judgements by high courts in indiasubject: section 33 pwd act-employment

8/14/2019 Judgements by High Courts in IndiaSubject: Section 33 PWD Act-Employment

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WP(C) No. 4576/2005IN THE HIGH COURT OF DELHI AT NEW DELHI

WP (C) No. 4576 of 2005

Pronounced on : December 20, 2007

20.12.2007

Krishan Kumar .....Petitioner

through : Mr. V.S. Tomar, Advocate

VERSUS

Secretary, Govt. of NCT of Delhi and Ors. .....Respondents

through : Ms. Avnish Ahlawat with

Ms. Latika Chaudury and

Mr. Nidhi Jain, Advocates

CORAM :-

THE HON'BLE MR.JUSTICE A.K.SIKRI

THE HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether Reporters of Local papers may be allowed to see the Judgment?

2. To be referred to the Reporter or not?3. Whether the judgment should be reported in the Digest?

A.K. SIKRI, J.

1.The petitioner claims that he is a physically handicapped person and is

entitled to the benefits of benevolent legislation i.e. Persons with Disability


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(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

(hereinafter referred to as the 'Disability Act'). His qualifications are MA

(Physical Education) from Choudhary Charan Singh, Haryana Agriculture

University Sports College, Hissar. Section 33 of the Disability Act provides

for 3% reservation of posts in public employment for candidates suffering

from disability mentioned in Section 2(i) of the said Act. It is for this reasonthat when Delhi Subordinate Services Selection Board (for short 'DSSSB')

advertised posts for inviting applications for the post of various teachers,

including four posts of Physical Education Teacher (PET) for physically

handicapped persons in March 1999, the petitioner also applied for the said

post in the aforesaid reserved category. He emerged successful in the said

selection and was issued appointment letter dated 23.12.1999. The petitioner

joined as PET at Government Boys Senior Secondary School, Shakarpur,

Delhi on 13.1.2000. On 23.5.2000, he was transferred to GBM School,

Sultanpuri, Delhi.

2. While working in this school, the Deputy Director of Education (Admn.

Branch), Govt. of NCT of Delhi (respondent No.3 herein), issued him a show-

cause notice dated 21.12.2000 stating therein that the petitioner was not

eligible to be appointed to the post of PET as a handicapped person and,

therefore, as to why his services should not be terminated as it was detected

that he was not possessing the educational qualifications required for the

post. He submitted his reply dated 23.12.2000. However, no action on the said

show-cause notice was taken. Instead, after a gap of 2? years, the petitioner

was served with another memo dated 23.6.2003 calling upon him to submit

his representation along with all the relevant documents in support of hisclaim that he was an eligible candidate and was rightly selected to the post.

The petitioner responded vide reply dated 7.7.2003. After a lapse of four

months, memo dated 10.11.2003 was issued to him giving him another

opportunity to explain his position. The petitioner submitted yet another

reply on 22.11.2003. After considering these explanations, the respondent vide

orders dated 26.4.2004 terminated his services on the ground that the

petitioner did not possess the essential qualification prescribed for the post in

question and the qualification possessed by him, i.e. Bachelors of Sports

Humanities, cannot be equated with the qualifications prescribed for the post

as per the recruitment rules. The respondents were also of the opinion that

the petitioner was disabled to the extent of 65%, thus, rendering him

incapacitated to impart training to the students. On this basis the respondents

concluded that the petitioner was wrongly appointed and his appointment

was against the notified recruitment rules as also DoPT instructions dated

28.2.1986 and 25.11.1986. These were the reasons which became cause of

termination of the services of the petitioner.


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3. Feeling aggrieved, the petitioner filed OA under Section 19 of the

Administrative Tribunal Act before the Central Administrative Tribunal,

Principal Bench, New Delhi. However, his attempt in the said OA has turned

out to be futile as the Tribunal had dismissed the said OA. Not satisfied the

petitioner has assailed that judgment in the present petition preferred under

Article 226 of the Constitution of India.

4.One can discern from the narration of facts mentioned above that two

issues arise for consideration, namely :-

(1) whether the petitioner does not possess the essential qualifications

prescribed for the post in question; and

(2) whether he is incapacitated to impart training to the students because of

his disability? If so, what would be the consequence?

