Secretary vs Manish Vaishnav

This writ petition has been filed against the order dated 5.7.2013 passed by the Central Administrative Tribunal (for short "the CAT") in Original Application No. 302/2012 "Manish Vaishnav vs. Union of India" by which the CAT has allowed the Original Application filed by the respondent-applicant and has directed the petitioner-Border Roads Development Board to give suitable appointment to the respondent-applicant. So far as the consequential benefits are concerned, the CAT directed the petitioner-Border Roads Development Board to consider the claim of the respondent-applicant, after giving him appointment, on the representation to be submitted by him and after the decision on the respondent-applicant''s representation, if any grievance remains, the respondent-applicant may approach the Tribunal, if he so desires.

The respondent-applicant is a differently abled person. According to the certificate of the Medical Board issued by the Disability Medical Board, Govt. Hospital, Nagaur, the respondent suffers from locomotor disability of weakness in one leg. As per the medical certificate dated 6.11.2009, renewed on 6.2.2010, he suffers from disability category "OL" i.e. one leg affected with weakness, indicating the degree of disability assessed at 60%. He appeared in the Engineering Services Examination, 2009 held by the U.P.S.C. in the reserved quota of physically handicapped persons and passed the examination successfully, securing 204th rank at S. No. 34 in the list. In the selection, certain posts were reserved for physically handicapped persons.

After success in the written examination, he was called for medical examination. The Medical Board, especially constituted for the Engineering Services Examination, 2009 by the Ministry of Railways, New Delhi, for finding out the suitability of the physically challenged candidates for various services, certified the respondent-applicant to be fit only for specified vacancy reserved for physically impaired and found his appointment permissible under relaxed criterion for physically handicapped functions B/L. The relevant part of the Medical Board report and the findings are quoted as below:

"13. Is there anything in the health of the candidate likely to render him unfit for the efficient discharge of his duties in the service for which he is a candidate?

Permissible under relaxed criterion for physically handicapped

For which services of the following six categories has the candidate been examined and found in all respect qualified for the efficient and continuous discharge of his duties and for which of them is he considered unfit:

(i) Railway Engineering Services Gr. A (Civil, Electrical, Mechanical and Signal, CES Gr. A, CE & MES Gr. A, CWES Gr. A, CES (Roads) Gr. A and MES Gr. A.

(ii) AEE P & T Bhilding Gr. A, CPES Gr. A, INAS Gr. A, INSO Gr. A, BRES Gr. A and Post of Engineer Gr. A. (WP & C/Monitoring Organisation).

(iii) Assistant Executive Engineer (Group A) in the corps of EME, Ministry of Defence and Survey of India.

(iv) IOFS Gr. A

(v) Drilling Engineer (Jr.) Gr. A in G.S.I.

(vi) IRSS Gr. A

Is the candidate fit for field service? No

NOTE: The Board should record their findings under one of the following four categories:

(i) Fit .............

(ii) Unfit on account of ............

(iii) Temporarily unfit on account of .....

(iv) Fit only for specified vacancy reserved for physically impaired: Permissible under relaxed criterion for physically handicapped functions B/L."

The respondent-applicant was allotted the department of Border Roads Development Board (for short ''BRDB''). The BRDB, however, declined to give appointment to the respondent-applicant vide letter dated 18.8.2011. The Railway Board did not agree with the refusal of BRDB, to give him appointment and wrote to BRDB to offer him appointment. The respondent-applicant thereafter made several representations without any success, on which, he filed Original Application in the CAT for following reliefs:

"1. The respondents may kindly be directed with the suitable direction to providing the appointment to the applicant on the post of engineering service in the reserved quota PH (LDCP) as the applicant has stood the 204th rank in the merit w.e.f. the date on which the similarly situated persons were appointed with the consequential relief.

That the respondents may kindly be directed to count the seniority and other benefits of the appointment to the applicant''s service record from the date of the appointment of other persons, as if he was never denied the same with the consequential relief.

That without prejudice to hereinabove if during the pendency of Original Application if vacancies are filled up then in such event the respondents may be directed to create one post for the applicant.

