Central Administrative Tribunal - Hyderabad
K.V. Ramana vs The Director, O/O Director General Of ... on 30 June, 2004
Equivalent citations: 2005(3)SLJ61(CAT)
JUDGMENT
K.R. Prasada Rao, J. (Vice Chairman)
1. The applicant who is a physically handicapped person, challenged the proceedings dated Nil June, 2003 in No. E16/KW/2003-04 on the file of the 2nd respondent and sought for quashing the same including the selection of the 5th respondent to Group-D (Peon) post in the office of the 3rd respondent, as being contrary to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and also opposed to the principles of natural justice, equity and fair play and also vitiated by mala fides and further declare the circulars/letters sub-categorising the Orthopaedically Handicapped as PH-OA, PH-OL, issued by the 1st respondent as also the Comptroller and Auditor General of India as illegal and in violation of the provisions of the Persons with Disabilities Act, 1995, further to declare that the circular of the Comptroller and Auditor General of India dated 20.3.2003 as illegal and in violation of the provisions of the Persons with Disabilities Act, 1995, further to declare the judgment and the order of the Chief Commissioner dated 9.5.2003 in Case No. 2225 of 2003 as illegal and in violation of the provisions and consequently direct the respondents to consider the case of the applicant for appointment to the post of Group-D (Peon).
2. The facts which are relevant for the disposal of the present O.A. are briefly as follows:
The applicant is Physically Handicapped person with disability of 60% as per the medical certificate issued by the Competent Authority in respect of the Orthopaedically Handicapped candidates. His disability relates to right leg. On 4.1.2003, the Deputy Director of Audits, Air Force and Navy, ABE Park, Visakhapatnam, issued notification inviting applications from the eligible Physically Handicapped persons to the post of Group-D (Peon). As per the said notification, the post of Group-D (Peon) is reserved in favour of the General -- Physically Handicapped -- One Arm Affected (Right or Left) (a) Impaired reach (b) Weakness of grip (c) at axis. On 7.1.2003, the applicant applied for the said post in response to the said notification under the category of Physically Handicapped Persons with orthopaedic disability. By the date of the said notification, the applicant was just about to complete 34 years of age. Hence, this is the last chance for the applicant to seek public employment. But the applicant did not receive any call letter for the interview. Therefore, he approached this Tribunal by filling O.A. No. 332/2003 which came to be disposed of by this Tribunal at the admission stage itself on 7.4.2003, directing the respondents herein and the Senior Audit Officers ABE Park, Vinod Nagar, Visakhapatnam to conduct interview in respect of the applicant on 8.4.2003 subject to his eligibility for the post notified. Thereafter on 8.4.2003 the applicant was allowed to attend the interview pursuant to the order passed by this Tribunal. But, subsequently the applicant came to know that the 5th respondent herein was selected to the said post and the applicant has not been selected since his arm is not affected and he does not fall under the sub-categorisation Physically Handicapped, for whom the post is reserved under the notification. The applicant contended in the present O.A. that the sub-categorisation made for the Physically Handicapped Persons under the notification issued restricting the selection to only one arm affected person for the reserved General post of Physically Handicapped is not permissible under the law and that it is in violation of the provisions of "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. At the instance of the applicant, the Visakhapatnam Handicapped Service Welfare Society, registered under the Societies Registration Act, submitted a representation to the District Collector, Visakhapatnam expressing their grievance about the notification sub-categorising the Orthopaedically handicapped persons restricting the selection only to one arm affected persons. Thereafter, the District Collector, Visakhapatnam in his letter dated 24.5.2003 sent the said letter to the respondents 1 and 2. However, the respondents rejected the representation of the society. The applicant, therefore, approached this Tribunal by filing the present O.A. seeking for the above reliefs.
