Non Discrimination in Service

Pradeep Jagannath Talekar and Others vs. Union of India and Ors

Filed Under: Section 33 of the Persons with Disabilities Act, 1995, Article 309 of the Constitution of India, 1950
Appellant: Pradeep Jagannath Talekar and Others
Respondent: Union of India and Ors
Citation: O.A. No: 250/96, 717/97 & 754/98; Decided: 21.2.2002
Court: In the Central Administrative Tribunal
Judges: Ashok Agarwal and Shanta Shastry

Facts

This case consists of three different appeals that involve a common issue of law.

The first appeal was filed by a person (name not mentioned) working as a Tax Assistant who became eligible for promotion to the post of Inspector of Central Excise. A selection was held for the latter post and the applicant was allowed to appear in the written test, the 'viva voice' test and the physical test. After the selection process was over, a select panel was declared and 71 candidates were selected and promoted. This applicant's name was not included in the panel.

Thereafter, a further selection was made the next year for the post of Inspector of Central Excise. This time, the applicant was allowed to take the physical test since he had cleared the written test the last time. He was however not called for the 'viva voice' on the ground that he was a physically handicapped person and was therefore exempted from the purview of the post, which could be identified as suitable for disabled people.

In response to this order, the applicant approached the Court to quash and set aside the results of the selection. The applicant also contended that his name should be included in the final select list with consequential benefits that formed a part of the promotion. He also asked that he should be called for the 'viva voice' on the basis of the physical test.

The applicant's main contentions were that he had undergone the physical test as well as the other tests successfully. He stated that he had secured 68 marks in the written test and the department had kept 60 marks as the benchmark of "Good" marks. The applicant also pointed out that he had also obtained full marks in the interview and he therefore saw no reason why his name should be excluded from the selected list.

The second applicant joined as Lower Division Clerk (LDC) and was promoted to the post of Upper Division Clerk (UDC) against the general quota. After about 6 years, applications were called for promotion to the post of Preventive Officer. He submitted an application for the promotion, but was not allowed to participate in the selection process.

A further circular was issued inviting applications for promotion to the post of Preventive Officer on ad hoc basis against a cast recovery post. However, he was not allowed to appear in the test and the applicant filed a petition in the Court. While the order was pending, the Tribunal directed the respondents to consider the applicant's case for the purpose of the physical test, interview and service records.

The Court further directed that the result of the applicant be kept in a sealed cover. Accordingly, the applicant appeared for the selection procedure and his results were kept in a sealed envelope.

The third applicant joined service and was promoted as UDC and later as Tax Assistant against the general category. According to one channel of promotion, the next promotion was to the post of Deputy Office Superintendent Grade II.

The applicant however refused the promotion and was consequently debarred for consideration. He was once again considered for promotion to the same post and he refused the promotion once again and was again debarred for consideration.

In the mean time he represented to be considered for promotion to the executive post of Examiner/Preventive Officer from the category of UDCs. His request was rejected on the ground that he was physically handicapped and the post was an executive post and had not been identified as suitable for appointment of physically handicapped persons.

He then made a further representation to allow him to appear for the selection for the post of Examiner as a general candidate. According to him the recruitment rules for the post of Examiner do not prescribe any physical test. However, his representation was rejected on the ground that he was a physically handicapped person.

The main contention of the three applicants was that they were not seeking promotion on the basis of reservation for the physically handicapped. They stated that they were willing to compete with the general candidates without any relaxation in standards.

According to them they fulfilled all the criteria for the post and therefore they could not be debarred. In order to support their arguments they also referred to previous judgments. They also submitted a letter issued by the Ministry of Finance in which it had been stated that the case of each physically handicapped individual would be considered on an individual basis.

There was also a letter by the Ministry of Finance addressed to the Bombay Customs Orthopedic Staff Association, which stated that no handicapped individual would be barred from applying to the Preventive Office post. And on the basis of these rules, the applicants claimed that they were entitled to be considered for selection to the post of Examiner/Preventive Officer/Inspector of Central Excise against general quota.

The lawyer on behalf of the UOI claimed that in regards to the first applicant, his name was not there in the merit list, and he had therefore had not been included in the selected panel. When applications were invited the second time for promotion, he had been allowed to take the physical test but the department had later found that the Inspector of Central Excise was one of the posts that had been identified as not suitable for the physically handicapped persons.