While dealing with these questions, we may take note of the contextual fact

and materials.

5. Issue No. 1 ? Whether the petitioner does not possessthe essential qualifications prescribed for the post inquestion?As per the recruitment rules notified for the post of PET acandidate is to possess the following qualifications :-

"(a). The incumbent should be a graduate from a

recognized university with Diploma in Physical Trainingfrom a recognized institution/university.Or(b). B.P.Ed. from recognized university and highersecondary.Or(c). B.Sc. (Physical Edn. Health and Sports) or itsequivalent from recognized university/institution."

6. The petitioner is a Bachelor of Sports Humanities and healso passed MA (Physical Education) from CCS, HaryanaAgriculture University, Hissar in the year 1996. It is clearfrom the above that there are three alternatequalifications provided in the recruitment rules to make acandidate eligible to the post of PET. According to the


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respondents, qualifications possessed by the petitioner didnot conform to the recruitment rules as Bachelor of SportsHumanities cannot be regarded equivalent to any of theaforesaid three qualifications. It is mentioned in thetermination order dated 26.4.2004 that the curriculum atgraduate level is altogether different than the coursecontents in diploma and physical education course andthis is the reason because of which the respondentsmaintained that the petitioner does not fulfill the requisitequalifications.

7.The learned Tribunal referred to and relied upon thejudgment of the Supreme Court in the case of Director,

AIIMS and Ors. v. Dr. Nikhil Tandon and Ors., (1996) 7SCC 741 wherein the Court has held that mere equivalenceis not enough and the qualification must also berecognized as equivalent. ?Recognized evidently meansrecognized by the Institute or at least by the MedicalCouncil of India?. The Tribunal was of the opinion thatqualification possessed by the petitioner could not betreated as equivalent to that of the one prescribed for thepost of PET in the absence of any order/notification issuedby the Government to that effect. This approach, according

to us, is wholly fallacious. The recruitment rule, inter alia,requires that the incumbent should be a graduate from arecognized university with major in physical andEducation, Health and Sports from a recognizedinstitution. What is of relevance is that the candidateshould have acquired a graduation degree, and whether itis a B.Sc. Degree or a B.A. Degree is not of essence.Admittedly, the petitioner had a Bachelors degree inSports Humanities and a M.A. /post graduation degree inPhysical Education. In our view he is sufficiently qualifiedunder Clause (c ) as aforesaid. It is not the case that theHaryana Agriculture University, Hissar is not arecognized institution/university. In fact, it is a universityrun under the control of the State of Haryana and is dulyrecognized. The question of 'equivalence', therefore, didnot arise in this case at all.


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8. Issue No. 2 - Whether he is incapacitated to imparttraining to the students because of his disability? If so,what would be the consequence?It is not in dispute that the petitioner suffers fromdisability which is covered by the Disability Act. He hadsubmitted a medical certificate from the Medical Board,Civil Surgeon, Bhiwani (Haryana) mentioning theweakness of his right upper and right lower limb onaccount of depressed fracture of skull resulting in 65%handicap. This disability of the petitioner is even not indispute. However, the case made out by the respondentsfor terminating the services of the petitioner was that thiskind of disability makes him incapacitated to imparttraining to students in drill, physical education, various

games i.e. hockey, cricket, volleyball and handball etc.According to the respondents, a PET who is himselfdisabled to the tune of 65% cannot deliver goods to theschool children who are before him for their physicaldevelopment when the appointment is considered qua theeducation and welfare of children. The petitioner cannotbe thought of providing all round development of variousfaculties of the children.

