Ram Lal Khakhal vs Ministry Of Social Justice And Empowerment And Ors

By filing this OA, the applicant is seeking the following reliefs:-

"A. Direct Respondent No.2 & Respondent No.3 to consider the candidature of the Applicant under the PWD category for the post of „Nurse, General‟/‟Staff Nurse‟ for the vacancies which were released vide Annexure A-3, and quash Annexure A-1, dated 11.08.2017 in as much as it rejects the candidature of the Applicant; and/or

B. Quash Annexure A-2, dt. 29.7.13 & Annexure dt. 7.12.2015 A-3 in as much as they do not include the disability of the Applicant for the post of „Nurse, General‟/‟Staff Nurse‟ and direct the Respondent No.2 & Respondent No.3 to consider the candidature of the Applicant under the PWD category for the vacancies which were released vide Annexure A-3; and/or

C. Pass such further order/orders which this Hon‟ble Tribunal may deem fit and necessary in the interest of justice and direct the respondents to pay the cost of litigation to the applicant."

The grievance of the applicant in this case is against order/rejection notice dated 11.08.2017 issued by Employees‟ State Insurance Corporation (ESIC) vide which his candidature was rejected from being recruited to the post of Staff Nurse in the category of persons with disabilities on the ground that his disability does not fall under the suitable disability ("OL"/"One Leg" category).

Heard learned counsel for the applicant at the time of admission itself.

Since the applicant is one of the candidates for the post of Staff Nurse so advertised by the respondents and the candidates of specific disabilities have been prescribed being eligible to be considered under disability quota for appointment to the said post and admittedly the applicant‟s disability of Kyphoscoliosis is not included in the category of disabilities, we raised the query to the learned counsel for the applicant to apprise us in the aforesaid circumstances, how and under what rules and regulations, the candidature of the applicant has to be considered under disability quota, especially in view of the admitted fact that applicant‟s disability is not one of the disabilities which makes him eligible to be considered under disability quota. Counsel for the applicant has failed to give plausible reply to the said query.

It is trite law that if any disability does not match to the schedule of disability applicable to the post in question, this Tribunal has no authority or power to include the same in the schedule of disability as the same is the subject matter of the authority competent to decide this issue. Since the disability of the applicant as per his own admission in not within the schedule of disability, his candidature cannot be directed to be considered for appointment to the post of Staff Nurse, which is not suitable having regard to the nature of duties and responsibility attached to the said post.

It is further relevant to mention that applicant has also preferred a complaint to the Court of Chief Commissioner for Persons with Disabilities, Ministry of Social Justice and Empowerment, who vide his letter dated 8.5.2018, addressed to the Director (D.D.II), Empowerment Department, New Delhi also opined that this matter is related to policy and the matter was referred for appropriate action. In response to the aforesaid communication, the matter was taken up with the Ministry of Social Justice and Empowerment, which vide its letter dated 29.5.2018 also stated that as per the list of posts identified suitable for persons with disabilities notified by this Ministry on 29.7.2013, the post of nurse has been identified suitable for OL category and the physical requirements attached with the post of nurse are : sitting (s), standing(st) walking(w), manipulating by finger(MF), seeking (SE), reading & writing (RW), hearing (H) and communication (C) and only requested the respondents that they may consider the candidature of the applicant for the post of nurse, if he meets the physical requirements attached with the aforesaid post.

The Hon‟ble Supreme Court in Technical Executive (Anti-Pollution) Welfare Association v. Commissioner of Transport Department and another, (1997) 9 SCC 38, held that it would be for the appropriate Government to take policy decision. The Tribunal is not competent to give any direction to the Government to lay down any policy. Such a direction would amount to encroaching upon area of policy-making which is exclusively within the purview of the Government.

In view of the above facts and circumstances of the case, since the post of nurse has been identified suitable for OL category only, we do not find prima facie case for issuance of direction to the respondents. As such the present OA, being devoid of merit, is dismissed in limine. There shall be no order as to costs.