Ritasha vs Union Of India & Ors.

I. The applicant a young girl of 26 years suffered some complications at the time of her birth in the year 1997 which resulted in certain disabilities. She suffered cerebral palsy hereinafter referred as CP which is a neurological condition that can affect adversely movement and muscles. The applicant's brain was affected and she suffered along with CP other disabilities like speech disorder and hearing disability as well. The applicant was examined by the authorized medical board at the age of 12 and she was certified suffering from Quadriparesis along with speech and other disorders, means thereby she suffered multiple disability. At the relevant time the term multiple was not in practice, therefore the said term has not been used in the said certificate. A copy of the Disability Certificate dated 09.06.2010 (Annexure A/3).

II. The applicant did not lose her strength and despite of a big challenge of restricted movement of all her limbs and also with speech and language disorder she did pass her B-Tech from NIT, Kurukshetra, Haryana. Respondent no.2 issued notifications vide dated 02.02.2022 (Annexure A/1) inviting applications for Civil Service Examination and the posts after some Increase became 1022 and out of that 41 posts were reserved for the person's with benchmark disability and out of that 8 were reserved for multiple disabilities. The applicant applied being eligible under reserved category of multiple disability. A copy of the application dated Nil is annexed as Annexure A/2. The applicant was issued admit card with Roll No.3541933 to appear in preliminary exam to be held on 05.06.2022. She was also allowed extra time and scribe as per Rules. A true copy of the admit card dated June 2022 (Annexure A/4).

III. The applicant cleared the preliminary exam. A true copy of the clearance of the preliminary examination is annexed as Annexure A/5. The applicant filled Detailed Application Form (DAF-I) for Civil Services (Main Examinaiton-2022) while mentioning her multiple disability along with the disability certificate A-3. A copy of the form dated Nil is annexed as Annexure A/6. The applicant was issued admit card for the main exam by respondent no.2 which was to be held between 16.9.22 to 25.09.2022. She was also allowed to bring her own scribe. A copy of the admit card dated September 2022 is annexed as Annexure A/7. The applicant cleared the main exam while scoring 608 marks and she scored 165 marks in personality test which was conducted later on. A copy of the detailed marks in the main exam and personality test is annexed as Annexure A/8. The circular issued by respondent no.2 for the eligible candidates for personality test vide dated 24.10.2022 (Annexure A/9). The applicant, who was eligible for the same filled DAF-II. A copy of the DAF-II is annexed as Annexure A/10).

IV) It is further submitted by the applicant that respondent no.2 issued letter dated 27.12.2022 (Annexure A/11) vide which the applicant was asked to explain how she had applied under reserved category for multiple disability. The said letter mentions only Section 34(I) of RPD Act, 2016 whereas it needs to be read with Schedule-I of the Act which mentions about specified disabilities and also mentions the definition of multiple disability. The applicant replied to respondent no.2 in time i.e. December 2022 (Annexure A/12). The applicant was allowed for provisional personality test vide letter dated 24.04.2023 (Annexure A/13). The medical examination of the applicant was conducted on 25.04.2023 (Annexure A/14) at New Delhi and she was found fit for all reserved posts. The medical examination of the applicant was conducted by respondent no.4 vide letter dated 23.05.2023 and she was found to be a case of CP mixed variety (Spastic and Athetoid) with Quadraiparesis (LDCP Category candidate). A copy of the medical examination conducted by respondent no.4 is annexed as annexure A/15. A notice/information dated July 2023 was issued by the respondent no.1 while declaring her unfit for all services (Invalid PH). She was granted 11 days to file appeal against the said order. The applicant appealed in prescribed time against the order A/16 and was allowed tube re-examined by the respondent no.4 vide letter dated 15.09.2023 (Annexure A/17) issued by the respondent no.1. The appeal of the applicant was against the medical conducted by respondent No.4, however she was directed again to appear before the same institution.

V) The applicant was re-examined by respondent no.4 vide dated 13.10.2023 (Annexure A/18). She was found to be a case of CP with apraxia of speech, LDCP category candidate. The said medical examination clearly mentions that the applicant with 70% permanent disability is suffering from 2 disabilities entirely different in nature i.e. the movement of the limbs and acute speech disorder but despite of that her category though it should be in Multiple disability has been placed in LDCP category which needs to be reviewed and accordingly a fresh medical certificate with multiple disability deserves to be issued. The applicant, who was totally shattered placed her objections before respondent no.1 vide email dated 23.10.2023 (Annexure A/19) pointing out that she is a case of multiple disability according to the certificate which was issued in 2010 and even also vide certificate dated 13.10. 2023 but no reply has been given by the respondents till date. The applicant has scored All India Rank at 920 and even a candidate from multiple disabilities with a rank of 921 has been granted allocation as IAS and even around 5 seats reserved for multiple disabilities are still lying vacant. A true copy of the filtered list showing the rank of the applicant is annexed as Annexure A/20 and the true copy of the filtered list showing the vacancies in MD category is annexed as Annexure A/21.