That the respondents may kindly be directed to pay the interest @ 18 p.a. on the amount of salary after counting from the date of appointments of other persons which becomes due from the date of appointment of the similarly situated persons of ESE 2009.

The exemplary cost may be imposed on the respondents for dereliction of duty in not providing the appointment to the applicant despite the duly selection has been made.

The impugned action of the respondents in not providing the appointment to the applicant on the post of engineering service in the reserved quota PH (LDCP) may kindly be deprecated and set aside.

The cost of the may kindly be made in favour of the applicant.

Any other direction or order as this Hon''ble Tribunal may deem fit in the facts & circumstances of the case."

The BRDB (respondent No. 6 in O.A.) filed a reply contending that the conditions of service in Border Roads Engineering Services (for short ''BRES'') require the selected candidate to serve in any part of India or outside including the field area in war and in peace and they would be medically examined in accordance with the medical standards laid down for the field services. They relied upon the service rules to contend that the respondent-applicant was not fit for field service and, thus, he was not suitable for BRES. It was contended that the respondent-applicant was found handicapped under the functional classification "BL" i.e. both legs are affected, while the vacancies in BRES were reported for "OA" i.e. one arm affected. The allocation of the respondent-applicant to BRES was, thus, not in accordance with the medical fitness requirement as per Engineering Services Rules, 2009 in respect of BRES and also with respect to BRDB Sectt, which has requisitioned the vacancies reserved in the physically challenged quota indicating the nature of disability i.e. one arm affected, which is suited for BRES job requirement. The Ministry of Railways were requested to reallocate the respondent-applicant to some other department.

In the reply filed by the Union of India and the Joint Director, East (G.R.), Ministry of Railways (Rail Board), it was stated that the respondent-applicant was allotted BRES against one of the two physically handicapped vacancies reserved for Locomotor Disability and Cerebral Palsy (LDCP). Out of total 83 vacancies in BRES, two vacancies were reserved for physically handicapped (LDCP). The consolidated vacancy statement was forwarded to the Board by the UPSC alongwith the detailed results and dossiers of the candidates of the Engineering Services Examination. The respondent was recommended as a physically handicapped candidate for allotment against one of five vacancies reserved for LDCP in Civil Engineering Discipline in the manner, that one vacancy was recommended for Indian Defence Service of Engineers; one for Central Water Engineering Services; two for Border Road Engineering Services; and one for AEE (QS & C) in MES. The vacancies in IDSE, CWES & AEE (QS & C) in MES were filled by three physically handicapped candidates with ranks 201, 202 and 203. The respondent-applicant had secured 204th rank and, thus, had been recommended as a LDCP candidate in BRES. His dossier was returned by the Border Roads Development Board drawing attention to page 68 of the Engineering Services Rules, 2009, which mentioned that the candidates for BRES will be medically examined in accordance with the medical standards laid down for the field service.

During the pendency of the Original Application in CAT, the respondent-applicant approached the Court of Chief Commissioner for Persons with Disabilities, Ministry of Social Justice & Empowerment, Department of Disability Affairs. The Court after hearing the parties passed an order on 15.1.2013 in which after considering the reports of the Medical Board, it was observed as follows:

"12. After hearing of the parties and meticulous examination of records, this Court observes as follows:

(i) It appears that there is some inconsistency between the Disability Certificates dated 6.2.2012 submitted by the complainant and Medical Report of the Railways dated 15.6.2010 in as much as the Disability Certificate certifies him as a person with disability belonging to OL sub category while the Medical Report of the Railway mentions him as belonging to BL category. The said Medical Certificates, which had been issued by the Medical Board of the Government Hospital, Nagaur (Rajasthan) are dated 6.11.2009 and 6.2.2010 respectively, indicate the degree of disability as 60%. It is, therefore, evident that the Medical Board of the Government Hospital, Nagaur (Rajasthan) was not convinced that the right leg of the complainant was so disabling as to treat him as a person belonging to the BL sub category of the disability.