3. The respondents 1 to 4 filed their reply statement contending that the said sub-categorisation of the post notified restricting the same to one arm affected category of Physically Handicapped persons has been done under the instructions of the Director General of Audit, Defence Services, New Delhi who is the Cadre Controlling Authority and the Head of the Defence Audit Department under the control of the Comptroller and Auditor General of India, New Delhi. One post reserved for One Leg Affected under the Physically Handicapped category and another post reserved for One Arm Affected under the Physically Handicapped category were allotted to Pune Branch Office of the Defence Audit Department for filling up the said post. One post of Partially Deaf under the Physically Handicapped category was allotted to the Branch Office of Defence Audit Department at Dehradun and one post of Partially Deaf under the Physically Handicapped category was allotted to the Branch Office of the Defence Audit Department at Jammu. The respondents contended that the said action taken by the 1st respondent, who is the Cadre Controlling Authority, is permissible under the provisions of Section 33 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. Since the applicant does not come under the sub-category of One Arm Affected Physically Handicapped category, he could not be selected for the post notified at Visakhapatnam, the Branch Office of the 3rd respondent. The authorities found that the 5th respondent who comes under the said category is suitable and eligible for the said post and, therefore, they selected him for the said post. The action taken by the authorities in restricting the eligibility for the said post to the One Arm Affected Physically Handicapped category has been upheld by the Chief Commissioner for Persons with Disabilities who is empowered under Section 58 of the Act, by his order dated 9.5.2002 in case No. 2225/03. The respondents, therefore, prayed for dismissal of the present O.A.
4. The applicant sought for additional reliefs by way of amendment challenging the circulars issued by the 1st respondent, the Controller and Auditor General of India, dated 21.3.2003 and the judgment and order of the Chief Commissioner for Persons with Disabilities in Case No. 2225/03 by seeking for amendment of the O.A. with the leave of this Tribunal and sought for declaration that the said circular and the judgment are illegal, and in violation of the provisions of the Persons with Disabilities Act, 1955.
5. The 5th respondent filed his separate reply statement contending that he was selected to the said reserved post since he is eligible for the said post and as he falls under the One Arm Affected Sub-category of Physically Handicapped Persons and the applicant has no locus standi to challenge his selection.
6. We have heard the arguments advanced by the learned Counsel for the applicant Mr. P. Rajasekhar and the learned standing Counsel for the official respondents Mr. K Narahari and the Counsel appearing for the respondent No. 5.
7. The official respondents mainly contended in the present O.A. that the sub-categorisation of the posts reserved for the Physically Handicapped persons distributing them to the various Branch Offices has been done by the 1st respondent and the post to be filled up for Physically Handicapped under General quota at the office of the 3rd respondent has been reserved to the sub-category of One Arm Affected under the said instructions issued by the 1st respondent. It is further contended by them that the said action taken by the 1st respondent is permissible under the provisions of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (For short "the Act"). In order to appreciate this contention, we find it necessary to extract the provisions of Section 33 of the Act which are hereunder :
"Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from,
(i) blindness or low vision;
(ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disability;
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
8. Thus, it is seen from the above provisions of Section 33 of the Act that, out of 3% of vacancies to be reserved for Physically Handicapped Persons, one percent each can be reserved for persons suffering from the above 3 categories of disabilities. But, it is nowhere mentioned in the above provisions of the said section that the said reservation of 1% posts can be restricted to any particular city or cities for the purpose of filling up of vacancies arising in the offices located there. The locomotor disability is defined in Section 2, Clause (o) of the Act which is as follows:
"Locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form cerebral palsy."
