Showing posts with label Own Merit Principle for disabled candidate. Show all posts
Showing posts with label Own Merit Principle for disabled candidate. Show all posts

Wednesday, March 1, 2023

Disabeld Candidates selected on own merit in open competition can't be adjusted against Reserved Disability Quota Vacancies.

Court: Supreme Court of India

Case: Civil Appeal No (s). 3303/2015  (arising out of Delhi HC Order dated October 11, 2013 in W.P.(C) 4902/2013 titled Union of India Vs. Pankaj Kumar Srivastava & Anr. )

Case Title: Union of India (Appellant)  Vs.  Pankaj Kumar Srivastava & Anr. (Respondent(s))

Date of Order: 01 March 2023

Brief Background:

In a significant development, the Central Government recently acknowledged before the Supreme Court that disabled candidates selected based on their own merit in open competition, alongside unreserved candidates, will no longer be counted within the 4% disability quota for public sector employment. This change is expected to result in more disabled candidates with lower merit rankings being chosen within the disability quota, ultimately increasing the overall representation of individuals with disabilities in public sector positions. 

This "own merit" principle for disabled candidates had been outlined in several DOPT Memorandums & other govt. circulars on reservations for persons  with disabilities previously, but it was not consistently followed by various public sector recruiting bodies. Shri Pankaj Kumar Srivastava, a visually impaired candidate, raised this grievance before the Central Administrative Tribunal (CAT). He alleged that the Union Public Service Commission (UPSC) was not adhering to the principle of own merit for the Civil Services Examination. Several disabled candidates, despite their merit ranking in the unreserved category, were being placed within the disability quota. If they had been categorized as unreserved, Mr. Srivastava, next in line in terms of merit, would have secured selection within the disability quota.

In the case, the UPSC argued that the "own merit" principle couldn't be applied to disabled candidates due to their relaxed medical standards and the use of accommodations such as scribes and extra time for examinations. However, both the CAT and the Delhi High Court disagreed with the UPSC's stance, directing a re-evaluation of the disability quota for the relevant year by moving "own merit" disabled candidates into the open category. 

The UPSC argued that the principle of general merit as evolved by the judicial pronouncements and incorporated in the DoPT OM dated December 29, 2005 is incapable of application in respect of PH Category as the medical standards are incapable of being relaxed for application of the said principle. The principle is unworkable in the scenario of reservation in favour of differently abled persons. The term relaxed standard has not been defined in case of persons with disability and no illustration of relaxed standards as given in respect of SC/ST have been provided in case of person with disability. And that a PwD candidate who would fail medical examination would not be adjusted against the unreserved vacancy and could not be counted on merits. If medical requirements are not relaxed it would not be possible to allocate service to the persons with disability. And lastly a PH category candidate cannot be a general merit candidates because at least he has to avail one or the other relaxation in the medical parameters.  

The Delhi HC said, "There cannot be two opinions about the applicability of the principle of general merit in the light of the Office Memorandum dated December 29, 2005 and April 26, 2006 issued by the petitioner itself. The same is the situation reflected in the mandate under Rule 17 of the CSE Rules 2008. Thus it is not possible for the petitioner to contend before us that there is an error in the order of the Tribunal in issuing directions to consider the entitlement of the applicants on the basis of said principle. We affirm the view taken by the Tribunal with regard to its observation that grant of the facility of scribe and extra time of 30 minutes in the examination to the visually impaired candidates does not amount to relaxation of standards in their favour. The omission on the part of the executive i.e. DOPT which is the Nodal Department to issue Office Memorandum/Executive Instructions on matters pertaining to the Central Service has created a situation wherein the benefit is sought to be given on the one hand through the issuance of Office Memorandum(s) dated December 29, 2005 and April 26, 2006, and stands taken away by the other hand as a result of the inaction to issue the consequential amendment contemplated by Rule 17 of the CSE Rules, 2008.

The court further said that the Petitioner (Govt.) has itself caused a situation, whereby the entitlements which ought to have been available to the differently abled persons as early as on February 07, 1996 (the date of the commencement of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) are being denied to them till today. The situation points out to a grim scenario which is the creation of the petitioner itself. The bench directed the Govt. to make the amendments as contemplated by Rule 17 fo CSE Rules 2008 and upheld the order of the CAT.

Appeal before the Supreme Court:

The matter was further appealed by UPSC in the Supreme Court of India which also rejected the UPSC's position and instructed the Government of India to issue a clarificatory circular to enforce the own merit principle. In compliance, the Government issued an clarifying Office Memorandum on September 27, 2022 on subject: Reservation for Persons with Benchmark Disabilities - Clarification with regard to the concept of own merit.

During the hearing on March 1, 2023, the Supreme Court directed that the OM dated 27 September 2022 be followed in all future selection processes strictly.

Access the Delhi High Court Judgement in W.P.(C) 4902/2013 titled Union of India Vs. Pankaj Kumar Srivastava & Anr.: