Central Administrative Tribunal - Delhi
Amit Yadav vs Cag Of India New Delhi on 23 January, 2023
1 OA No. 339/2022
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 339/2022
Order reserved on: 12.12.2022
Order pronounced on: 23.01.2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Mr. Anand S. Khati, Member (A)
1. Sh. Amit Yadav
S/o Sh. Mukesh Kumar Yadav
R/o RZF-503, 3rd floor, Netaji Subhash Marg,
Raj Nagar Part-2, South West Delhi
Delhi-110077
Age 29 years, Group C
....Applicant
(By Advocate: Mr. Prashant Kumar with
Mr. Kaoliang Poukanei)
Versus
1. Comptroller & Auditor General
Through its Chairman
Comptroller & Auditor General of India,
Pocket-9, Deen Dayal Upadhyaya Marg,
New Delhi-110124.
2. Staff Selection Commission
Through its Chairman,
Block No.12, CGO Complex,
Lodhi Road, New Delhi-110003.
... Respondents
(By Advocate: Mr. S.S.Hooda and Mr. Piyush Gaur)
ORDER
By Hon'ble Manish Garg, Member (J) In the present OA, the applicant is seeking following reliefs and interim relief:
2 OA No. 339/2022
"Relief:
1. Appointment of applicant be made for the post of Auditor in CAG at the earliest and appointment be considered from the date if accrued.
2. The Applicant‟s Seniority & other benefits not to be hampered.
3. The posting prospects of the applicant should not be hampered and as a matter of revenge should be given any punishment posting but rather as per his state selection preference after decision of the judgment.
Interim Relief:
Pass any order/direction restraining the respondents from allotting the sub judice vacancies to any other candidate or carry forward the vacancy in the subsequent years till the finality of decision of this Hon‟ble Court."
2. Brief facts:-
2.1 The applicant is a person with benchmark disability (PwBD) having a disability of 55% under the Mental illness category suffering from Obsessive Compulsive Disorder (OCD) & Bipolar disorder. He has been on medication for the same since 2017.
2.2 He is currently working with Punjab & Sind Bank, Rewari, Haryana as Probationary Officer on regular basis from 10th June 2022.
2.3 Prior to this, he was working as a Multi Tasking Staff at the Ministry of Defence since 11.10.2021 under PwBD category.
2.4 The Staff Selection Commission (SSC), respondent No.2 herein, conducted Combined Graduate Level Examination, 2018 (CGLE-2018) for filling up Group-B & C posts. He appeared in the recruitment process and successfully 3 OA No. 339/2022 qualified the exam and was recommended for appointment as Auditor in Comptroller and Auditor General (CAG) of India, respondent No.1 herein but the dossiers of the applicant were returned by CAG to SSC on 28.09.2019 claiming that the applicant is not suitable for the post of Auditor and that he may be re-allocated to any other suitable department. 2.5 It is submitted that the applicant belongs to the category of "Person with benchmark disability" defined u/s 2 (r) of the Rights of Persons with Disabilities Act, 2016 (RPWD Act) which came into effect from 19.04.2017 repealing old Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act). While the old law under Section 33 provide for 3% reservation for 3 categories, the new law provides for 4% Reservation under corresponding Section 34. The Section 34 provides for another 1% reservation jointly for two new recognized categories PwBDs under clauses (d) & (e) of sub-section 1 of Section 34. PwBDs with Autism, Intellectual Disability, Mental Illness (MI), Specific Learning Disability (SLD) have been categorized under clause (d) & Multiple Disabilities under clause (e). This is pertinent to mention that SSC in its official advertisement clubbed up both categories under the heading "Other PwD" category and did not mention specific posts reserved for the aforesaid new categories. The post of Auditor remained recognized for other PwD which includes 4 OA No. 339/2022 mentally ill in both the lists of vacancies notified in due course.
2.6 The first ever list of vacancies containing tentative vacancies were notified by the SSC on 27.12.2019 in which 2 seats for the post of Auditor in CAG stood earmarked against this "Other PwD" category and 4 seats for another senior post Assistant Audit Officer in CAG a Group 'B' post stood earmarked for Other PwD.
2.7 At the last stage of post preference i.e. Tier IV on 27.02.2021 the applicant was called physically at SSC HQs. for Document Verification and Post Preference selection. The applicant had no role but just to mark his choices from the list of eligible posts provided by the SSC which was entered in their computer generated form called "ONLINE DATA VERIFICATION SHEET" by the staff. The applicant had absolutely no role whatsoever in choosing the choices preference orders. The online data verification sheet was filled up by the Commission's staff through his computer which had automatically generated Codes" for Eligible Posts under Entry 3.1 so there is no chance that applicant has chosen his pool of eligible posts by his choice. It is a false submission and vehemently denied.