9.Challenging the aforesaid ground to terminate his

services, the petitioner had relied upon a Division Benchjudgment of this Court in Govt. of NCT of Delhi v. BharatLal Meena and Anr., 100 (2002) DLT 157. The Tribunal,however, distinguished the said judgment on the groundthat in the case of Bharat Lal Meena and Surinder Singh,who were also appointed as physical education teachers,they were already possessing the requisite qualificationsattached to the post of PET but their services wereterminated because the Government felt that as physicallyhandicapped persons they cannot perform their dutiesproperly. The Tribunal further opined that in the case ofthe petitioner he had acquired the disability after gettingthe degree of Bachelors of Sports Humanities. This ishardly any ground which provides justification fordistinguishing the judgment. It is not in dispute that thepetitioner was appointed along with Bharat Lal Meena andSurinder Singh as PET. It is also not in dispute that he was


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physically handicapped and was entitled to apply for thepost of PET under the quota meant for persons sufferingfrom disability. Once it is held that the petitioner washaving requisite qualifications for the post, it would hardlybe a reason to distinguish his case from the case of BharatLal Meena and Surinder Singh on the spacious plea thatthose two persons acquired the qualifications aftersuffering disability whereas the petitioner suffered thedisability after getting the degree. Two things aremutually exclusive. As far as disability is concerned, it hasto be in existence at the time of applying for the post. Ithas nothing to do with attaining the qualifications.Whether these qualifications are obtained before or aftersuffering the disability is totally immaterial. The

observations which were made by this Court in the case ofBharat Lal Meena (supra) to the effect that in spite ofdisability the saidpersons acquired the qualifications were in the contextthat the disability could not deter them from pursuingtheir education and acquisition of necessary qualifications.Otherwise, the principle which was laid down in the saidjudgment was that once the post of PET is reserved fordisabled person and a suitable candidate, conforming tothe qualifications and disability norms under the Act, is

duly selected for the post, his services cannot beterminated on the ground that he is not fit to impartphysical education to the students.

10.In the said judgment, the Division Bench has traced outthe history of legislation, i.e. the Disability Act, and thepurpose for which the Act was enacted, namely, to givesuccor to the persons suffering from disability and treattheir rights as human rights. After tracing out the history,factual matrix of the said case is discussed. Since BharatLal Meena and Surinder Singh were appointed along withthe petitioner herein against the same advertisement andsame selection process against the four posts reserved forhandicapped persons and Shri Meena was not allowed tojoin the post and services of Surinder Singh wereterminated after issuing show-cause notice, as in the caseof the present petition, the factual matrix narrated in the


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said judgment regarding the advertisement, variousGovernment orders, etc. on this subject would have samebearing. We, therefore, deem it proper to extensivelyquote from the said judgment the following portion whichapplies to the present case on all folds :-

"20. In the aforementioned backdrop of events, we may consider the factual

matrix of the matter.

The advertisement dated 6.3.1999 published in Dainik Jagran, Delhi is in the

following terms :

Post Code SR./Group

Post/Name of Department

No. of Posts

Pay Scale

Age Limit (Year)

Educational Qualification and Experience

74/1999 Group-'B'

Physical Education teacher, Directorate of Education, Govt. of NCT Delhi

143 (Unreserved 66, OS-17 (sports)

OS-4 (sports) ST-7

OS-2 (sports)

OBC ? 25 Physically handicapped (visually handicapped-4) are included

5500-900030 male

40 female

Diploma from any recognized Institute/ University in P.E.T. along with

graduation from any recognized University, CPL from any recognized

Institute

recognized by the Directorate CBSE..

Translated True Copy from Hindi to English

21. The Joint Secretary, Ministry of Personnel, Public Grievances and

Pensions (Department of Personnel and Training) issued an order dated20.4.1998 being S.O. 332 (E) whereby and whereunder classification of posts

was linked with their salary payable, which reads thus :

? ORDER

New Delhi, the 20th April, 1998.


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S.O. 332 (E). In exercise of the powers conferred by the proviso to Article 309

and Clause (5) of Article 148 of the Constitution read with Rule 6 of the

Central Civil Services (Classification, Control and Appeal) Rules, 1965 and in

supersession of paragraph 2 of the notification of the Government of India in

the Deptt. Of Personnel and Administrative Reforms No. S.O. 5041 dated

11.11.1975 as amended by the notification of Ministry of Personnel PublicGrievances and Pension (Deptt. Of Personnel and Training) number SO 1752

dated 30th June, 1987, and after consultation with the Comptroller and

Auditor General of India in relation to persons serving in the Indian Audit

and Accounts Deptt. the President hereby directs that with effect from the

date of publication of

this order in the Official Gazette, all civil posts under the Union shall be

classified as follows :-

Sl. No.