(ii) Even the Medical Board of the Railways in its Medical Report dated 15.6.2010, while declaring him as a person with disability belonging to BL sub category of disability observed that he is fit only for specified vacancies reserved for physically impaired "permissible under relaxed criterion for physically handicapped functions B/L" though he is not fit for field service. The working sheet appended to the said Medical Report of the Railway Board has assessed the complainant''s disability in the left and right leg on 14 indicators. While in the left leg which has a caliper, the Medical Board has assigned 2 points each in respect of 3 indicators. In none of the 14 indicators, his right leg has been assigned zero point. The points assigned to the indicators range from 2 to 5 indicating thereby that the right leg of the complainant has enough strength to enable him to function as a Civil Engineer. It would be in the fitness of things for this Court to mention here that Para 23 of the DoPT''s O.M. No. 36035/3/2004-Estt(Res) dated 29th December, 2005 provides for medical examination in respect of the candidates with disability which is reproduced as under:

"As per Rule 10 of the Fundamental Rules, every new entrant to Government Service on initial appointment is required to produce a medical certificate of fitness issued by a competent authority. In case of medical examination of a person with disability for appointment to a post identified as suitable to be held by a person suffering from a particular kind of disability, the concerned Medical Officer or Board shall be informed beforehand that the post is identified suitable to be held by persons with disability of the relevant category and the candidate shall then be examined medically keeping this act in view."

(iii) While the instant complaint was filed in the office of the Chief Commissioner on 29.5.2012, the complainant, perhaps under anxiety and desperation also filed an O.A. in the CAT, Jodhpur Bench, Rajasthan in October, 2012 without waiting for a decision of this Court.

(iv) The relevant advertisement for Engineering Service Examination - 2009 published in Employment News dated 10-16 January, 2009 by the UPSC should have, among other things, also specified the sub category of disability for which a given post if reserved for persons with disabilities. This is a serious omission, more particularly, in the light of Para 25 of DoPT''s O.M. No. 36035/3/2004-Estt (Res) dated 29th December, 2005."

The Chief Commissioner for Persons with Disabilities could have given directions for appointment, however, it noticed that the complainant had approached the CAT, Jodhpur Bench and, thus, after having recorded findings in favour of the petitioner, left the matter to be decided by the CAT. In the findings recorded by the Chief Commissioner for Persons with Disabilities, it was expressly held that the petitioner-Border Roads Development Board should appoint the respondent to the post of Assistant Executive Engineer in Border Roads Engineering Service since the post has been identified for "BL" category of locomotor disability and they have not obtained exemption from the appropriate authority. In the event of any difficulty in posting the complainant at a station in a difficult terrain, the petitioner-Border Roads Development Board may post him in a suitable zone or area.

The Tribunal, after noticing the order passed by the Court of Chief Commissioner for Persons with Disabilities, was of the view that there was inconsistency in the Medical Certificates given by the different authorities and observed that the UPSC has not specified the sub category of disability for which a given post is reserved for persons with disabilities and, thus, the respondent-applicant is entitled to have an appointment against a vacancy of physically handicapped persons (both legs). The petitioner-Border Roads Development Board did not comply with the order passed by the Court of Chief Commissioner for Persons with Disabilities and thus, the CAT gave directions for his appointment.

It is submitted by learned counsel for the petitioner-Border Roads Development Board that vacancies were requisitioned in the BRES in the category of one arm affected, which could be suited for the BRES requirement. The persons appointed in the BRES can be posted anywhere in India or outside including the field area in war and in peace and that they have to be medically examined in accordance with the medical standards laid down for the field service. It is submitted that with the disability in both the legs, the respondent-applicant would not be in a position to render effective services in the BRES. He will be wholly unsuitable for the job requirement.

It is submitted that in the medical certificate issued by the Special Medical Board for ESE 2009 has declared the respondent-applicant only fit for specified vacancies for physically impaired, which is permissible under relaxed criterion for physically handicapped functions B/L. Any person with disability in both the legs, in the opinion of the Board, is not suitable for employment in BRES.

