Judgements By High Courts In Indiasubject: Section 33 Pwd Act-employment

WP(C) No. 4576/2005 IN 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

(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 reason that 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 showcause 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 his claim 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.

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 possess the essential qualifications prescribed for the post in question? As per the recruitment rules notified for the post of PET a candidate is to possess the following qualifications :"(a). The incumbent should be a graduate from a recognized university with Diploma in Physical Training from a recognized institution/university. Or (b). B.P.Ed. from recognized university and higher secondary. Or (c). B.Sc. (Physical Edn. Health and Sports) or its equivalent from recognized university/institution." 6. The petitioner is a Bachelor of Sports Humanities and he also passed MA (Physical Education) from CCS, Haryana Agriculture University, Hissar in the year 1996. It is clear from the above that there are three alternate qualifications provided in the recruitment rules to make a candidate eligible to the post of PET. According to the

respondents, qualifications possessed by the petitioner did not conform to the recruitment rules as Bachelor of Sports Humanities cannot be regarded equivalent to any of the aforesaid three qualifications. It is mentioned in the termination order dated 26.4.2004 that the curriculum at graduate level is altogether different than the course contents in diploma and physical education course and this is the reason because of which the respondents maintained that the petitioner does not fulfill the requisite qualifications. 7.The learned Tribunal referred to and relied upon the judgment of the Supreme Court in the case of Director, AIIMS and Ors. v. Dr. Nikhil Tandon and Ors., (1996) 7 SCC 741 wherein the Court has held that mere equivalence is not enough and the qualification must also be recognized as equivalent. ?Recognized evidently means recognized by the Institute or at least by the Medical Council of India?. The Tribunal was of the opinion that qualification possessed by the petitioner could not be treated as equivalent to that of the one prescribed for the post of PET in the absence of any order/notification issued by 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 a recognized university with major in physical and Education, Health and Sports from a recognized institution. What is of relevance is that the candidate should have acquired a graduation degree, and whether it is a B.Sc. Degree or a B.A. Degree is not of essence. Admittedly, the petitioner had a Bachelors degree in Sports Humanities and a M.A. /post graduation degree in Physical Education. In our view he is sufficiently qualified under Clause (c ) as aforesaid. It is not the case that the Haryana Agriculture University, Hissar is not a recognized institution/university. In fact, it is a university run under the control of the State of Haryana and is duly recognized. The question of 'equivalence', therefore, did not arise in this case at all.

8. Issue No. 2 - Whether he is incapacitated to impart training to the students because of his disability? If so, what would be the consequence? It is not in dispute that the petitioner suffers from disability which is covered by the Disability Act. He had submitted a medical certificate from the Medical Board, Civil Surgeon, Bhiwani (Haryana) mentioning the weakness of his right upper and right lower limb on account of depressed fracture of skull resulting in 65% handicap. This disability of the petitioner is even not in dispute. However, the case made out by the respondents for terminating the services of the petitioner was that this kind of disability makes him incapacitated to impart training to students in drill, physical education, various games i.e. hockey, cricket, volleyball and handball etc. According to the respondents, a PET who is himself disabled to the tune of 65% cannot deliver goods to the school children who are before him for their physical development when the appointment is considered qua the education and welfare of children. The petitioner cannot be thought of providing all round development of various faculties of the children. 9.Challenging the aforesaid ground to terminate his services, the petitioner had relied upon a Division Bench judgment of this Court in Govt. of NCT of Delhi v. Bharat Lal Meena and Anr., 100 (2002) DLT 157. The Tribunal, however, distinguished the said judgment on the ground that in the case of Bharat Lal Meena and Surinder Singh, who were also appointed as physical education teachers, they were already possessing the requisite qualifications attached to the post of PET but their services were terminated because the Government felt that as physically handicapped persons they cannot perform their duties properly. The Tribunal further opined that in the case of the petitioner he had acquired the disability after getting the degree of Bachelors of Sports Humanities. This is hardly any ground which provides justification for distinguishing the judgment. It is not in dispute that the petitioner was appointed along with Bharat Lal Meena and Surinder Singh as PET. It is also not in dispute that he was

physically handicapped and was entitled to apply for the post of PET under the quota meant for persons suffering from disability. Once it is held that the petitioner was having requisite qualifications for the post, it would hardly be a reason to distinguish his case from the case of Bharat Lal Meena and Surinder Singh on the spacious plea that those two persons acquired the qualifications after suffering disability whereas the petitioner suffered the disability after getting the degree. Two things are mutually exclusive. As far as disability is concerned, it has to be in existence at the time of applying for the post. It has nothing to do with attaining the qualifications. Whether these qualifications are obtained before or after suffering the disability is totally immaterial. The observations which were made by this Court in the case of Bharat Lal Meena (supra) to the effect that in spite of disability the said persons acquired the qualifications were in the context that the disability could not deter them from pursuing their education and acquisition of necessary qualifications. Otherwise, the principle which was laid down in the said judgment was that once the post of PET is reserved for disabled person and a suitable candidate, conforming to the qualifications and disability norms under the Act, is duly selected for the post, his services cannot be terminated on the ground that he is not fit to impart physical education to the students. 10.In the said judgment, the Division Bench has traced out the history of legislation, i.e. the Disability Act, and the purpose for which the Act was enacted, namely, to give succor to the persons suffering from disability and treat their rights as human rights. After tracing out the history, factual matrix of the said case is discussed. Since Bharat Lal Meena and Surinder Singh were appointed along with the petitioner herein against the same advertisement and same selection process against the four posts reserved for handicapped persons and Shri Meena was not allowed to join the post and services of Surinder Singh were terminated after issuing show-cause notice, as in the case of the present petition, the factual matrix narrated in the

said judgment regarding the advertisement, various Government orders, etc. on this subject would have same bearing. We, therefore, deem it proper to extensively quote from the said judgment the following portion which applies 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 5500-9000 30 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 dated 20.4.1998 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.

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 Public Grievances 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 Posts Classification 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,

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 OA and 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 :-

?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 interdepartmental 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

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 effecting 3% 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 Chief Commissioner, 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 dated 6.6.2000 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

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 case where 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 qualifications of 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

(VIPIN SANGHI) JUDGE December 20, 2007 nsk Unreportable Courtesy-

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