Shivank Gupta vs Union Of India & Ors.

Learned counsel for the applicant submits that the Staff Selection Commission issued the notification for CHSL-2018 on 05.03.2019 for recruitment to the posts of Lower Divisional Clerk/Junior Secretariat Assistant, Postal Assistant/Sorting Assistant and Data Entry Operator in various Ministries/Departments/Offices of the Government of India.

Learned counsel for the applicant, as per the notification, the applicant, who is a person with disability affecting both legs, was eligible to participate in the examination under the OH category. The Tier-I Computer Based Examination was conducted from 01.07.2019 to 14.07.2019, and the result thereof was declared on 12.09.2019. The applicant secured 107.3354 marks in EWS Category-04 (OH) and qualified for the next stage.

The applicant thereafter appeared in the Tier-II Descriptive Paper on 29.09.2019 and secured 66 marks, pursuant to which he qualified for the subsequent stage. The result of Tier-II was declared on 25.02.2020, followed by an additional result on 27.08.2020, whereby the applicant was shortlisted for the Typing Test. The applicant successfully cleared the Typing Test and was thereafter called for Document Verification on 09.07.2021, which he duly attended.

Learned counsel submits that, throughout the selection process, the applicant was being considered for the post of Postal Assistant/Sorting Assistant. In particular, paragraph 4.1.2 of the examination notification specifically included, inter alia, One Leg Affected (OL), One Arm Affected (OA), One Arm One Leg Affected (OAL), Both Legs Affected (BL), Muscular Weakness and Limited Physical Endurance (MW), Blind (B), Low Vision (LV) and Hearing Handicapped (HH) as categories suitable for the post of Postal Assistant/Sorting Assistant. Consequently, the applicant was provisionally considered for Post Code P-41.

Learned counsel for the applicant submits that the applicant was never informed at the stage of Document Verification on 09.07.2021 that, on account of his disability affecting both legs, he would not be considered for the post in question. According to learned counsel, the applicant had already undergone the entire selection process on the basis of the conditions notified on 05.03.2019.

Learned counsel submits that the final result of CHSL-2018 was published on 30.09.2021. Despite securing 173.2254 marks, which was higher than the marks of the last selected candidate, i.e. 172.9392, the applicant was not considered for appointment to the post of Postal Assistant/Sorting Assistant under PwD Category-04 (OH).

Learned counsel for the applicant submits that, after declaration of the result, when the applicant approached the Regional Office of the Staff Selection Commission at Raipur, he was informed that, pursuant to a subsequent notification/circular, candidates having disability affecting both legs were not considered eligible/suitable for the post of Postal Assistant/Sorting Assistant. The applicant was not initially furnished a copy of the said communication. The same was subsequently obtained through RTI, on or about 18.10.2021.

Learned counsel submits that the respondents could not have altered the applicable criteria after the selection process had substantially concluded. According to him, the applicant had participated in the examination, qualified at every stage, appeared in Document Verification and had secured marks higher than the last selected candidate. The subsequent change in the suitability criteria, according to learned counsel, amounts to changing the rules of the game after the game had already commenced.

Learned counsel has also referred to the relevant communications and Office Memoranda placed on record, including OM dated 01.04.2019 and 04.01.2021, to submit that the post of Postal Assistant/Sorting Assistant was identified as suitable for the relevant category of disability. Learned counsel further submits that the subsequent stand taken by the respondents is contrary to the position which existed when the applicant participated in the examination and completed the selection process. He also relies upon the proceedings before the Chief Commissioner for Persons with Disabilities and the material disclosed pursuant to the RTI application.

Learned counsel relies upon paragraph 4.5 of the Notice of Examination, which specifically provides that selection of candidates with disabilities would be subject to identification of posts suitable for such categories as well as reporting of vacancies by the indenting departments. Reliance is also placed upon paragraphs 4.6 and 4.12 of the Notice of Examination.

It is submitted that, in terms of paragraph 4.1.2 of the notification, the applicant was initially considered provisionally for Post Code P-41, i.e. Postal Assistant/Sorting Assistant. However, subsequently, the Department of Empowerment of Persons with Disabilities (Divyangjan) issued Notification No. 38-16/2020-DD-III dated 04.01.2021, pursuant to which the suitability of various posts for different categories of benchmark disabilities was required to be considered.

Learned counsel submits that, taking cognizance of the aforesaid notification, the Commission issued letter No. 3-2/2019-P&P-I (Vol. I) dated 05.07.2021, communicating the suitability of various posts under CHSL-2018 for different categories of disabilities. As per the said communication, Both Legs (BL) under the OH category was not considered suitable for the post of Postal Assistant/Sorting Assistant.

Learned counsel for the respondents submits that the applicant’s post preference was subsequently revised in the online Data Verification Sheet and he was not considered suitable for Post Code P-41. Learned counsel submits that although the applicant’s marks were higher than those of the last selected OH candidate, merit alone could not confer a right to appointment to a post for which the applicant was not found suitable in terms of the applicable disability criteria.