2.8 The SSC has time and again reiterated that once a preference is chosen by a candidate it is not open to backtrack and such a step becomes irreversible, then why 5 OA No. 339/2022 should the respondent no. 1 not be estopped from applying the principle of Promissory Estoppel laid down in S. Ananda And Ors. Vs State of Tamil Nadu & Ors. (1983) IILLJ 277 Mad. 2.9 The disability certificate of the applicant is as under:-
"Disability Certificate Issuing Medical Authority, Mahendragarh, Haryana Certificate No.: HR1620819930010198 Date: 02/05/2018 This is to certify that I/We have carefully examined Shri Amit Yadav Son of Shri Mukesh Kumar Yadav Date of Birth 09/01/1993 Age 25 Year(s) Male, Registration No. 0616/00000/1805/0342274 resident of House No. So Mukesh Kumar Yadav Co Dhanpat Singh, Vill Bachini Post Bawania Distt Mahendragarh, 175 - 123034 Sub District Mahendragarh, District Mahendragarh State/UTs Haryana Whose photograph is affixed above, and I/We satisfied that:
(A) He is a case of Mental Illness (B) The diagnosis in his case is brain (C) He has 55% (in figure) Fifty Five percent (in words) Permanent in relation to his (part of body) as per guidelines (to be specified).
The applicant have been submitted the following document/s) as proof of residence Nature of Document(s): Aadaar card"
3. The respondents have opposed the grant of relief(s) in OA inter alia contending as under:-
3.1 The CAG being the indenting department, had forwarded to SSC the suitable posts identified by the Expert Committee for persons with the benchmark disability. The indent does not include persons with mental illness.
3.2 For the post of Auditor, the benchmark disabilities identified were (i) Deaf and Hard of Hearing, (ii) Locomotor Disability, (iii) Leprosy cured, (iv) Dwarfism, (v) Acid Attack 6 OA No. 339/2022 victims and persons with multiple disabilities from the aforementioned disabilities.
3.3 The benchmark disability of Mental Illness was not one of the identified disabilities for the post of Auditor.
3.4 An Expert Committee was set up to identify suitable posts for persons with benchmark disabilities in the Indian Audit & Accounts Department. The Expert committee so formed identified the posts suitable to benchmark disabilities.
Even the Expert Committee did not identify the post of Auditor suitable for persons with benchmark disability of Mental Illness.
3.5 Section 34 provides of RPwD Act-2016 provides that every appropriate government shall fill up, 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), as tabulated below:
Clause Disabilities benchmark prescribed Percentage under Section 34 (i) A Blindness and Low Vision; 1% 7 OA No. 339/2022 B Deaf and Hard of Hearing; 1% C Locomotor disability including 1% cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
D Autism, intellectual disability, specific 1% learning disability and mental illness E Multiple disabilities from amongst 1% persons under clauses (a) and (d) including deaf blindness in the post identified for each disabilities 3.6 Further, it is not the case that a particular disability cannot be excluded. In a meeting held to discuss implementation of the RPwD Act, 2016, Shri KVS Rao, Joint Secretary (AIS) stated that if the Expert Committee feels that any particular sub-category of disabilities cannot be accommodated, a conscious decision to exclude that particular sub-category can be taken by the concerned Cadre without the need of consulting the Department of Empowerment of Persons with Disabilities, and that consultation with the Department is only necessitated when a blanket relaxation is sought from the entire provisions of the RPwD Act, 2016.
3.7 Again it is not the case that the Respondent has taken blanket relaxation from providing the reservation under the RPwD Act, 2016. In fact, the Respondent has provided the 8 OA No. 339/2022 mandated 4% reservation u/s 34 of the Act. Therefore, there was no need for the respondent department to seek exemption in terms of the Act.
3.8 The Respondent also had an internal meeting of their Expert Committee constituted for identification of the various Gr. B' and 'C' posts, in this department, suitable for benchmark disabilities as per provisions under section 33 (ii) of the Right of Persons with Disabilities Act-2016.
