Showing posts with label Central Administrative Tribunal. Show all posts
Showing posts with label Central Administrative Tribunal. Show all posts

Monday, January 23, 2023

Central Administrative Tribunal directs CAG to appoint a meritorious candidate with Mental Illness disability to the post of Auditor

Court: Central Administrative Tribunal, Principal Bench Delhi

Bench:  Hon’ble Mr. Manish Garg, Member (J) & Hon’ble Mr. Anand S. Khati, Member (A)

Case No:    OA No. 339/2022

Case Title: Amit Yadav Vs. Comptroller & Auditor General &Anr. 

Date of Order : 23 January, 2023


The CAT Principal Bench directed the CAG to appoint the applicant with Mental Illness disability to the post of Auditor and added that such persons should be facilitated in a friendly and pleasant way that makes them feel relaxed and calms the nervous system. The bipolar persons neither can be treated with bias nor can be regarded as shame to the society. The court held the approach of the CAG as discriminaotry.

In order to raise awareness on the mental illness as a disability, the bench went on to discuss an illustrative list of celebrities diagnosed with OCD and bipolar disease, who have either talked about or living with the symptoms of the condition, have reached their peaks in their career. Among many people from other other countries, the list also highlighted Deepika Padukone, film actress who faced OCD during her career.  

The applicant is a person with benchmark disability (PwBD) having a disability of 55% under the Mental illness category suffering from Obsessive Compulsive Disorder (OCD) & Bipolar disorder. He has been on medication for the same since 2017.

He appeared in the recruitment process and successfully qualified the exam and was recommended for appointment as Auditor in Comptroller and Auditor General (CAG) of India. But the CAG returned his dossiers to SSC on 28.09.2019 claiming that the applicant is not suitable for the post of Auditor and that he may be re-allocated to any other suitable department.

That Section 34 provides for another 1% reservation jointly for two new recognized categories PwBDs under clauses (d) & (e) of sub-section 1 of Section 34. PwBDs with Autism, Intellectual Disability, Mental Illness (MI), Specific Learning Disability (SLD) have been categorized under clause (d) & Multiple Disabilities under clause (e).

The SSC in its official advertisement dated 05.05.2018 just extended the right of reservation to these newly recognized disability categories under the heading “Other PwD” category  but did not mention specific posts reserved for these new categories. The advertisement provided that vacancies will be notified in due course and the candidates belonging to new categories were asked to apply under “Other PwD category”.   Thus the post of Auditor remained recognized for other PwD which includes mentally ill in both the lists of vacancies notified in due course.

The felt that the Section 34 of the RPWD Act clearly rules that there has to be one percent reservation for the PwDs categorized under clauses (d) and (e) and not (d) or (e) i.e. reservation has to be made available to both the categories under clauses and not either of the two. Therefore, the correct course of action would have been to provide reservation to both the categories i.e. under clause (d) and (e) jointly whoever amongst them secures merit would be allotted the post. In this case, the applicant has been recommended as per correct interpretation of law because he was also qualified in the merit list along with other candidates under Multiple disability falling under clause (e). Thus, in the correct course of action, both should have been appointed against one percent reservation.

Explaining the neded of facilitating persons with Mental Illnesss at workplace, the court said, "Bipolar is mood swings, emotions, impulse, what is needed is right kind of professional assistance and  rehabilitation. The persons having bipolar disease are victim of circumstances. Such persons should be facilitated in a friendly and pleasant way that makes them feel relaxed and calms the nervous system. The bipolar persons neither can be treated with bias nor can be regarded as shame to the society. The stand adopted by intending department, i.e., CAG by itself is discriminated to the provisions of Section 34 of the 2016 Act qua the categories which are sought to be capable of performing function as Auditors. The action of the respondents defeats the purpose of RPWD Act. The paramount interest of the State is to sub-serve the aims and objects of the Act and, therefore, the persons with mental illness without any intelligible differentia cannot be discriminated qua the other diseases which fall in the zone of consideration under the provisions of RPWD Act.