We find that one of the posts in BRES was reserved for the physically handicapped by the Board. The choice of indicating the nature of disability, which could be permissible was with the BRES subject to exemption for other disabilities. The BRES has not obtained any exemption under the proviso to Section 33 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 (for short ''PWD Act 1995''). The mandate of the Act is to keep reservation of posts for physically challenged persons 1% each for the persons suffering from (i) blindness or low vision; (ii) hearing impairment and (iii) locomotor disability or cerebral palsy to the extent that reservation is not less than 3% of Cadre strength. The Border Roads Development Board has also not challenged the medical certificate issued by the Medical Board, especially constituted for the Engineering Services Examination 2009, with respect to his appointment in the department in which the Medical Board certified that the respondent''s appointment is permissible under relaxed criterion for physically handicapped functions B/L.

The Border Roads Development Board - petitioner has not placed before us the relaxed criterion for physically handicapped functions B/L to establish that the physical handicap suffered by the respondent-applicant would make him unsuitable for the post. In the absence of any material to contradict the opinion of the Medical Board and the challenge to the relaxed criterion, it is not permissible for the petitioner to contend that the disability suffered by the respondent would make him unsuitable for job requirement in BRES.

In the Union of India (UOI) and Another Vs. National Federation of the Blind and Others, , the Supreme Court has reconsidered and revisited the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and held that the scope of identification of posts for the persons with disabilities comes into picture only at the time of appointment in post identified for disabled persons and is not necessarily relevant at the time of computing 3% reservation under Section 33. The ceiling of 50% reservation applies only to vertical reservation under Article 16(4) of the Constitution of India, whereas reservation in favour of persons with disabilities is horizontal. Where the Statute provides for reservation, the extent of reservation cannot be denied. It was held that the computation of 3% reservation is based on total number of vacancies in cadre strength. Though in this case we do not derive much benefit from the judgment in the National Federation of the Blind (supra), the mandate of the Act to provide reservation to physically challenged persons, according to PWD Act 1995, has been reaffirmed.

The Chief Commissioner for Persons with Disabilities is an expert in the field. He has examined the entire aspect of the matter and has found that respondent-applicant with 204th rank in ESE 2009 for vacancies requisitioned by the BRES, and with reservation of physically handicapped persons, was not ineligible to be given appointment. He found that the working sheet appended to the said Medical Report of the Railway Board has assessed the complainant''s disability in the left and right leg on 14 indicators. While in the left leg, the Medical Board has assigned 2 points each in respect of 3 indicators, in none of the 14 indicators, his right leg has been assigned zero point. The points assigned to the indicators range from 2 to 5 indicating thereby that the right leg of the complainant has enough strength to enable him to function as a Civil Engineer. He has also referred to DoPT''s O.M. Dated 29th December, 2005 which provides that every new entrant in Govt. service on initial appointment is required to produce a medical certificate of fitness issued by the competent authority. In case of medical examination of a person with disability for appointment to a post identified as suitable to be held by a person suffering from a particular kind of disability, the concerned Medical Officer or Board shall be informed beforehand that the post is identified suitable to be held by persons with disability of the relevant category and the candidate shall then be examined medically keeping in view his act.

In the present case, we find that the Medical Board was convened especially for the purpose of finding out the suitability of the physically handicapped candidates for appointment in various services including BRES and that the Medical Board constituted for the said purpose had examined the respondent and assessed his suitability for appointment in BRES, taking into consideration the disability suffered by him. The Medical Board did not find him unsuitable for the requirement of the job.

The writ petition is, accordingly, dismissed reiterating the observations made by the CAT that the respondent-applicant will be given appointment and in case, a grievance is raised even before the petitioner-BRDB, it will be obligatory for the petitioner BRDB to provide all assistance to the respondent-applicant in getting appointment and also for the posting. It goes without saying that a person with disability is entitled to a posting, which, taking into consideration his disability, is suitable and convenient to him. Even if he is posted at any place according to the requirement of the job, he must be provided with all necessary facilities and conveniences, which are required to be provided to the persons with disabilities in accordance with the provisions of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995.