3.9 The Meeting was also attended by Dr. S.N. Deshpande, HoD, Psychiatry, Dr. RML Hospital who also offered her expert views. That even as per the recommendations of the Internal Expert Committee, the benchmark disabilities identified for the post of 'Auditor' are Deaf and Hard of Hearing and Locomotor Disability. That further, as per the Job Profile of Auditor, it involves extensive touring and interaction with the Officers and Staff of Auditee Organizations and when posted in the Office, they assist the Supervisory Officers in processing the Inspection Reports and day to day administrative work among others.
3.10 Therefore, the decision to exclude Mental illness from the list of disabilities was a conscious decision, guided by an Expert and not taken randomly.9 OA No. 339/2022
3.11 Further, Mental Illness, by its very nature is a disability which may cause extreme behavioral changes, and the job profile of Auditor requires extensive touring and changes station which may impact the behavior of the Applicant. The very nature of the disability may make it difficult for the person to carry out the work expected from them, and it may lead to further deterioration of their condition. Further, if a person suffering from such a disability is employed. It will be the responsibility of the Department to make sure that the working condition and environment is suitable for them as well as for others the Respondent has a duty towards the Department as well as the Applicant himself to ensure that not only is he able to comply with the job profile but at the same time is comfortable with the work environment and able to thrive.
4. Analysis:
4.1 SSC initially did not mention vacancies reserved for applicant‟s category "Other PwD". The SSC in its official advertisement dated 05.05.2018 just extended the right of reservation to these newly recognized disability categories but did not mention specific posts reserved for these new categories. The advertisement provided that vacancies will be notified in due course and the candidates belonging to new categories were asked to apply under "Other PwD category". 10 OA No. 339/2022 The post of Auditor remained recognized for other PwD which includes Mentally Ill in both the lists of vacancies notified in due course. The first ever list of vacancies containing tentative vacancies were notified by the SSC on 27.12.2019 in which 2 seats for the post of Auditor in CAG stood earmarked against this "Other PwD" category and 4 seats for another senior post Assistant Audit Officer in CAG a Group „B‟ post stood earmarked for Other PwD. Thereafter, in the Final List of vacancies dated 15.03.2021, the above mentioned posts again stood earmarked for the Other PWD category. In the final list of vacancies, the post of Auditor was coded as D33 at entry no.24. Thus, the post of Auditor remained recognized for the Other PwD category in both the list of vacancies the final being dated 15.03.2021.
4.2 Therefore, the recruitment process completed only after recommendation of the applicant on 01.04.2021 and final list with firm number of vacancies got notified on 15.03.2021 meaning the right of reservation was extended on 05.05.2018 but fructified and got fortified only on 01.04.2021 during which the notification was effective and a binding law on all departments under Central Government for the purposes of suitable posts identification for different categories of PwD. 11 OA No. 339/2022 4.3 The internal communication dated 30.09.2021 by CAG to SSC is contrary to letter and spirit of provisions of the Disability Act.
4.4 This Tribunal vide record of proceedings granted interim relief to the effect that "In the facts and circumstances of the case, as an interim measure, it is ordered that the respondents shall not create any third party interest against the post, for which the applicant has been selected, till the next date of hearing."
4.5 Sections 32 and 33 came up for consideration before this Court in a judgment reported as Government of India through Secretary & Anr. v. Ravi Prakash Gupta & Anr., wherein it has been held as under:
"29. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non- availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since 12 OA No. 339/2022 in 4 (2010) 7 SCC 626 the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise."
(Emphasis Supplied)
14. The said judgment was considered by this Court in Union of India & Anr. v. National Federation of the Blind & Ors. wherein it was held as under:
"37. Admittedly, the Act is a social legislation enacted for the benefit of persons with disabilities and its provisions must be interpreted in order to fulfil its objective. Besides, it is a settled rule of interpretation that if the language of a statutory provision is unambiguous, it has to be interpreted according to the plain meaning of the said statutory provision. In the present case, the plain and unambiguous meaning of Section 33 is that every appropriate Government has to appoint a minimum of 3% vacancies in an establishment out of which 1% each shall be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor disability or cerebral palsy.
38. To illustrate, if there are 100 vacancies of 100 posts in an establishment, the establishment concerned will have to reserve a minimum of 3% for persons with disabilities out of which at least 1% has to be reserved separately for each of the following disabilities : persons suffering from blindness or low vision, persons suffering from hearing impairment and the persons suffering from locomotor disability or cerebral palsy. Appointment of 1 blind person against 1 vacancy reserved for him/her will be made against a vacancy in an identified post for instance, the post of peon, which is identified for him in Group D."