Description of PostsClassification of Posts

1.

A Central Civil post carrying a pay or a scale of pay with a maximum of not

less

than Rs.13,500/-

Group A

2.

A Central Civil post carrying a pay or a scale of pay with a maximum of not

less

than Rs.9,000/- but less than Rs.13,500/-Group B

3.

A Central Civil post carrying a pay or a scale of pay with a maximum of over

Rs.4,000/- but less than Rs.9,000/-

Group C

4.

A Central Civil post carrying a pay or a scale of pay the maximum of which is

Rs.4,000/- or less

Group D

Explanation : For the purpose of this order -

(i) 'Pay' has the same meaning as assigned to it in FR 9(21) (9) (a) (1);

(ii) 'Pay or scale of pay' in relation to a post, means the pay or the scale of any

of the post prescribed under the Central Civil Services (Revised Pay) Rules,


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1997.

22. The Central Government in exercise of its power conferred upon it under

the provisions of the said Act identified jobs, which were capable of being

held by physically handicapped persons vide entry Nos. 56 to 58 and 64 to 67,

as noticed hereinabove. The respondents come within the classification of OAand MW, which are :

?Code Functions

.... .... .... ....

OW(v) one arm affected (R or L) -

(a) impared reach;

(b) weakness of grip;

(c) ataxia;

.... .... .... ....

MW(viii) muscular weakness and limited physical endurance?

23. The aforementioned OM dated 28.2.1986 contains a list of jobs identified

for being held by physically handicapped persons. Its physical requirements

and the categorization of disabled persons suitable therefor and also been

indicated therein. A bare perusal thereof leads us to the conclusion that the

post of Higher Secondary and Secondary School Teacher (in short, 'HSSST')is one of the posts identified for the said purpose. Orthopedically

handicapped persons constitute one of the categories, which are found

suitable

for job of the said post of HSSST, as would appear from entry at S.No. 56

aforementioned.

The submission of Ms. Ahlawat, in the aforementioned situation, that the

posts relate to teaching subject, cannot be accepted inasmuch as from a

perusal of entry at S.No. 58, which refers to the post of HSSST,

orthopedically handicapped persons also constitute a category, who are found

suitable therefor. As the post of PET is not included in entry at S.No. 56, they

would be deemed to

have been included in the entry at S.No. 58.

24. The letter dated 6.6.2002 issued by the Deputy Chief Commissioner is in

the following terms :-


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?6.6.2000 (sic)

F.No. 82/CCD/99/6020

Clarification regarding appointment of Orthopedically Handicapped persons

to the post of Physical Education Tr.

Dear Sir,

Please refer to your letter No. DE.4(3)/PET/EIV/2432 dated 24.4.2000 in the

above captioned subject.

As per the present arrangement for effecting reservation in Group 'A' and 'B'

identified jobs for the disabled, it is not possible to appoint any category of

persons with disabilities to the post of Physical Education Teacher in the pay

scale of Rs.5500-9000.

Yours sincerely,

(Anuradha Mohit)?

25. We may notice that an Expert Committee appointed by the Ministry of

Social, Justice and Empowerment dealt with the matter of identification of

posts in Groups 'A', 'B', 'C' and 'D' for reservation. The said Committee in its

report notified by the said Ministry vide their Notification dated 31.5.2001

made the following recommendations :

?(b) The nomenclature used for respective jobs in these recommendations

shall also mean and include any nomenclature used for the comparable post

with identical function of the identified post.

(c) ....However, no establishment on its own discretion can exclude any post

out of the purview of identified post for effecting reservation under Section 33

of the Act. In case any establishment feels that it required exemption from

filling up a vacancy against an identified post by the appropriate Government

the establishment under Section 33 of PWD Act, 1995 can approach the inter-

departmental committee constituted for the purpose to look into the matter

regarding exemption from Section 33 of the PWD Act. Other than this no

authority has the jurisdiction to accord exemption from filling up a vacancy

against an identified post for persons with disabilities.

(d) List of the identified jobs proposed to be notified herein under is in

addition to and not in derogation of the earlier list published by Ministry of

Personnel Public Grievances and Pensions, Department of Personnel and


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Training, Government of India in the year, 1986. This is in accordance with

Section 72 of Persons with Disabilities Act, 1995.