9. Since the above said post notified under the notification issued by the 3rd respondent for Physically Handicapped Persons falls under the category of Locomotor-Disability, the allottees are not entitled to sub-categorise the same by restricting it to the persons with One Arm Affected only and denying the eligibility for the said post in respect of Physically Handicapped Persons suffering from Locomotor disability in respect any one of their legs. Further, we find that the distribution of the posts reserved for the persons suffering from Locomotor disability to the various Branch Offices of the Director of Audit Department at Pune, Dehradun, Jammu and Visakhapatnam in the manner done by the 1st respondent, clearly amounts to discrimination among the persons belonging to the same class and denial of equal opportunity to the Physically Handicapped persons falling under the category of Locomotor disability. Further, the allotment of the said post only to the Branch Offices of a particular city would amount to denial of equal opportunity to the Physically Handicapped persons of the said category residing elsewhere. Further, Rule 38 of the Rules, 1996 lays down the form and manner of notification of vacancies. Clause (iv) of the said rule specifies the manner in which the number of vacancies for Physically Handicapped persons are to be notified. As per the same, there are only 3 categories; (i) Orthopaedically Handicapped; (ii) Visually Handicapped and (iii) Hearing Impairment. Thus, it is clear from the provisions of Section 33 of the Act, read with Rule 38, the respondents are left with no discretion to sub-categorise among the Orthopaedically Handicapped Persons. We, therefore, find that the sub-categorisation of the Orthopaedically Handicapped Persons on the basis of Letters No. 375/A-Admn./6/Gp.D/2001-02 dated 6.5.2002; No. 1805/A-Admn./6/Gp.D/2001-02 dated 22.8.2002 and No. 2445/A-Admn./6/Gp.D/2001-02 dated 1.11.2002 issued from the office of the 1st respondent which are relied upon by the respondents, is not permissible under the law. The instructions issued under the said letters produced as Annexures R-1 to R-3 along with the reply statement, cannot be sustained since they are found to be in violation of Section 33 of the Act and Rule 38 of the Rules, 1996 framed under the Act.
10. The respondents also relied upon the judgment and order in Case No. 2225/02 passed by the Court of the Chief Commissioner for Persons with Disabilities, Noida, U.P., a copy of which is produced as Annexure R-XIII along with the reply statement, in this regard, in support of their contention that the said sub-categorisation is upheld in the said decision. But on a perusal of the said judgment, it is found that the said authority has not considered the question whether the said sub-categorisation of the post is permissible under the provisions of Section 33 read with Rule 38 of the Rules, 1996. On the other hand, the authority only considered the limited question as to whether the required percentage of the posts are reserved for Physically Handicapped persons as required under the provisions of Section 33 of the Act. We, therefore, find that the official respondents are not entitled to justify their action on the basis of the judgment rendered by the said authority in Case No. 2225/2002. It is also not the case of the respondents that the said sub-categorisation of the post has been done on the basis of any functional disability for discharging duties of the said post of Peon. On the other hand, the said post of Peon is identified as being suitable for being filled up by the persons belonging to any of the 3 categories of the Physically Handicapped persons and 5 vacancies are reserved for filling up the said posts from the said 3 categories under the orders issued by the 1st respondent. Therefore, we find that there is no justification for further dividing the posts meant for Orthopaedic disability as relating to Leg and as relating to Arm. All the Orthopaedic disabled persons whether Arm or Leg are entitled to be considered for appointment to the said posts of Peon. We, therefore, find that reserving the post notified by the 3rd respondent exclusively to be filled up by the PH-OA, PH-OL is not permissible under law and the impugned circular instructions issued under Annexures R-1 to R-3 from the office of the 1st respondent are liable to be quashed on the ground that they are discriminatory and violative of Articles 14 and 16 of the Constitution of India and the provisions of "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the rules framed thereunder.
11. In the result, this O.A. is allowed. It is declared that the circular instructions issued from the office of the 1st respondent under the letters dated 6.5.2002, 22.8.2002 and 1.11.2002 (Annexures R-I to R-III) sub-categorising the Orthopaedically Handicapped persons as PH-OA, PH-OL, are illegal and violative of the provisions of "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Articles 14 and 16 of the Constitution of India. It is further declared that the circular of the Comptroller & Auditor General of India dated 20.3.2003 is illegal and violative of the provisions of the Persons with Disabilities Act, 1985. Consequently, the selection of the 5th respondent for the notified post of Group-D (Peon) in the office of the 3rd respondent is hereby set-aside and the respondents 1 to 4 are directed to make fresh selection by considering all the applications received under the Physically Handicapped category including the applications of the applicant and the 5th respondent, without restricting the selections only to One Arm Affected candidates, within a period of three months from the date of receipt of a copy of this order. In the circumstances, we direct the parties to bear their respective costs.