4.6 In Civil Appeal No.4811 OF 2022- (Arising out of SLP (Civil) No. 18854 OF 2019) titled as "Ajay Kumar Pandey & Ors. vs. State of U.P. & Ors., the Hon‟ble Apex Court based on aforesaid decisions, it was observed as under:-
"The identification of the posts which can be filled up by candidates suffering from disabilities is the responsibility of the appropriate Government under Section 32 of the Act, 13 OA No. 339/2022 which is the State Government in the present case. Once such exercise has been carried out, the appropriate Government in terms of Section 33 of the Act shall reserve 1% each for the visual disability, hearing impairment and locomotor disability. The identification of the posts and the category of the disabled candidates who could be appointed against the posts reserved is the power conferred on the appropriate Government. Such exercise and the reservation of posts could not have been interfered with without holding such reservation to be totally arbitrary, irrational or against the objectives sought to be achieved and on judicially recognised principles."
4.7 In the present case, the applicant cannot be faulted since the Appropriate Government ie (UOI in present case) had not identified the post in respondent department till 1.4.2021(date on which merit list was upload on website and the applicant stood recommended), the applicant had filed up his preference as on 27.2.2021 based on the merits. 4.8 Post of "Auditor" in CAG not identified /earmarked for mental illness was within the realm of the SSC and CAG for which he had no knowledge or notice. Therefore, the applicant had filed his preference as per merits for which otherwise he fulfilled all other eligible criterion. Even assuming for sake of arguments, that the applicant could not have given post of Auditor in CAG due to "Mental Illness "but at the same time he ought to have been put to notice by SSC to give suitable prefernce for alternative suitable post. 14 OA No. 339/2022
5. The Hon‟ble Apex Court in Civil Appeal No.6924 of 2021 titled as Ravinder Kumar Dhariwal & Anr. Versus Union of India & Ors., has held as under:
"28. Article 14 of the Indian Constitution states that "the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India".
The right to equality under the Indian Constitution has two facets - formal equality and substantive equality. While formal equality means that every person, irrespective of their attributes must be treated equally and must not be discriminated against; substantive equality is aimed at producing equality of outcomes through different modes of affirmative action. The principle of reasonable accommodation is one of the means for achieving substantive equality, pursuant to which disabled individuals must be reasonably accommodated based on their individual capacities. Disability, as a social construct, precedes the medical condition of an individual. The sense of disability is introduced because of the absence of access to facilities. This Court in Vikas Kumar v. Union Public Service Commission (2021) 5 SCC 370 , recognised the social construction of disability and the necessity to provide reasonable accommodation to such persons to comply with the full purport of the equality provisions under the Constitution. One of us (DY Chandrachud,J) writing for the three- judge Bench observed:
"45 The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion. Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individuals‟ dignity and worth is respected. Under this route, the "powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realization of these ends." (emphasised) PART C The provisions under Chapters VII and VIII are in furtherance of the principle of reasonable accommodation which is a component of the guarantee of equality. This has been recognized by a line of precedent. This Court in multiple cases has held that the principle of reasonable differentiation, recognizing the different needs of persons with disabilities is a facet of the principle of equality. In Jeeja Ghosh v. Union of India, Justice A K Siri observed:
"40. In international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-15 OA No. 339/2022
discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms."
Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavorable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation." (emphasis supplied). The facets of non-discrimination that guide the PwD Act are threefold: (i) right to formal equality, where no person shall be discriminated based on her disability;
(ii) affirmative action in pursuance of substantive equality under Section 33; and
(iii) reasonable accommodation of persons with disabilities such as provided under Section 47. There may be no specific provision in the PwD Act - unlike the RPwD Act - which provides persons with disability the right of non- discrimination. However, since the principle of substantive equality (of providing equal outcomes through affirmative action and reasonable accommodation) is premised on the Rajive Raturi v. Union of India, (2018) 2 SCC 413; Disabled Rights Group v. Union of India, (2018) 2 SCC
397. (2016) 7 SCC 761.
PART C principle of non-discrimination, there is no reason to hold that the principle of non- discrimination, of treating every person equally irrespective of her disability does not guide the entire statute.