(e) If at any stage due to change in the pay scale of a post, identified for

persons with disabilities gets shifted from one group or grade to another

group or grade the post shall remain identified for the purpose of effecting3% reservation. For example the post of post graduate teacher, if at the time

of identification of post for persons with disabilities is a group 'B' post but

due to some policy change if the same post is reduced to Group 'C' the same

shall remain identified though its pay scale and grade has been changed.?

From a bare perusal of the said recommendations of the Expert Committee, it

is clear that a Department or an Establishment can be exempted from filling

up a vacancy of physically handicapped person only after the appropriate

Government has considered the report of an inter-departmental committee

constituted for the purpose and further no authority, not even the ChiefCommissioner, has any

jurisdiction to accord an exemption.

CONCLUSION :

26. In this view of the matter, in our opinion, the learned Tribunal has rightly

held that the letter of the Chief Commissioner of Disabilities dated 6.6.2000

was an invalid document. The said letter was not issued upon giving an

opportunity of hearing to the respondents herein. The respondents have

questioned their order of termination and/or non-allowing them to join their

duties and as such they cannot be held to be aware of the said letter dated6.6.2000 issued by the Chief Commissioner. The said letter was not necessary

to be specifically questioned in the writ petition, as has been submitted by

Ms.Ahlawat.

It will bear repetition to state that exception, if any, must be provided in

terms of the proviso appended to Section 33 of the said Act and not otherwise.

27. Furthermore, the findings of the learned Tribunal are fortified by the fact

that in the event in physically handicapped persons were totally debarred

from becoming PET, such a restriction ought to have been placed if they

would not have been admitted to the said courses of studies at all.

28. In the aforementioned situation, it was the duty of the petitioner herein to

issue necessary instructions. A person after acquiring a degree, which is

necessary for holding the jobs of the post of PET, cannot at a later stage be

told that he is not otherwise suitable. It is for the institutions to see as to

whether the disability of the persons concerned would be such so as to disable


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him from performing his duties for which he had been taking training. Once

they have passed the examination, it must be held that they were physically

fit to perform their duties and any report of any Committee or clarification

made by the Commissioner contra shall not be relevant for the

aforementioned purpose."

11.We do not see any reason not to apply that judgment in the case of the

petitioner as well. Consequently, we hold that termination of services of the

petitioner vide order dated 26.4.2004 is clearly unjust, illegal and arbitrary.

The petitioner herein was duly selected against the post. He joined the

services as PET on 13.1.2000. Almost more than 11 months thereafter he was

issued show-cause notice on 21.12.2000. The matter kept on lingering and the

termination order was issued only on 26.4.2004 By that time, the petitioner

has rendered more than 4 years of service as PET. The termination of

services of a handicapped person, like the petitioner, after his due selection on

the aforesaid grounds amounts to adding insult to his injuries. It is not a casewhere the petitioner had suppressed either his qualifications or the extent of

his disablement. With open eyes these aspects were examined by the

respondents before consideration of the petitioner's candidature. Not only he

was treated to have been eligible for the post with requisite qualifications, but

after the

selection process he was also considered fit for the said post. Taking a

somersault thereafter and grounding him on the premise that he is himself a

physically challenged person and, therefore, cannot give physical education to

the students is inadmissible. We also feel that having this consideration in

mind the respondents tried to find loophole in the educational qualificationsof the petitioner by coming out with the plea that he does not conform to the

recruitment rules. It was too late in the day to deny his eligibility when at the

time of considering his candidature the respondents allowed him to

participate in the selection treating that he is having requisite qualifications

for the post as per the recruitment rules.

12.We accordingly set aside the impugned judgment of the Tribunal as well

as the termination order dated 26.4.2004 and direct the respondents to

reinstate the petitioner in service with all consequential benefits. If at all, the

respondent could give him light duties having regard to his disablement but

could not terminate the services after selecting him and allowing him to work

for more than four years.

13. With these directions, this writ petition is disposed of.

(A.K. SIKRI)

JUDGE


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(VIPIN SANGHI)

JUDGE

December 20, 2007

nsk

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