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Judgment
Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned Counsel for the respondents.
The petitioner had applied for appointment to the post of Assistant- B Group in the first respondent - corporation. He is said to have been called for an interview on 9.7.2008 and he had submitted his original documents and he had successfully completed the interview. The petitioner was a meritorious candidate with 82.71% marks and he had undergone Compulsory Introductory Training regarding the organizational set up and its functioning.
He had joined the training programme on 4.8.2008 and he was required to report to the Principal Regional Training Centre, Gokul Road, Hubli. The petitioner while joining the selected post, had undergone physical fitness test at the District hospital and the District Surgeon had issued a Fitness Certificate, to the effect that the petitioner had a hunch back with 50% disability, but he was otherwise 100% fit for work. In other words, with ''zero'' functional disability.
The petitioner appeared for an interview before respondents 1 and 3 and he was asked to produce the physical fitness certificate and a certificate to the effect that he had undergone the on-job training for a period of 2 weeks. No infirmity or disability was noticed by the respondents. However, he had successfully completed the training as indicated in the attendance register and he was posted to the office of the Divisional Controller, Gadag Division, the second respondent herein. However, he was not permitted to join duty and respondent No. 2, who it is said, did not possess the power or authority to intervene or question the appointment made by respondent No. 1, had acted beyond his power and did not permit the petitioner to report for duty on one pretext or the other.
Finally, a letter dated 30.8.2008 was issued holding that since the petitioner had a hunch back, it was a physical disability and hence he could not be appointed for technical posts, under section 16(3) of the Karnataka State Road Transport Corporation Cadre and Recruitment Regulations 1982 (Hereinafter referred to as the ''1982 Regulations'', for brevity) and he was asked to show cause why his appointment to the post could not be cancelled, within 10 days from the receipt of notice. The petitioner had replied indicating that he did not suffer from any functional disability and was capable of performing his job as Assistant -B Group, without any difficulty. This went in vain and he was issued an endorsement, Annexure-J, whereby his appointment was cancelled.
It is that which is under challenge in the present petition.
The learned counsel for the petitioner would point out that apart from respondent No. 2 having formed an opinion that the petitioner was not eligible to be appointed, as he was suffering from 50% disability on account of his hunch back, Regulation 16(3)(b) and explanation-3, thereto, would not apply to the petitioner for he was otherwise capable of performing his job.
However, in terms of Regulation 5 of the 1982 Regulations, the physical standards prescribed are meant for the posts in the departments of security, vigilance, and traffic including drivers under sub-regulation (1) and for conductors under sub-regulation (3). No such standards are prescribed for all other categories. Regulation 5(3) requires that the physical fitness as certified by the District Surgeon or a Medical Officer of the corporation was sufficient. The present petitioner having obtained such certificate from the District Surgeon, Gadag it could not have been interpreted in a manner to deny the rightful due of the petitioner to the post of Assistant B Group. The petitioner having undergone training and the respondents not having found any infirmity during the pending period, could not thereafter deny employment at the whim and fancy of respondent No. 2, who has acted in an arbitrary fashion in denying employment.
While the learned counsel for the respondent would contend that it is incorrect as to there being no physical standard prescribed for the post of Assistant - B Group. On the other hand, the very Notification inviting applications imposed a condition that physically handicapped persons need not apply for the post. The nature of duties that could be assigned to an Assistant - B Group are labour intensive and therefore, a physically handicapped person would be an impediment in the smooth functioning of the department and it is for this reason that the management had specifically indicated that a person with a physical disability was not eligible for appointment. The petitioner admittedly suffers from 50% disability, as certified by the District Surgeon, Hubli and the claim that he is 100% fit and does not suffer from any functional disability is a self assessment and cannot be accepted in the face of the disability certificate indicating 50% disability. It would be a contradiction in terms when the certificate indicates 50% disability for the petitioner to claim 100% fitness and therefore there is no substance in the contention. Hence, the learned Counsel would seek that the petition be dismissed as there is clearly a bar against the employment of the petitioner even as indicated in the circular inviting applications.
By way of reply, the learned counsel for the petitioner would submit that the respondent - corporation is a huge organisation and there are positions within the Corporation which are capable of being occupied by handicapped persons and if the only ground on which the petitioner who is fully eligible and qualified to be appointed as Assistant B Group is that no physically handicapped persons could be appointed to the said post, he would seek a direction to the respondent to accommodate him in such other suitable post in which handicapped persons could also be appointed.
However, the learned counsel for the respondent would submit that there would be no objection if the petitioner should make an application as and when vacancies arise and when applications are invited. There can be no guarantee that the petitioner would be alternatively accommodated in some other position. The petitioner cannot be given undue advantage on this ground in accommodating him elsewhere in the department of the corporation and it would be unlawful and can be questioned by any party as being arbitrary and not consistent with the law.
Given the facts and circumstance, admittedly the petitioner is a handicapped person and suffers from 50% disability. His claim that he does not suffer from any functional disability and that he is 100% fit to work is not a contention that can be accepted in the face of the physical disability.
Accordingly, while the petitioner would be at liberty to make an application against any post in which he can be accommodated inspite of his physical disability, as and when the respondent should invite such applications. Beyond this, the court cannot place the petitioner on a better pedestal as that would result in the petitioner stealing a march over other deserving candidates.
With that observation the petition stands disposed of.