29. The headings of all the provisions in Chapter III of the PwD Act use the phrase „non-discrimination‟. Section 44 reads, non-discrimination in transport; Section 25 reads as „non-discrimination on roads‟; Section 46 reads as „non- discrimination in the built environment‟; and Section 46 reads as „non- discrimination in Government employment‟. As discussed above, all these provisions are premised on the principle of reasonable accommodation in public places and places of employment. The intent behind using the phrase „non- discrimination‟ in the marginal note is to emphasise that reasonable accommodation is a facet of equality and non-compliance with the principle of reasonable accommodation would amount to discrimination. By no stretch of imagination, can it be said that the principle of non-discrimination is limited to Section 47 of the PwD Act. Section 47 only provides the right of non- discrimination with regard to specific forms of discrimination during the course of employment. The general right against discrimination runs through the entire statute. The limited 16 OA No. 339/2022 nature of Section 47 becomes apparent when it is compared with Section 20 of the RPwD Act. Section 20 of the RPwD Act reads thus:
"Section 20 - Non-discrimination in employment (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, PART C exempt any establishment from the provisions of this section.
(2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (3) No promotion shall be denied to a person merely on the ground of disability.
(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (5) The appropriate Government may frame policies for posting and transfer of employees with disabilities." (emphasis supplied)
30. Section 47 of the PwD Act, unlike Section 20 of the RPwD Act, does not contain a provision in the nature of sub-Section (1) of Section 20 which provides that a government establishment cannot discriminate against a person with a disability in "any matter" relating to employment. While we are not interpreting the contours of "any matter" used in Section 20 of the RPwD Act in the present case, it would suffice to say that Section 20 of the RPwD Act casts a net of protection wider than Section 47 of the PwD Act.
31. Moreover, India is a signatory to and has ratified the United Nations Convention on the Rights of Persons with Disabilities 22. Article 5 of CRPD "CRPD"; India ratified the Convention on 1 October 2007. PART C incorporates the principles of non-discrimination and equality, in both its formal and substantive forms. Article 5 reads as follows:
"5. Equality and Non-Discrimination:
1. States Parties recognise that all persons are equal before and under the law and are entitled without any 17 OA No. 339/2022 discrimination to the equal protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention." (emphasis supplied) Clause 2 stipulates that the State parties must prohibit discrimination on the basis of disability, and ensure protection against discrimination to persons with disability. Clauses 3 and 4 state that to ensure de facto equality, the States shall promote equality and non- discrimination by taking appropriate steps for reasonable accommodation, and such steps taken shall not be considered as discrimination.
32. It is settled law that if two interpretations are possible, then the interpretation which is in consonance with international law or gives effect to international law must be used.23 Since Article 5places the States under an obligation to provide both formal and substantive equality, an interpretation of the PwD Act that furthers the principles mentioned in Article 5 must be undertaken. Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759; Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228; Justice Khanna in ADM Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.
PART C Therefore, even though the PwD Act does not have an express provision laying down the general principle of non-discrimination against disabled persons, it must still have to be read in the statute.
C.1.3 A New Dawn: Appellant‟s Rights under the RPwD Act
41. Section 3 of the RPwD Act states that persons with disabilities must not be discriminated against on the ground of disability, and the appropriate government shall ensure that persons with disability enjoy the right to live with dignity. Section 2(h) of the RPwD Act defines discrimination as follows:
"(h) "discrimination" in relation to disability, means any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the PART C recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and 18 OA No. 339/2022 denial of reasonable accommodation;" Section 20 of the RPwD Act states that no government establishment shall discriminate against any person with a disability in matters relating to employment. The disabled employee also has a right to reasonable accommodation and to access a workplace without barriers. It further provides that no disabled employee shall be terminated, reduced in rank, or denied promotion because of the disability. Before proceeding to the merits of the case on the validity of the disciplinary proceedings vis-a-vis the provisions of the RPwD Act, the applicability of the 2021 notification to the facts of the present case will have to be determined. As explained above, on the repeal of the PwD Act by the RPwD Act, the 2002 Notification also lost its force of law. Between 27 December 2016, when the RPwD Act had come into force and 18 August 2021, when the 2021 notification was issued, there was no exemption notification in force. The Special Leave Petition was instituted on 5 October 2020. In Ambalal (supra), it was held that when a lis commences, all rights and obligations of the parties get crystallised on that date.
Therefore, the rights of the parties would freeze as on the date of filing the Special Leave Petition. In the Special Leave Petition filed before this Court, it was submitted that the initiation of disciplinary proceedings is discriminatory and violative of the provisions of the RPwD Act. Therefore, the right to non-discrimination in matters of employment provided under Section 20, accrued to the appellant on the filing of the Special Leave Petition since the 2021 notification had not been notified at the relevant time. Thus, the 2021 notification would have no application to the facts of this case. PART C C. 2 Mental Disability and Discrimination Before proceeding to analyse the validity of the disciplinary proceedings under the provisions of the RPwD Act, we find it imperative to refer to the national and international legal framework governing the rights of persons with mental disabilities.