VI) The applicant has approached again to the office of Medical Board, Panchkula and she has been issued a disability certificate vide dated 30.05.2023 (Annexure A/22) wherein she has been found suffering from CP to the extent of 64%, suffering from hearing disability 7% and suffering from Dysarthria (a speech disorder/disability) to the extent of 36%. This disability certificate again is evident that the applicant is suffering from multiple disability. The schedule annexed with the Act mentions all the specified disabilities and it shows at (b) the CP as one of the specified disabilities Further at D speech and language disability is also one of the disabilities. Further, the schedule provides the definition of the multiple disabilities. A copy of the schedule annexed with the Act is annexed as Annexure A/23. Even the Rule 18(1) of the Act provides the mechanism of Issuance of the multiple disability certificate. A format has been issued under the said Rule and the same mentions CP at point No.5 and speech and Language at point No.11 and the schedule provides definition of the multiple disability i.e. two or more than two. A true copy of the format for the said certificate is annexed as Annexure A/24.

VII) Further, it is submitted by the applicant that there are nine National Institutes for Empowerment of Persons with Multiple Disabilities, one of them is situated at Chennai. The institution situated at Chennai has given certain examples of the multiple disabilities. The examples downloaded from the site of the said Institution i.e. https./niepmd.n.nic.in >multiple disability is annexed herewith as Annexure A/25. The said examples include CP plus Mental Retardation/Hearing/speech /visual problems and the case of the applicant is squarely covered under CP plus Speech.

The applicant-Ms. Ritasha (Roll No 3541933, Rank -920, CSE-2022) had applied for Civil Services Examination (CSE)-2022 under Multiple Disabilities (MD) subcategory of Persons with Benchmark Disability (PwBD) category on the basis of Examination Notice No.05/2022-CSP dated 02.02.2022 issued by respondent No.3-Union Public Service Commission (UPSC). The applicant was recommended for Service Allocation by UPSC on the basis of the final result of CSE-2022 published on 23.05.2023 under the MD subcategory of PwBD category. Moreover, the disability certificate submitted by the applicant to UPSC indicates that she belongs to the subcategory of Locomotor Disability & Cerebral Palsy (LDCP) only. A copy of the Detailed Application Form of the applicant is annexed as Annexure R/1. The applicant was called for Personality Test/Interview by UPSC on the basis of result of Main (Written) Examination of CSE-2022. The Rule 18 of the CSE Rules, 2022 provides as follows:

Rule 25 regarding 'Reservation against vacancies for Persons with Benchmark Disability' of CSE Rules-2022, provisions are as under:

ii) It is submitted by respondent no.1 that Regulation regarding 'General Guidelines for Persons with Benchmark Disability category' of CSE Rules-2022 has also provisions as under:-

The Medical Examination of the applicant at Central Standing Medical Board (CSMB) level was conducted at Safdarjung Hospital on 25.04.2023 and AIIMS, New Delhi for assessment of her percentage of physical disability on 23.05.2024. Her Functional Classification [FC] was declared as Both Legs and Arms (BLA) and Cerebral Palsy (CP) under the LDCP subcategory and Benchmark Disability Expert Panel (BDEP) declared her as:-

Thereafter, Medical Examination Report of the applicant was uploaded on this Department's website on the dedicated webpage of the applicant and she was provided a chance to prefer an appeal against the findings of the CSMB as per CSE Rules, 2022. Rule 4.5 of Appendix-III of CSE Rules-2022 provides as:-

The Para 20 of this Department's notice for Medical Examination dated 23.01.2023 states as follows:-

A copy of Department's notice dated 23.01.2023 is annexed as Annexure R/4.

iii) The applicant preferred an appeal on 08.07.2023 against the findings of the medical examination of CSMB and, accordingly, her Appellate Disability Medical Board (ADMB) examination was conducted at AIIMS, New Delhi on 13.10.2023 for assessment of her percentage of physical disability. Her Functional Classification [FC] was declared as Both Legs and Arms (BLA) and Cerebral Palsy (CP) under the LDCP subcategory and Appellate Disability Medical Board, AIIMS, New Delhi vide its report dated 03.12.2021 stated as follow:-

A copy of Medical Examination Report of Appellate Medical Board, AIIMS in respect of the appellant is annexed as Annexure R/5.