Learned counsel further relies upon the Speaking Order dated 09.12.2021 issued by the Chief Commissioner for Persons with Disabilities (CCPD) in the cases of similarly situated candidates, namely, Ms. Bikki Rani, Shri Subodh Patel, Shri Pramod Kumar, Shri Surendra Kumar Singh and Shri Vishnu Kumar Jangid, who were also candidates of CHSL-2018 and had been declared non-eligible for the post of Postal Assistant/Sorting Assistant after Document Verification.

Learned counsel further submits, in the said proceedings, the CCPD upheld the stand of the Commission and noted the position flowing from the Notification dated 04.01.2021, observing that the categories BL, OA and OAL were not identified as suitable for the post of Postal Assistant. The respondents have also placed on record the communication dated 08.03.2022, forwarding the aforesaid Speaking Order.

Learned counsel therefore submits that the applicant’s disability certificate, produced at the time of Document Verification, disclosed disability of OH-Both Legs, which was not suitable for the post of Postal Assistant/Sorting Assistant in terms of the Commission’s letter dated 05.07.2021. Consequently, the applicant could not be considered for appointment to the said post.

On the aforesaid basis, learned counsel submits that there is no illegality in the non-consideration of the applicant and that the Original Application is liable to be dismissed.

It is submitted that the respondents themselves admit that the applicant was initially considered provisionally for Post Code P-41. Thus, the applicant was not an ineligible candidate at the inception of the recruitment process. He was permitted to participate, qualified in the successive stages, appeared for Document Verification, and only thereafter was his candidature effectively excluded on the basis of the subsequent determination made by the Commission vide letter dated 05.07.2021.

Learned counsel submits that the respondents cannot rely upon the subsequent communication to retrospectively defeat the candidature of an applicant who had already participated in the selection process on the basis of the notified conditions. The applicant relies upon the office memoranda attached with the rejoinder, as well as the Office Memoranda dated 01.04.2019 and 04.01.2021, to contend that the position regarding suitability of the post was not as subsequently projected by the respondents.

Learned counsel also submits that the respondents have not placed on record any contemporaneous order communicating to the applicant, before or at the stage of Document Verification, that he was ineligible for the post of Postal Assistant/Sorting Assistant on account of his disability. The applicant came to know of the reason for his non-selection only after declaration of the final result and upon obtaining the relevant material through RTI.

According to learned counsel, the subsequent reliance placed by the respondents on the Notification dated 04.01.2021 and the letter dated 05.07.2021 cannot be used to unsettle the rights of the applicant arising from the recruitment notification and the selection process already undergone by him. The applicant, therefore, submits that once the post had been identified as suitable in the recruitment notification, and he had participated in the selection process pursuant thereto, the respondents could not subsequently exclude him from consideration on the basis of a changed or subsequently applied suitability criterion.

It is not in dispute that the CHSL-2018 notification was issued on 05.03.2019 and that the applicant participated in the selection process pursuant thereto. It is also not in dispute that, under paragraph 4.1.2 of the said notification, Both Legs (BL) was included amongst the categories shown as suitable for the post of Postal Assistant/Sorting Assistant. The applicant was accordingly considered provisionally for Post Code P-41.

The applicant thereafter participated in the successive stages of the selection process, including the Tier-I examination conducted from 01.07.2019 to 14.07.2019, the declaration of the Tier-I result on 12.09.2019, the Tier-II examination on 29.09.2019, the subsequent Typing Test and, finally, Document Verification on 09.07.2021.

The respondents seek to justify the applicant’s non-consideration by relying upon the Notification dated 04.01.2021 and the consequential Commission’s letter dated 05.07.2021, pursuant to which Both Legs (BL) was not treated as suitable for the post in question.

However, the material on record shows that the applicant had already entered the recruitment process on the basis of the notification dated 05.03.2019, in which the relevant category of disability was shown as suitable for the post.

In these circumstances, the subsequent application of the altered/revised suitability position to the applicant, after he had undergone the selection process on the basis of the notified conditions, cannot be sustained.

Once the post had been identified as suitable in terms of the specification contained in the recruitment notification, it does not lie in the mouth of the respondents to subsequently deny consideration of the applicant for the very same post on the basis of a criterion which was applied subsequently, particularly when the applicant had already participated in the selection process and had otherwise established his merit.

We are, therefore, of the considered view that the action of the respondents in not considering the applicant for the post of Postal Assistant/Sorting Assistant on the aforesaid ground is liable to be set aside.

The applicant shall be entitled to consequential benefits on notional basis, in accordance with the applicable rules.

The aforesaid exercise shall be completed by the respondents within a period of eight weeks from the date of receipt of a copy of this order.