C.2.1 The Indian Legal Framework
42. The National Mental Health Survey of India 2015-16 (Prevalence, Pattern and Outcomes), was a study undertaken by the Ministry of Health and Family Welfare, Government of India in collaboration with the National Institute of Mental Health and Neuro Sciences, Bengaluru. The survey estimated that nearly 150 million individuals in India suffer from one or more mental illnesses. 27 The Indian Lunacy Act 1912 was enacted to provide treatment and care for lunatic persons. Section 3(5) defined a „lunatic‟ as an idiot or a person of unsound mind. The Act dealt with the treatment of lunatics in asylums, and the procedure for the „treatment‟ of such persons. The Act proceeded on the premise that „lunatics‟ are dangerous for the well-being of society and the fellow humans who inhabit the planet. Section 13 of the Act provided wide powers to the police officers to arrest persons whom they have reason to believe to be „lunatics‟. 19 OA No. 339/2022
43. The Mental Health Act 1987 28 was enacted, as the Preamble states, „to consolidate and amend the law relating to the treatment and care of mentally ill persons, to make better provision with respect to their property and affairs". This G Gururaj, M Varghese et. al., National Mental Health Survey of India, 2015-16: Prevalence, patterns and outcomes, (2016) NIMHANS Publication No 129, available at http://indianmhs.nimhans.ac.in/Docs/Report2.pdf. "1987 Act" PART C Act replaced the Indian Lunacy Act. The 1987 Act was a huge transformative leap from the Lunacy Act which did not confer any right to live a life of dignity to mentally ill persons. However, even the 1987 Act did not confer any agency or personhood to mentally ill persons. The Act did not provide a rights-based framework for mental disability but was rather restricted to only establishing psychiatric hospitals and psychiatric nursing homes, and administrative exigencies of such establishments. Under the Act, the „mentally ill person‟ was defined as a person „who is in need of treatment by reason of any mental disorder other than mental retardation‟.
44. The Mental Healthcare Act 2017 29 was enacted by Parliament in pursuance of India‟s obligations under CRPD, repealing the 1987 Act. Section 2 (s) of the 2017 Act defines „mental illness‟ as follows:
"(s) "mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence;" Section 2(o) of the Act defines „mental healthcare‟ to include both the diagnosis of the mental health condition of persons and rehabilitation for such persons with mental illness:
"(o) "Mental healthcare" includes analysis and diagnosis of a person's mental condition and treatment as well as care and rehabilitation of such person for his mental illness or suspected mental illness;" "2017 Act" PART C Section 18(1) provides that every person shall have a right to access mental healthcare and treatment in Government-run or funded hospitals. Sub-Section (2) of Section 18 states that the right to access mental health care shall be available to everybody equally, without any discrimination based on gender, sex, caste, political belief or such. It further states that the treatment shall be provided in the manner that is acceptable by the persons having mental illness and their caregivers. Sub-Section (1) of Section 19 states that every person with mental illness shall have a right to live in, be part of and not be segregated from society.
Section 20 of the Act states that every person with mental illness shall have a right to live with dignity, and shall have a right to be protected from inhuman treatment in mental 20 OA No. 339/2022 healthcare establishments. Section 30 stipulates that the appropriate government shall take measures to ensure that the provisions of the Act are given wide publicity through various forms of media. Clause (b) of Section 30 states that programmes to reduce the stigma associated with mental illness must be planned and implemented. Section 30(c) states that „appropriate government officers including police officers and other officers must be provided appropriate awareness and sensitization on mental health‟. Section 115 of the 2017 Act states that notwithstanding anything in Section 309 of the Indian Penal Code, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the Penal Code.