In response to this argument, the lawyer on behalf of the applicants submitted a copy of a notification issued by the Ministry of Social Justice and Empowerment whereby the post of Inspector of Central excise/Preventive Officer/Examiner of Customs had been identified as being suitable for being occupied by a physically handicapped person who possessed one leg. According to the lawyer, the applicants were therefore eligible for consideration of promotion.

Observations of the Court

The Court examined the arguments extended by both the parties. The Court held that the letter to which the respondents had referred to did not debar the physically handicapped persons from appearing in examination with general candidates.

According to the Court, the applicants were entitled to be considered for selection to the post of Inspector/ Examiner/Preventive Officer of Central Excise as general candidates without any relaxed standards at the relevant time and not considering these candidates for promotion was not justified.

With respect to the first applicant, the Court declared that it would be unfair if the Court interfered in the selections made by the Central Excise since 71 candidates had already been selected. The Court therefore was unable to grant any relief to the first candidate.

In regards to the second applicant, the Court held that since he was eligible for promotion, the respondent should open the sealed results of the candidate and if found suitable according to merit then he should be given promotion.

For the third applicant the Court held that since he had not been allowed to sit for the selection process, he would now become eligible for any future selections. The Court also looked into the possibility that vacancies might have come up, but the applicants could now be ineligible because of the age limit.

According to the Court it was therefore reasonable that the applicants should be given benefit of age relaxation while being considered for any selection against immediate future vacancies but only for one selection.

Sections Referred:

  • Section 33 of the Persons with Disabilities Act, 1995
  • Article 309 of the Constitution of India, 1950

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Nand Kumar Jivan Dalvi vs. Union of India through the Director General, ESIC, New Delhi and Anr

Filed Under: Persons with Disabilities Act, 1995
Appellant: Nand Kumar Jivan Dalvi
Respondent: Union of India through the Director General, ESIC, New Delhi and Anr
Citation: O.A.No.886 of 1994 Decided 10.05.2000(unreported)
Court: In the Central Administrative Tribunal, Mumbai Bench
Judges: R.G. Vaidyanatha and Shri B.N. Bahadur

Facts

Nand Kumar was working as a U.D.C. and was promoted as Assistant/Head Clerk. However his promotion was stopped on grounds that he was visually handicapped and was therefore not entitled to promotion.

Nand Kumar then filed a Petition challenging the same. While the petition was pending before Court, the UOI however corrected this error and granted him promotion with retrospective effect. The case then came up for hearing.

Nand Kumar's lawyer contended that he was entitled to the pay and allowances of the post of assistant from the time he had been first promoted, before the reversion of the promotion.

The lawyer on behalf of the UOI however submitted that Nand Kumar had not worked for that period as an Assistant and was therefore not entitled to any salary or allowances of that post.

In response to this Nand Kumar's lawyer submitted that he had been deprived of the post by an order issued by the UOI and it was not his fault, that he had not been able to work on that post. It was therefore argued that he was entitled not only to the promotion but also to the pending salary and allowances.

Observations of the Court

The Court stated that Nand Kumar's promotion had been wrongly reverted by the UOI. Even though the UOI had corrected this mistake by promoting him, they were obliged to pay his salary and allowances in accordance with the promotion.

Accordingly the Court allowed the petition and directed the UOI to pay him salary and allowances from the time he had become eligible for promotion. It was further stated that the UOI should comply with the order and should pay back wages to him within a period of 3 months.

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Jai Shankar Prasad vs. State of Bihar and Others

Filed under: Articles 32, 136, 226, 316 and 317 of the Constitution of India, 1950
Appellant: Jai Shankar Prasad
Respondent: State of Bihar and Others
Citation:(1993) 2 Supreme Court Cases 597
Court: In the Supreme Court
Judges: PB Sawant and N Venkatachala

Facts

Jai Shankar Prasad, a member of the Bar filed a Public Interest Litigation before the High Court of Patna challenging the appointment of Dr.Shiva Jatan Thakur as a member of the Bihar State Public Service Commission. The High Court dismissed the Writ Petition following which Jai Shankar then filed this appeal.

The attack against the appointment of Dr. Shiva was based on two grounds:

  • On the date of appointment, Dr. Shiva was the seventh non-service member. The total strength of the Public Service Commission is eleven and the appointment of the seventh member from a non-service category was violative of Article 316 of the Constitution, which required that one-half of the members should be those who have held office under the Government of India or State for a period of at least 10 years
  • Dr. Shiva was totally blind from prior to his appointment and was unfit to be appointed because of this physical infirmity.