The court while allowing the OA,  held that the return of dossier by CAG to SSC was bad in law and thus quashed and set aside the same. It further said that the applicant is also entitled to the protection of Section 20(4) of the RPwD Act. Thus in the event, applicant is found unsuitable for the post of “Auditor” by the Independent Medical Board, he shall be entitled to alternative offer of appointment to alternative suitable equivalent assignment/post in another department in consultation with Ministry of Social Justice and Empowerment and SSC while re-assigning/re-allocating the applicant to an alternative post, it become necessary that his pay, emoluments and conditions of service must be protected.

Read the judgement/ order below:

Thursday, July 8, 2021

CAT Delhi | Akhand Pratap Singh Vs. GNCT of Delhi & Others. | OA No.243/2021 | 08 Jul 2021

Central Administrative Tribunal
Principal Bench, New Delhi
Akhand Pratap Singh vs Govt. Of Nctd on 8 July, 2021
Bench: L. Narasimha Reddy
OA No.243/2021
This the 8th day of July, 2021
(Through Video Conferencing)
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Ms. Aradhana Johri, Member (A)

Akhand Pratap Singh, S/o Shri Balbir Singh, R/o Kh. No.13/10 and 13/1, H.No.13 UGF, Gali No.13, Bhagat Colony, West Sant Nagar, Burari, Delhi-110084. Aged about 38 years                                                     ... Applicant Versus 1. GNCT of Delhi Through Chief Secretary, 5th Floor, Delhi Sachivalaya, I.P.Estate, New Delhi. 2. Delhi Subordinate Services Selection Board, Through Chairman, F-18, Karkardooma Institutional Area, Delhi-110092. 3. South Delhi Municipal Corporation, Through its Commissioner, Dr. S.P.M. Civic Centre, Minto Road, New Delhi-110002. 4. North Delhi Municipal Corporation, Through its Commissioner, 4th floor, Dr. S.P.M. Civic Centre, Minto Road, New Delhi-110002.                                      ... Respondents

Justice L. Narasimha Reddy:

The Delhi Subordinate Services Selection Board (Board), respondent no.2 herein, issued a notification in the year 2013 for selection to six posts of Assistant Law Officer, (ALO) to be appointed in the Municipal Corporations of Delhi. One of the posts was reserved in favour of Physically Handicapped Category (PH). The applicant was one of the candidates under that category. A written test comprising of Tier-I and Tier-II was held and a short list of the candidates, who cleared the same, was published on 02.11.2017. The name of the applicant figured therein. However, in the final result published on 01.06.2018, the applicant was shown at SI. No.2 in the PH category, and one Mr. Neel Mani was at SI. No.1.

2. The applicant contends that Mr. Neel Mani did not join the post on account of the fact that he was selected in CBI. It is stated that the applicant submitted a representation on 15.04.2019 with a request to consider his case for appointment against the available vacancy. Correspondences were also ensued among the applicant, NDMC, SDMC and the Board, i.e. respondent no.2. The Board refused to accede to the request of the applicant as well as the Corporations, on the OA No.243/2021 Item No.29 ground that the vacancy lapsed on 31.05.2019 in terms of Clause 11 of the advertisement. It is in this background, that the applicant filed this OA with a prayer to direct the respondents to consider his case for appointment to the post of ALO, with Post Code No. 47/2013.

3. The applicant contends that he was placed at Sl. No.2 in the selection list and once the candidate at Sl. No.1 did not join, he is entitled to be considered. It is also stated that the selection process was spread over 6 to 7 years and when he is at the verge of selection, the respondents are trying to deny him the benefit of selection.

4. The respondents filed separate counter affidavits. The Board contends that the selection process is governed by the various conditions stipulated in the notification itself, and the waiting list prepared for this purpose has elapsed on expiry of one year. They contend that the very requisition for the dossier of the next candidate was received from the Municipal Corporation on 03.06.2019 and by that time, the waiting list has lapsed.

