, VH 26, initially totalling to 91 posts. It is not in dispute that this 91 posts got enhanced to 295 with a break up of OH-96, OH HH-103 103 and VH VH-96. The recruitment notification No.02/2010 gives the breakup of only 26 posts for Visually Handicapped candidates candidates viz., Trackman Trackman-10, Helper/Eng 2, Helper/Mech. (C&W, Power) Helper/Eng-2, Power)-6, Helper/Elec-2, Helper/Stores Helper/Stores-1, Porter/Optg-2, 2, Helper/Mech/WS Helper/Mech/WS-3, total 26 posts. Further the breakup of the enhanced posts of 70 posts, total enhanced 96 posts is not provided by the rrespondent either at the recruitment stage, or before the Chief Commissioner for 14 OA No.1676/2019 persons with disabilities or in i the reply statement before this Tribunal, except setting up the defence that the post notified are identified for low vision in the Visually Han Handicapped category and not for blind category. The applicants' eligibility regarding educational qualification, Age limit at the time of applying for the post are not in dispute. The conduct of the respondent in permitting mitting the applicant to appear for exa examination, document verification and medical examination etc., has raised legitimate expectation of the applicant.
9. In terms of Section 33 of the Persons with Disabilities (Equal Opportunities) Protection of Rights and Full Participation) Act, 1995 - Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for or persons or class of persons with disability ability of which one per cent, each each shall be reserved for persons suffering from:
15 OA No.1676/2019
i. blindne or low vision:
blindness
ii. hearing impairment:
iii. locomotor disability or cerebral palsy, in the posts identified for each disability.
Section 36 of the said Act makes provision for carry forward of the unfilled vacancies and also for interchange among the three categories of the Physically Physically handicapped candidates. Hence, the respondent ought to have implemented the provisions of Section 33 and 36 as to the reservations to the Physically Handicapped candidates at the rate of 3% which includes 1% to Visually Handicapped.
10. The Hon'ble Apex Court in the case of Siddaraju vs. State of Karnataka and others (C.A.No.1567/2017) has considered the judgment passed in the case of Rajeev Kumar Gupta and others vs. Union of India and others reported in (2016) 13 SCC 153 wherein, it has been held thus:
16 OA No.1676/2019
"23.
23. It is disheartening to note that (admittedly) low numbers of PWD (much below three per cent) are in government employment long years after the 1995 Act. Barriers to their entry must, therefore, be scrutinized by rigorous standards within the legal framework of the 1995 Act.
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 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 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.
25. In light of the preceding analysis, we declare the impugned memoranda as illegal and inconsistent with the 1995 Act. We further direct the Government to extend three percent reservation to PWD in all IDENTIFIED IDENTIFIED POSTS in Group A and Group B, irrespective of the mode of filling up of such posts. This writ petition is accordingly allowed.
allowed."17 OA No.1676/2019
11. The Hon'ble Apex Court has ruled that once a post identified for a suitable person, it must be reserved for persons with disability irrespective of mode of recruitment adopted by the State for filling up of the said post, once posts are identified for blind persons, the purpose behind such identification cannot be frustrated by prescribing prescribing a mode of recruitment which results in denial of statutory reservation taking a restricted stand of identifying for low vision.
12. In the case of Union of India and another vs. National Federation of Blind and others reported in (2013) 10 SCC 772, Hon'ble Apex Court has held thus:
"49) Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right 18 OA No.1676/2019 to make a useful contribution to their own lives and to the lives of their families and community.
50) The Union of India, the State Governments as well as the Union Territories have a categorical obligation under the Constitution of India and under various International treaties relating to human rights in general eral and treaties for disabled persons in particular, to protect the rights of disabled persons. Even though the Act was enacted way back in 1995, the disabled people have failed to get required benefit until today.
51) Thus, after thoughtful consideration consideration,, we are of the view that the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz., "computing 3% reservation on total number of vacancies in the cadre strength" which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29.12.2005, which are contrary to the above reasoning are struck down and we direct the appropriate Government to issue new Office Memorandum(s) in consistent with the decision decisi rendered by this Court."
13. In the light of this judgment, reservation of posts made to Visually Handicapped candidates specifying the posts for 'total absence of sight' sight as Visually Handicapped Handicapped, respondents now cannot do a somersault saying that posts were identified only 19 OA No.1676/2019 for low vision, contrary to the recruitment notification and the objectives of the Act, 1995. The report of the Amicus Curiae placed on record throws light on the issue involved herein.
14. For the aforesaid reasons, we dir direct the respondent to identify suitable posts post for the applicant applicants after recruiting them to Group 'D' posts relaxing the standard of selection regarding age, since such vacancies were were available as notified in the Employment Notice Notice No.02/2010 (Anenxure A3) by accommodating them in any such earmarked V accommodating VH vacancies for Blind/low vision, vision as additional 70 posts were not identified.. Even otherwise by creating suitable posts for them. This whole exercise shall be made by the respondent in an expedite manner, in any event not later than 12 weeks from the date of receipt of the certified copy of this order. Having regard to 20 OA No.1676/2019 peculiar iar facts and circumstances of the case narrated above, we have passed this order and the same shall not be treated as a precedent in general. We place our appreciation on record for the assistance rendered by the Amicus Curiae.
15. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.