On the basis of the medical findings as provided by Appellate Disability Medical Board (ADMB), AIIMS, New Delhi, wherein she was not found as Multiple Disability sub-category candidate, the candidature of the applicant was duly cancelled with the approval of the Competent Authority. The Department is responsible for verifying the percentage of disability claimed by the candidate in their disability certificates by way of conducting their Medical Examination by constituting medical boards. However, UPSC checks the PwBD category for which the candidate has applied in the Civil Services Examination and whether he/she has actually submitted supporting documents for the same so that the Medical Examination may be arranged accordingly.

iv) The UPSC did not change the category of the applicant for Civil Services Examination, 2022. The subcategory of the disability cannot be changed as per Rule 26 of the Civil Services Examination-2022 which provides as follows:-

The applicant had applied for CSE-2022 as Multiple Disabilities sub-category. UPSC also recommended her as Multiple Disability sub-category candidate. However, CSMB & ADMB, AIIMS found her to be a Locomotor Disability (not in Multiple Disability) sub-category candidate. Therefore, the candidature of Ms. Ritasha (Roll No 3541933, Rank-920) for CSE-2022 was duly cancelled with the approval of the Competent Authority.

It is submitted by respondent No.2 that the present application has been filed by the applicant challenging the order dated July 2022 whereby the candidature of the applicant was allegedly rejected on account of disability categorization issues. At the outset answering respondent denies the applicant's contention that the rejection was in violation of Articles 14, 16, and 21 of the Constitution of India and the provisions of the Rights of Persons with Disabilities Act, 2016.

ii) The disability certificate bearing No. HR0120319970050309 dated 19.01.2023 was issued to the applicant by the Civil Surgeon, Panchkula, Haryana, certifying 75% permanent Cerebral Palsy disability with diagnosis of Quadri Paresis (operated case Cerebral Palsy). This certificate was issued by competent medical authority following due process and established protocols. The Copy of the disability certificate is annexed as Annexure R/1. Based on the medical certificate issued, the applicant falls under the category of "Locomotor Disability Including Cerebral Palsy" as specified under Section 34(1)(c) of the RPwD Act, 2016, and not under "Multiple Disabilities" as claimed by the applicant under Section 34(1)(e) of the said Act. Further, for the assistance of the Hon'ble Tribunal section 34 (1) of the RPwD Act, 2016, is reproduced here in under:-

iii) The impugned order dated July 2022 was passed after due deliberation and careful consideration of the applicant's disability certificate and her eligibility qua the relevant category. Any rejection, if at all, was founded-upon proper classification of disability in accordance with statutory provisions and was not vitiated by any discriminatory considerations whatsoever. It is humbly submitted that pursuant to Section 34 of the Rights of Persons with Disabilities Act, 2016, distinct categories of disabilities eligible for reservation have been specifically enumerated and defined. Upon perusal of the applicant's disability certificate, it is evident that the same indicates Cerebral Palsy, which squarely falls within the ambit of clause (c) of the said provision and cannot be construed as falling under the category of multiple disabilities as contemplated under clause (e) thereof. It is further submitted that 'Multiple disability', as defined in the Schedule appended to the Rights of Persons with Disabilities Act, 2016, connotes the presence of more than one of the specified conditions. In the instant case, the applicant has been duly certified as having a singular condition of Cerebral Palsy Ahereby precluding any claim for consideration under the multiple disabilities category. Therefore, the submissions of the applicant may be rejected and the impugned order may be upheld as being legally sound and in consonance with the statutory framework.

iv) It is averred by respondent no.2 in the short reply that the medical certificate was issued by competent medical authority following established procedures. The subsequent certificate dated 30.10.2023 was issued through proper appellate process. The answering respondent denies that there was any irregularity in the medical certification process. The certificate correctly categorizes the applicant under Cerebral Palsy and not under multiple disability category, as the applicant does not meet the criteria for multiple disabilities. The reference is hereby made to the Rights of Persons with Disabilities Act, 2016. Upon a proper and literal construction of the said Act, it is submitted that the statute has specifically enumerated definitions and classifications pertaining to various categories of disabilities. Section 34 read conjointly with the Schedule appended thereto expressly delineates and circumscribes the ambit of each disability category.