45. The 2017 Act provides a rights-based framework of mental healthcare and has a truly transformative potential. In stark difference from the provisions of the 1985 Act, the provisions of the 2017 Act recognise the legal capacity of persons PART C suffering from mental illness to make decisions and choices on treatment, admission, and personal assistance. Section 2(o) includes within the definition of mental healthcare - diagnosis, treatment, and rehabilitation. Section 4 of the Act states that every person with mental illness shall be „deemed‟ to have the capacity to make decisions regarding their mental healthcare and treatment if they are able to understand the relevant information, and the reasonably foreseeable consequence of their decision. Sub-Section (3) of Section 4 states that merely because the decision by the person is perceived inappropriate or wrong by „others‟, it shall not mean that the person does not have the capacity to make decisions. The recognition of the capacity of persons living with mental illness to make informed choices is an important step towards recognizing their agency. This is in pursuance of Article 12 of CRPD which shifts from a substitute decision- making model to one based on supported decision-making. 30 Article 12 of CRPD reads as follows:
"Article 12 - Equal recognition before the law
1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.[...]" (emphasis supplied) Explanation 1 to Article 12 CRPD by UN CRPD."
6. Is applicant incapable to perform a function as "Auditor" in CAG?
21 OA No. 339/2022
7. It is noticeable character in the facts of the present case, the only medical expert member in the meeting Dr. Deshpande recommended that Mentally Ill persons are also fit for the group B & C posts. Ironically, while all the members of the meeting were of the opinion that Mentally Ill along with other sub categories under Sec 34(1) (d) person be excluded from group B & C posts of the CAG, it is Dr. Deshpande who dissented in Point no.7 of the minutes of the meeting. Dr. Deshpande in fact, recommended that mentally ill persons be considered for the CAG. In this manner, CAG excluded all persons under sub category of Sec 34 (1)(d) from CAG group B&C posts and retained only multiple disability candidates.
8. As noticed above, the applicant is working as PO in Bank. The contention of respondent/CAG is that they have duly provided reservation as per Section 34 of the RPWD Act by providing total 4% reservation. Out of which requirement of providing 1% for the categories under clause (d) and (e) of the Section 34 has been complied with because they have provided 1% reservation to the PwDs falling under (e) clause and now even if they excuse PwDs from (d) clause it will not be a violation of law. It is contrary to law laid down by the Hon‟ble Apex Court in Ravinder Kumar Dhariwal & Anr. (supra). Section 34 clearly rules that there has to be one percent reservation for the PwDs categorized under clauses 22 OA No. 339/2022
(d) and (e) and not (d) or (e) i.e. reservation has to be made available to both the categories under clauses and not either of the two. Therefore, the correct course of action would have been to provide reservation to both the categories i.e. under clause (d) and (e) jointly whoever amongst them secures merit would be allotted the post. In this case, the applicant has been recommended as per correct interpretation of law because he was also qualified in the merit list along with other candidates under Multiple disability falling under clause (e). Thus, in the correct course of action, both should have been appointed against one percent reservation.
9. It is submitted that vide order dated 01.04.2021, final result with list of recommended candidates and allotted departments, was notified by the SSC with Auditor post coded as D33.
10. In Bhavya Nain vs. High Court of Delhi, W.P. (C) 5948/2019 (MANU/DE/1027/2020), Hon'ble Delhi High Court directed to appoint a person with Mental Illness as Judicial Officer in Delhi. It was also held that the Registry of Delhi High Court had no competence to exempt the post of judicial officer for PwDs of clause (d). It would amount to denial of reservation and breach of section 20 & 34. 23 OA No. 339/2022
11. In Vikash Kumar v. UPSC, Civil Appeal No. 273 of 2021 {(2021) 5 SCC 370}, Hon'ble Supreme Court overruled an earlier judgement rendered by a two judge Bench decision in the case of V Surendra Mohan v. State of Tamil Nadu 32 (Mohan) which had held that to be a judge one has to possess certain faculties of hearing, sight and speech. Hon'ble Supreme Court found it in violation of principles of reservation and that any PwBD can become judge.
12. In Rahul Jumani Vs Central Board of Direct taxes, Department of Revenue, Ministry of Financce & Anr. Complaint Case No.12987/1011/2021, Chief Commissioner for PwD has recommended the respondent to provide appointment according to the MSJE notification dt. 04.01.2021 and held it to be binding on the same CGL 2018 exam to which this applicant is also a candidate. The CCPD held that, whatever posts have been identified suitable for categories of PWDs has to be followed in true spirit by all the departments of the Central Govt. The complainant was a candidate having Specific Learning Disability under the same category that this applicant belongs to.
