Exemption from the Act to be Notified

RK Arora vs Union of India

Filed Under: Sections 2, 32, 33 and 36 of Persons with Disabilities Act, 1995, Article 226 of the Constitution of India
Petitioner: Ravi Kumar Arora
Respondent: Union of India & Anr
Citation: 111 (2004) DLT 126
Court: In the High Court of Delhi
Judge: Sanjay Kishan Kaul

Facts

Ravi Kumar Arora had been working with the Ministry of Health, Government of India in Group 'B' since 1998. He was appointed to the post after having qualified under the general category. Prior to that, he was working as an Income-tax Inspector in the Ministry of Finance after qualifying for the exam ranking 13th in the general category. He had also qualified for the post of an administrative officer under the general category in the Uttar Pradesh State Civil Services Examination.

In 2000, he qualified in the written examination for the Central Civil Services and went for the interview, but was not successful. At the time of the interview, he also went through a medical examination conducted by the medical board constituted by the UPSC, but was not informed that he had low vision. He was successful in his next attempt in the preliminary exams and was declared a qualified candidate.

Thereafter, he had to go through another medical examination and was disqualified on grounds of low vision. He immediately made a representation admitting that he was myopic since birth. He further added that visually disabled persons were eligible to appear for civil services examination therefore, to be treated as disabled and be given a suitable job accordingly.

The UPSC Board responded that for a candidate to be considered under the handicapped category prior information in the application form was essential. Since Ravi had applied under the general category, his status could not be changed as per the rules. The Board also asked him to submit a fresh certificate of his disability in the prescribed format.

Ravi submitted a fresh certificate in the prescribed format duly certified by a doctor from Safdarjung hospital. However, this request was also rejected on the grounds that the concession was available for a blind candidate and did not include candidates with myopia.

Thus, as matters stood, Ravi was not considered either under the handicapped category or as a general candidate, resulting in him filing the present writ petition. In the petition he made two requests.

Firstly, to be allowed to give the Examination of 2002 in the category of partially blind/low vision.

Secondly, to quash the letter declaring him as unfit for selection on the ground of low vision.

Through an interim order he was allowed to take the exam as a visually challenged person. He could not however, qualify in the Main Examination and therefore, he claimed the right to be appointed to the post meant for a disabled person for the year 2001.

The Court asked the Commissioner appointed under the Persons with Disabilities Act to participate in the proceedings. During the proceedings, some facts were brought to light which showed that not one candidate applying as visually impaired had been recommended in the past four years.

Further, no post had been identified for a visually impaired candidate, during that period, out of the 26 posts in the Groups 'A' and 'B'. Attention was also drawn to the Narasimhan Committee report in 1996 suggesting that all Government Ministries/ Departments should identify posts for persons with disabilities, but none of the Ministries/ Departments had done so until the examination in 2001.

Observations of the Court

The Court referred to the relevant provisions under the Act and observed that it was clear from the provisions that if any particular service or establishment was to be exempted from the provisions of the Act, the Government could do so by a notification. To the argument that the IAS sought exemption from application of the Act, but had issued no notification apparently shocked the Judge.

The Court noted that Ravi had not been successful in the year 2002 since there were no seats reserved for visually impaired and observed that since he had qualified in the year 2001, he could have been appointed when they discovered that he was visually impaired (refer to quotes).

The Court held that to deny benefit of appointment to the post would be making a mockery of justice. Based on the point raised by Ravi's lawyer that he could be in the Indian Postal Service on his rank, the Court held that he should be appointed in the Postal Service or an equivalent service.

Further, directions were given to treat him at par with his batch mates in terms of service period for determination of his seniority, monetary benefits and promotions. The Government was directed to take necessary steps within one month.

Held: The Writ Petition was allowed

Sections Referred:

• Section 2, 32, 33 and 36 of the Persons with Disability (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995

Cases Referred:

• National Federation of Blind vs. Union Public Services Commission & Ors, (1993) 2 SCC 411
• Nandkumar Narayanrao Ghodmare vs. State of Maharashtra & ors, LT (1995) 8 SC 156
• Indra Sawhney & others, (1992) 3 SCC 217

Quotes from the Judgment:

"It is no answer to be given by the respondent that the petitioner did not apply under the category of visually impaired person. There was no specific column for the said purpose except a general column for handicapped persons. There was further no post identified or reservation made for such visually impaired persons. The result in the case of the petitioner would have been same, even if the petitioner had applied in the said category as was in the case of 2002 when also no post had been reserved".