Arguments made on behalf of Dr. Shiva

In response to these allegations, Dr. Shiva submitted a counter-affidavit. It was stated that Dr. Shiva was the son of a peon who retired from railways and belonged to the backward community of barbers. He had been blind since the age of 8.

However, despite his blindness he had pursued his education and career successfully and had acquired several degrees and diplomas. He had been a teacher in a College for 8 years and was promoted to the post of a Reader in English on completion of 8 years of service.

Apart from this he was the first teacher of Patna University who had been unanimously voted for the award of D Litt on account of his excellent thesis. He had submitted papers to several national and international conferences.

The Government of Bihar had recommended him for the prestigious National award, "Padamshree" for his services as a Member of the Public Service Commission. The President of India had conferred upon him the national award, which stated that it was given to him in public recognition of his outstanding performance as the most efficient employee.

Dr. Shiva further contended that it was his dispute with the Chairman of the Commission who was backed by the Chief Minister of State that had resulted in this Petition against his appointment. He also stated that the Chief Minister, in his interview given to a local daily, had made his intention public to move the Court against Dr. Shiva's appointment.

He further stated that it was on account of his academic distinctions and with full knowledge that he was blind that he was appointed as a Member of the Public Service Commission. His experience in the Public Service Commission also showed that his blindness did not come in the way of his discharging his duties effectively.

In this context he pointed out that the only thing he could not do was to assess an individual's external personality on the basis of the candidate's external appearance, which was not a material requirement for the candidates of many posts.

He further added that the Commission sits in Committees or interviews and every Committee usually consists of four or five persons including members of the Commission and experts from the respective fields.

His main contention was that such decisions were reached after due discussions and deliberations among the members of the Board. Hence, if required he could depend upon the opinion of other members of the interview Board for the external appearance of the candidates and this dependence was not of a kind that should make his own appointment invalid.

Arguments made on behalf of Jai the State of Bihar

The State Government also filed an affidavit that was approved by the Chief Minister of the State. The following points were raised in the affidavit:

  • It was stated that upon reconsideration of the matter it was felt that there had been a departure from Article 316 of the Constitution and because of this reason Dr. Shiva’s appointment as a member of the Bihar Public Service Commission was not justified.
  • It was further submitted that at the time of Dr. Shiva’s appointment his infirmity was not specifically considered since his biodata mentioned this fact very casually and because of that it escaped the attention of the constitutional authorities. It was also argued that there had been no mention of whether Dr. Shiva’s blindness was congenital or partial, complete, curable etc.
  • Finally it was submitted that the nature of the duty of a member of a Public Service Commission was to visually interview each of the candidates to determine their suitability. After his appointment it came to the notice of the State that his blindness was clearly hampering effective discharge of official duties.

Observations of the Court

The Court examined the relevant sections of the Constitution and held that the strict adherence to the proviso to Article 316 was not practicable and the total strength of the Commission as well as the number from each of the categories was bound to vary from time to time.

At any given point, therefore, it may not be possible to maintain the proportion between the two categories strictly in accordance with the direction given in the Constitution. Therefore, the Court rejected this argument and held that Dr. Shiva’s appointment could not be cancelled on account of the stipulation of Article 316 of the Constitution.

With respect to the next argument that Dr. Shiva’s blindness interfered with his effective discharge of duties, the Court held that the State Government itself had recommended him for a ‘Padamshree’ for his efficient discharge of his work as a member of the Commission and that too over a short span of two months.

The Court also pointed out that the Commission normally operated through Committees and in regards to the external appearance the other members of the Committee could provide Dr. Shiva relevant information so that he could assess the overall merit of the candidates.

The third argument was based upon the fact that aspects about blindness of Dr. Shiva were not specially mentioned in the biodata and because of this reason the State Government had not considered the point and appointed him.

The Court held that this argument was quite ridiculous since it was widely known that Dr. Shiva was totally blind from childhood especially since the extraordinary abilities exhibited by him despite his blindness were the main reason behind his appointment as a Public Service member.

In light of these reasons the Court dismissed the appeal and directed both Jai Shankar Prasad and the State of Bihar to pay costs of the appeal to Dr. Shiva in the amount of Rs. 5000 and Rs. 10,000 respectively.