It is further submitted that "multiple disability" has been specifically defined under the said Act and mandatorily requires the concurrent existence of more than one specified condition as enumerated there under. In the instant case, the presence of such multiple specified conditions has not been duly established or substantiated on record, thereby rendering the claim unsustainable in law. The medical certification by competent authority is conclusive evidence of the nature and extent of disability. The certificate issued to the applicant clearly indicates Cerebral Palsy as the disability, which falls under Cerebral Palsy and not multiple disability category. The reservation benefits are category-specific and cannot be interchanged. A candidate certified under one category cannot claim benefits reserved for another category without proper medical certification establishing eligibility for that specific category. Therefore, all actions taken are in complete compliance with the Constitutional provisions. The principle of Equality before Law (Article 14) has been maintained by treating all candidates with similar disabilities equally. The Right to Equality of opportunity in public employment (Article 16) has been preserved by following prescribed reservation policy. No violation of right to life and liberty (Article 21) has occurred as the applicant's rights have been duly considered within the framework of law. Thus, the administrative decision was taken after due consideration of all relevant factors and in accordance with prescribed rules and procedures. There was no malafide intention or arbitrary exercise of power. Therefore, the respondent no.2 prayed that the applicant is not entitled for interim relief claimed, in the interest of justice.

It is submitted by respondent no.3 that the applicant, a candidate of CSE-2022, applied under Multiple Disability Category and was finally recommended provisionally subject to final determination of her disability by Central Standing Medical Board (CSMB) constituted by DoP&T. The applicant was examined by the AIIMS on 23.05.2023 and was not found eligible for Multiple Disability Category and therefore she appealed against the same medical report and as a result she was re-examined on 13.10.2023. However, the said two certificate issued by the same agency were different. The first certificate was issued by AIIMS dated 23.5.2023 mentioning that applicant to be a case of Mixed variety whereas the Second Certificate dated 13.10.2023 by the same agency stated that the applicant with two disabilities i.e. Cerebral Palsy with Apraxia of Speech. However, she has been placed under LDCP and not multiple disability and hence, her candidature was rejected by DoP&T. The applicant has claimed that she has moved representation dated 23.10.2023 but till date there is no response.

ii) Being aggrieved by the action of the respondents i.e. rejecting her candidature on the basis of the disability measured by AIIMS, has filed the present O.A. The Commission's role is limited t conduct Examination and recommend the candidates against the vacancies indented by the Cadre Controlling Authorities (CCAs). The Commission has finally recommended her on the provisional basis and therefore, no action is pending at the end of the Commission. Further, the Medical Examination, Constitution of Medical Board or Appellate Medical Board and Service Allocation are the subject matter of DoP&T. As such, the applicant is not entitled to get any relief from answering respondent who has become functus officio and may kindly be discharged as such.

iii) Similar categorization by Medical Board was challenged in one of the O.A. in the CAT Principal Bench, New Delhi which was rejected vide order dated 04.07.2023 (Annexure R3/1) in the matter of Atul Ranjan, S/o Dr. Nawal Kishore Singh Vs. UOI etc. in Ο.Λ.No. 3057/2021, wherein it was held that:-

Therefore, respondent no.3 praed that the OA qua answering respondent may kindly be dismissed with costs.

The applicant before this Tribunal is a person suffering from multiple disabilities but is being treated as Locomotors disable i.e. orthopedically disable only though mentioned as LDCP. Simple locomotors and LDCP are entirely two different categories. Locomotors disability is a disability pertaining to limbs whereas the Cerebral Palsy generally is coupled along with other disabilities like hearing, visual, mental or speech disability etc. The applicant is a disable with all the four limbs as per Annexure A/3 and also with hearing disability of 7% and speech disability to the exterit of 36% which is almost close to benchmark disability. The said claim of the petitioner is very much clear vide Annexure A/3, though the nomenclature of MD has not been used since at the relevant time this term was not in vogue. Further, the disability certificate issued vide Annexure P/15 mentions the disability certificate annexure A/3 means confirms the same but has missed the mentioning of the speech disability. Further, the certificate issued vide Annexure P-18 issued by the respondent No. 4 after the appeal moved by the applicant mentions the applicant a case of Cerebral Palsy with apraxia of speech, LDCP Category in relation to all four limbs. Means thereby the speech disability (Apraxia of speech) has been confirmed by respondent No.4, though the nomenclature of MD which is more than one disability and was required to be used has not been used by the respondent No.4 and even respondent No.1 has also not shown its wisdom, if it was not clear in which category the applicant is to be treated to seek clarification in this regard from any competent authority.