5. Respondents No.3 and 4 filed their separate counter affidavits which in a way support the plea of the applicant.

6. Today, we heard Mr. Ajesh Luthra, learned counsel for the applicant, Mr. Anuj Kr. Sharma, learned counsel for the 2nd respondent - DSSSB, Mr. R.K. Jain, learned counsel for 3rd respondent and Mr. D.S. Mahendru, learned counsel for the 4th respondent.

7. The issue is in a very narrow compass. The notification was issued in the year 2013, and the selection as such has taken place only in the year 2019. The applicant was a candidate under PH category and he was placed at SI. No.2 in the merit list. Since only one post was available, he was put in the waiting list. Clause 11 of the advertisement reads as under:-

"11. The DSSSB shall draw a reserve panel/waiting list upto the extent of 10% of the posts notified, in addition to the number of candidates selected as per the notified vacancies. The reserve panel/waiting list shall be valid for a period of one year from the date of declaration of result and the vacancies arising due to non-acceptance of the offer of appointment, not joining the post after acceptance of appointment, the candidate not found eligible for appointment or due to resignation of selected candidates, within one year of joining the post, shall be filled up from this reserve panel/waiting list."

From this, it is evident that the waiting list would be in operation for a period of one year. In the instant case, the developments took place almost as flash points. The selected candidate, namely Mr. Neel Mani was issued an offer of appointment sometime in January, 2019. The Corporation OA No.243/2021 Item No.29 went on writing to the selected candidate to report to duty. The final notice was issued on 27.05.2019 and he was informed that if he does not join within three days, his appointment shall be deemed to have been withdrawn. Immediately thereafter, the 4th respondent forwarded the dossier of Mr. Neel Mani to 3rd respondent, for onward transmission to the Board. The formal cancellation of the candidature was done only on 31.05.2019.

8. If one takes into account, the very objective underlying the preparation and maintenance of wait list, it is only to avoid the possibility of the post remaining vacant even after the selection process was concluded. The selecting agency has to make huge efforts to filter the candidates and then publish the select list. If for any reason, a selected candidates do not join, the looser will not be just the candidate or the selecting agency, but the user department, and thereby public at large. Once the selection process in this case was spread over seven years, counting of a day this way or that way should not make much difference, particularly when the applicant is a candidate with physical disability. We are of the view that the existing vacancy of the post of ALO reserved in favour of PH category can be offered to the applicant, who is next in the merit.

9. We, therefore, allow the OA and direct the respondents to consider the case of the applicant for appointment as ALO against the vacancy reserved in favour of PH category after due verification, by treating that the wait list was alive, when the requisition was received. On being appointed, the applicant shall hold the office prospectively, without any benefit anterior to the date of appointment. The exercise in this behalf shall be completed within a period of six weeks from the date of receipt of a copy of this order. There shall be no order as to costs.

       (Aradhana Johri)                 (Justice L. Narasimha Reddy)
         Member (A)                                 Chairman


Thursday, May 22, 2014

Central Administrative Tribunal directs Railways to appoint visually impaired candidates

Dear Colleagues,

Railways has always been very reluctant to hire persons with disabilities citing safety and security reasons though not even a single incident of safety has been attributed to disability till date.  Its actually a mindset of the Human Resource officials, inherent prejudices who attach incapacity to the disabled. 

In the instant case, nearly 10,000 visually challenged candidates had reportedly appeared in the examination in November-December 2013 after the railways advertised for 7,386 vacancies. All of them were, however, issued rejection letters by the Indian Railways before the results were announced for being “100 per cent visually challenged”.

In protest, the applicants moved  a petition in Central Administrative Tribunal (CAT), arguing that they are eligible and entitled to be considered for the posts, both on merit as well as under reservation for visually challenged persons.

The CAT in its order yesterday directed Northern Railways to publish a revised merit list and appoint the candidates, who qualified on merit as well as under the disability quota.