Sections Referred:

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Orissa Association for the Blind and others vs. State of Orissa and others

Filed under: Section 33 of the Persons with Disabilities Act, 1995
Appellant: Orissa Association for the Blind and others
Respondent: State of Orissa and others
Citation: 98 (2004) CLT 716
Court: In the High Court of Orissa
Judg: BP Das

Facts

The Director of Elementary Education, Orissa, issued an advertisement, in a local Oriya daily, inviting application from eligible candidates within the age group of 18-42 years for engagement as Swechhasevi Sikshya Sahayaks (SSS) in the primary and upper primary schools in different districts of the State. In the advertisement, the minimum educational qualification prescribed for the post was Metric with CT training or Graduation with B.Ed.

In reference to reservation, it was stated that reservation for candidates belonging to ex-servicemen, handicapped and eminent sports personnel shall be made applicable.

In response to the advertisement several blind candidates also submitted, their applications, out of these, two candidates, namely, Suresh Biswal and Rabindra Kumar Sahoo possessed the B.Ed qualification, and some other candidates had completed their training for a Diploma in Education (D.Ed).

However, even though these candidates were entitled to be engaged as SSS under the reservation meant for them, they were denied employment.

Thereafter, the Orissa Association for the Blind (represented through its General Secretary and two members) filed this Writ Petition challenging the action of the State and its officials, in not considering the applications of the blind candidates under the reservation meant for them.

In the petition, the association sought for a direction to the State to appoint the trained/untrained blind candidates and other similar candidates as SSS relaxing CT/B.Ed training qualification under the 1% reserved quota.

In order to substantiate this claim the Association referred to the decision of the Government of India to provide 1% reservation in the vacancies for rehabilitation of the physically handicapped persons in public service.

It was also stated that in the Resolution issued by the Government, certain concessions were allowed to the physically handicapped persons for their eligibility for appointment to posts and services reserved for them.

The Orissa Association for the Blind submitted that the Resolution clearly revealed that blind persons could be appointed as Teachers (Primary T & A) and ‘Teachers in Social Sciences’.

The Orissa Association for the Blind further alleged that despite the policy of the State Government and the guidelines issued in the Government Resolution, the opposite parties had not given employment to the blind candidates as SSS.

In opposition to these allegations, the State of Orissa represented through the Secretary, Schools and Mass Education filed a counter-affidavit and stated that the writ petition was filed under the garb of Public Interest Litigation (PIL), which was not maintainable under law. Instead the aggrieved party should have approached the Court directly.

It was further stated that the Government had issued advertisements to engage candidates as SSS, wherein in addition to the qualification required for the above posts, the duties of the SSS were clearly indicated.

According to the Secretary, Schools and Mass Education, blind persons were not suitable to work as SSS since the work was not confined to teaching children but also required motivating the parents to get their children admitted to schools.

According to the State it was not possible on the part of a blind person to carry out the objectives of the SSS scheme. In the counter-affidavit, the State Government relied upon a report submitted by the Principal of DPISAE, Berhampur, wherein it was stated that the performance of blind persons as trainers was not at all encouraging and due to visual impairment, they were not eligible to perform the duties of a normal teacher.

In the light of this report, the State tried to justify the action of not considering the case of the blind candidates.

Observations of the Court

The Court examined the arguments extended by both the parties. The Court was not inclined to accept the first point raised by the Secretary, Schools and Mass Education, that the writ was not maintainable as a PIL as it concerned a large number of physically handicapped persons for engagement as SSS.

On considering the other objections raised by the State, the Court was not able to find a single document that indicated that the Government had taken a decision to not keep any post of SSS reserved for the blind, as they were not suitable.

According to the Court, the letter submitted by the Principal of DPISAE could not override the resolution of the Government along with the statutory provisions made in the Persons with Disabilities Act.

The Court held that there was neither any statutory notification nor any resolution of the State Government to debar the blind candidates from being engaged as SSS for which they had applied if they were otherwise eligible for this post.

Accordingly, the Court allowed the Writ Petition and directed the State Government to issue necessary directions to all the collectors who also functioned as chairmen of SSS to consider the candidature of blind candidates and other similarly placed candidates under the reserved category in accordance with Section 33 of the Act and the resolution of the State Government.

The Court directed fresh selection lists to be prepared and the candidates so selected to be issued letters of engagement. The Court held that the entire exercise should be completed within a period of three months.