ii) Further, the applicant whose disability has had never been obstruction in her will to be self reliant, has had been applying with various other organizations. She did apply to Food Corporation of India in response to its advertisement No. 01/2022-FCI category! II and was called for document verification in PWBD-E(BL:CP) on 16.6.23. Though, she did not opt for the same since already joined in Cananra Bank. However the some examples of the MD covered under clause e have been mentioned in the said advertisement and locomotors plus cerebral palsy at Sr. No.2 makes the applicant as multiple disable. The relevant extract of the said Advertisement 1. Advt. No. 01/2022-FCI category along with a copy of the call letter is annexed as Annexure A/26. Further, the disability certificate dt.30.05.2023 which was considered as certificate of multiple, disability certificates is the fresh certificate issued by the Medical Board, Panchkula and shows the same degree of all the three disabilities as shown in AnnexureA/3. A true copy of the disability certificate dated 30.05.2023 vide which the applicant has been considered in MD is annexed herewith as Annexure A/27.

iii) It Is averred by the applicant in the rejoinder that the applicant was recommended by respondent No.3 under the MD category, the category under which she had applied. It is incorrect to say that the certificate submitted by the applicant indicates that she belongs to the Loco motor disability and Cerebral Palsy only, rather her certificate Annexure A/3 clearly shows that she falls under the multiple disabilities i.e. disabilities more than one since the sald certificate shows along with Quadriprises, speech and hearing disability also. The applicant was called for personality test and has been issued fitness certificate vide Annexure A/14. Respondent No.1 is not interpreting the provisions-of-the-RPD-Act 2016 in its letter and spirits well with its objective. Section 34 of the Act needs to be read with Schedule 1 of the RPD Act, 2016 which provides the List and definition of specified disabilities. The applicant belongs to the category of multiple disabilities and Schedule 1 has been annexed with the OA as Annexure A/23. As submitted earlier the applicant has cleared the Physical Requirements test vide Annexure A/14. Further, as submitted in the preliminary submissions the applicant has been considered as MD by the FCI.

iv) Further, Section 34 of the Act needs to be read with Schedule annexed with the Act. Section 34 provides only the percentage of reservation to the benchmark disabilities the same stand. The applicant has cleared the Physical Requirements test. Further, the applicant meets all the requisitions under CSE, her disability is benchmark disability being more that 40 percent, she is multiple disable and had applied under that category only. Even the certificate issued vides A-18 though mentions two disabilities but correct nomenclature has not been used in the said certificate. The applicant seeks liberty to make detailed submissions in this regard at the time of hearing of the case. The applicant was reexamined by the Appellate Medical Board but from the same organization. She was found to be a case of Cerebral Palsy and Apraxia of speech means thereby she is suffering from Loco motor disability Cerebral Palacy and speech disability also. However the term multiple disabilities has not been used while Issuing medical certificate. Further, Schedule of RPD Act also has not been appreciated by the ADMB. The candidature of the applicant has been wrongly cancelled since she belongs to MD and not LDMP only.

The UPSC has rightly placed the applicant is MD since she has applied under MD only along with Certificate Annexure A/3. The category of the applicant has not been changed by her or by UPSC. In fact, she has been placed in LDMP category by the Medical Board vide Annexure A/15 and subsequently vide Annexure A/18 though her speech disability has been mentioned but she has been placed in LDMP Category and not MD category. It would not be out of place to submit that Cerebral Palsy some time can cause speech, hearing and blindness along with limbs disability of all four limbs and the case of the applicant is that she is suffering from CP along with speech disability as well and the same has been mentioned in Annexure A/3 and A/18 as well. The candidature of the applicant has been wrongly cancelled and the prayer of the applicant is to get her re-examined by some other independent agency or for directions to read Section 34 of RPD Act with Schedule of the Act and also to use correct nomenclature in Annexure A/18 in the circumstances or to interpret Annexure A/18 correctly.

vi) The statement of respondent No.3 qua respondent No.4 stating that they do not find any cause to raise even an iota of doubt upon the medical experts has no merit since error can happen by any expert subjectively and objectively and even the applicant was allowed second medical on this ground only. Further, this kind of error has happened in the past also. The order attached with its reply by respondent No.3 does not match with the facts and circumstances of the case under consideration. In the case mentioned by respondent no.3, according to the expert of the ENT of AIIMS, the applicant was not suffering the speech disability(Para 11/page 14). Further, the medical examination by the different boards in the said case were the same whereas in the case under consideration the situation is different. In para 13 the applicant in that case was suffering from locomotors only whereas in the case under consideration the applicant is both locomotors and cp(LDCP) which is different and more aggressive disability which is generally coupled with other disabilities. The said differences are just few examples and the applicant seeks liberty to make further submissions at the time of argument. Therefore, the applicant prayed that the present OA be allowed with heavy costs.