Arguing for the applicants, lawyer S K Rungta – himself visually challenged – said the Northern Railways’ recruitment cell must file complete results, including the results of 100 per cent visually challenged candidates, so that their merit position could be ascertained.

Rungta and lawyer Pankaj Sinha urged the court to direct the Railway Board to consider appointing the petitioners and other visually challenged candidates.

The railways responded by saying that the vacancies were for people with “low vision” and that 100 per cent visually challenged persons cannot be hired for the posts despite the fact that the posts in question are identified as suitable for completely blind by the Government of India.

The tribunal, however, directed Northern Railways and the Railway Board to publish the complete results within two months and appoint the qualified candidates.

Northern Railways spokesperson Neeraj Sharma refused to comment. “The matter is sub-judice, so we cannot comment. But the railways will take appropriate action after consulting its legal department,” he said.

Despite catena of judgments by High Courts and Supreme Court, the Railways continues to play hide and seek when it comes to the equal employment rights of the persons with disabilities. In this matter, despite CAT's direction,  I am sure, given the past experience, Railways will delay the matter by knocking the doors of Delhi High Court against the CAT Order. However, the writing is clear on the wall. The Railway officials in the Human Resource division needs serious sensitization on disability issues and also  need to put their house in order. The reporting mechanism, appraisal, posting/transfers, disability reservation & promotion processes & equalizing facilities, reasonable accommodation for the employees with disabilities is something that they desperately need to work on on an urgent basis. Hope the message goes to right people.

Related news in Indian Express today

Monday, August 5, 2013

Delhi HC questions MSJE why disabled can't function as surgeon

Court questions 3% reservation for differently-abled MBBS degree holders

Sunday, Jul 28, 2013, 12:59 IST | Place: Delhi | Agency: DNA

Ayesha Arvind

The Delhi High Court has questioned the 3% reservation for differently-abled persons holding MBBS degree only in non-surgical posts. While hearing a plea pertaining to such an appointment, the Court asked, "Does the Centre feel that differently-abled persons with valid MBBS degrees are unfit to perform their duties as doctors in surgical procedures?" The Court has sought a clarification from the ministry of social justice and empowerment in this regard.

A bench of Justices Pradip Nandrajog and V Kameswar Rao has also directed the chief commissioner for persons with disabilities to appear in the Court on Monday. The Court order follows a plea in which an ENT surgeon has challenged the appointment of an orthopedically-handicapped (OPH) candidate for the same post in AIIMS for which he too had applied.

The surgeon, Dilip Samal, had applied for the post of senior resident/demonstrator at AIIMS in July last year under the OBC category. He challenged the appointment of an OPH candidate after his RTI query revealed that the selected candidate had scored less than the qualifying marks in written test. Samal was later informed by the AIIMS authorities that as per procedure those who qualify under the OPH category are adjusted in the respective category, irrespective of the marks and merits in the entrance exam.

Samal then approached the Central Administrative Tribunal (CAT) for relief. In January this year, the CAT had set aside the selection of the OPH candidate Mohammad Mubashshirul Haq. It had ruled that the AIIMS had not notified any relaxed standards of suitability for the OPH candidates while inviting applications or any time thereafter. AIIMS, in turn, challenged CAT’s ruling before the High Court.

The Court took note of the fact that Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the DoPT guidelines mandate that authorities first identify posts to be reserved in medical facilities for persons with disabilities and specifically earmark them.

And that these seats cannot be adjusted with vacancies under other categories.

“Two issues arise out of the plea. The first being whether it is mandatory in law to identify seats reserved for differently-abled persons in medical specialities when applicants are invited from eligible candidates. The other issue which arises is a directive issued by the ministry of social justice and empowerment, government of India, requiring reservation in the medical field only in non-surgical posts,” the Court said.

“It is the second issue which troubles us more than the first. Prima facie, we find it strange that the ministry of social justice and empowerment would be of the opinion that differently-abled persons per se would be unfit to perform duties as a doctor in a discipline which requires surgical procedures to be performed,” it said.