13. During the course of hearing, a suggestion came from the learned counsel for the applicant that even though he is eligible for the post of Auditor, but based on his assessment 24 OA No. 339/2022 in CGLE 2018 examination, he can be given suitable post as set out hereunder:-
"Post suitable for the candidate as per Ministry of social Justice and Empowerment (Department of Empowerment of Persons with Disabilities) notification no. CG-DL-E- 13012021-224370 dated 04.01.2021 and based on CGLE 2018 Examination including post of Auditor in CAG with same and higher grade pay as of Auditor in CAG. Posts are as follows as per eligibility in online data verification sheet:
Post Name of Department Post
Code
B22 Central Board of Direct Taxes (DEPTT. Inspector of Income
OF REVENUE) Tax
B29 Comptroller & Auditor General of Divisional
India Accountant
D33 Comptroller & Auditor General of Auditor
India
D38 Ministry of Communications (D/o Accountant/Junior
Telecommunication) O/o CGCA Accountant
a. Posts of Assistant/Assistant Section Officer in the Ministry of Electronics and Information Technology has been identified as suitable for Mental Illness category by the Ministry of Electronics & IT irrespective of the MoSJ notification no. CG-DL-E-13012021-224370 dated 04.01.2021 b. post of Income Tax Inspector under PwD-Others category has been left vacant under SSC CGLE 2018 recruitment as SSC has revised the result and allocated Mr M. Shriram post of Assistant Section Officer in Ministry of External Affair who previously allocated post of Income tax Inspector in CBDT. Hence vacancy is left vacant. Post has been identified suitable as per MoSJ Notification no. CG-DL-E- 13012021-2243 70 dated 04.01.2021 but not by the indenting department.
c. Post of Divisional Accountant has been identified suitable as per MoSJ notification no. CG-DL-E-13012021-2243 70 dated 04.01.2021 and it is the post available in CAG Department only. Divisional accountant post reserved for PWD others were filled by the SSC CGLE 2018 recruitment process."
14. Bipolar is mood swings, emotions, impulse, what is needed is right kind of professional assistance and 25 OA No. 339/2022 rehabilitation. The persons having bipolar disease are victim of circumstances. Such persons should be facilitated in a friendly and pleasant way that makes them feel relaxed and calms the nervous system. The bipolar persons neither can be treated with bias nor can be regarded as shame to the society. The stand adopted by intending department, i.e., CAG by itself is discriminated to the provisions of Section 34 of the 2017 Act qua the categories which are sought to be capable of performing function as Auditors. The action of the respondents defeats the purpose of 2017 Act. The paramount interest of the State is to sub-serve the aims and objects of the 2017 Act and, therefore, the persons with mental illness without any intelligible differentia cannot be discriminated qua the other diseases which fall in the zone of consideration under the provisions of RPW Act.
15. Illustrative list of celebrities diagnosed with OCD and bipolar disease, who have either talked about or living with the symptoms of the condition, have reached their peaks in their career, to name a few are:-
OCD -
David Beckham Justin Timberlake Katy Perry Deepika Padukone Lonardo Dicaprio 26 OA No. 339/2022 Bipolar -
1. Mariah Carey - Singer, songwriter
2. Robert Downey Jr. is an Academy Award nominee and Golden Globe winning actor
3. Ted Turner - Billionaire media mogul Ted Turner is the founder of both Turner Broadcasting and CNN.
4. Jane Pauley - Journalist, television host and author
5. Catherine Zeta-Jones - An Academy Award winning actress
6. Selena Gomez Singer, actress, and producer
17. We express valuable assistance of young lawyers namely Sh. Kaoliangpon Kamei, Sh. Prashant Kumar and Dr. Surinder Singh Hooda and Sh. Piyush Gaur appearing for respective parties.
18. In view of the above discussion, the return of dossier vide communication dated 30.09.2021 is bad in law and is hereby quashed and set aside. The OA is allowed. The applicant is also entitled to the protection of Section 20(4) of the RPwD Act. The applicant‟s suitability on medical grounds can be assessed by an Independent Medical Board set up by CAG for the post of "Auditor". Based on such medical assessment, applicant may be offered appointment to the post 27 OA No. 339/2022 of Auditor. The said exercise be carried out within a period of two months from the date of receipt of the certified copy of the judgment.
19. In the event, applicant is found unsuitable for the post of "Auditor" by the Independent Medical Board, he shall be entitled to alternative offer of appointment to alternative suitable equivalent assignment/post in another department in consultation with Ministry of Social Justice and Empowerment and SSC while re-assigning/re-allocating the applicant to an alternative post, it become necessary that his pay, emoluments and conditions of service must be protected.
20. OA is allowed in aforesaid terms. No order as to costs.
(Anand S. Khati) (Manish Garg) Member (A) Member (J) /sd/