Sections Referred:

  • Section 33 of the Persons with Disabilities Act, 1995

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Ghanakeshi Sahu vs. Director, Elementary Education, Orissa

Filed under: Sections 2(1) (i) and Section 2(t) of the Persons with Disabilities Act, 1995
Appellant: Ghanakeshi Sahu
Respondent: Director, Elementary Education, Orissa
Citation: 99 (2005) CLT 27
Court: In the High Court of Orissa
Judge: BP Das

Facts

Smt. Ghanakeshi Sahu was a Metric CT and had qualified her +2 as well. She came from a socially and economically backward class (SEBC) and was hearing impaired with 50% disability. The Director, Elementary Education, issued an advertisement for engagement of Swechhasevi Sikshya Sahayak (SSS) under the Hindol Education District.

In response to this advertisement she applied for the post of SSS. As per the selection made by the Collector-cum-Chief Executive officer, Zila Parishad-cum-Chairman, Selection Committee (SSS) Dhenkanal, she was placed at No. 49 in the provisional select list of 54 students.

According to Ghanakeshi, the number of vacancies notified under the advertisement was 44. She came within the category of “Sports and Physically Handicapped CT and B.Ed candidates” and in this category she was placed at the 2nd position. The candidate who stood first here belonged to the General category and since she belonged to the SEBC her position would have been 1 in this category.

Thereafter, the Director, Elementary Education, Orissa issued a notice and according to that notice 19 candidates were selected from metric CT category but her name was not there. Her specific allegation was that one of the persons who had been selected as SSS had secured 82% marks whereas she had secured 87.5% marks. She then filed this writ petition challenging the action of the Director, Elementary Education, Orissa in not including her name in the final list

A counter-affidavit was filed on behalf of the Collector-cum-Chief Executive officer, Zila Parishad-cum-Chairman, Selection Committee (SSS) Dhenkanal. It was stated that as per the clarification issued by the Government for the School and Mass Education Department, the blind, deaf and ‘dumb’ were not suitable for the profession of teaching in general schools.

It was further submitted that Ghanakeshi’s name was not included in the final list because she had a hearing impairment above 45% and because of this, she was placed under the deaf category and thus was not eligible to be engaged as SSS.

On the other hand, the candidate who selected from the physically handicapped category was orthopaedically handicapped with 75% disablement and was therefore eligible. It was also stated that the Persons with Disabilities Act, 1995 did not have any application to the selection and engagement of para-teachers under SSS.

Observations of the Court

The Court examined the relevant provisions of the Act and held that Ghanakeshi was a person with a disability who possessed the requisite qualification. According to the Court the non-inclusion of her name in the list was illegal. The Court further pointed out that the provisions of the Act could override the clarification issued by the Government for the School and Mass Education Department.

The Court directed the Collector, Dhenkanal, who functioned as the Chairman, Selection Committee (SSS) to consider the candidature of Ghanakeshi for engagement as SSS and to take appropriate steps in this regard. The Court also stated that the entire exercise should be completed within a period of three months. The Writ Petition was accordingly allowed.

Sections Referred:

  • Sections 2(i) and 2(t) of the Persons with Disabilities Act, 1995

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Smt Omvati Kalshan vs. Delhi Development Authority

Filed under: Section 47 of the Persons with Disabilities Act, 1995 Articles 14 & 226 of the Constitution of India
Appellant: Smt.Omvati Kalshan
Respondent: Delhi Development Authority
Citation: 125 (2005) Delhi Law Times 57
Court: In the High Court of Delhi
Judge: S Ravindra Bhat

Facts:

Omvati Kalshan was working with the Delhi Development Authority (DDA) when her eyesight started deteriorating. At that time she was in the cadre of Private Secretary, holding the post of Welfare Officer in the grade of Rs. 650-1200 (pre-revised). One day, in the year 1985 when Omvati reported for her duties, the DDA insisted on her medical examination and also demanded a fitness certificate.

Subsequently, Dr Rajendra Prasad from the Center of Ophthalmic Sciences certified that though Omvati was visually impaired she could perform her duties as a welfare officer but she would encounter difficulties in deskwork.

After considering her case, the DDA decided to utilize her services in a lower grade/post of Reception officer, in a pre-revised scale of Rs. 500-900. Omvati was left with no choice but to accept the position. She was told that her refusal would result in her retirement on medical grounds.

Thereafter, she made several representations against this move but she met with no success. Subsequently she accepted the post of a receptionist in a lower pay scale.

However, she kept making representations to the Government of India and wrote a letter to the DDA requesting it to consider granting relief to her. In the year 1999, the DDA wrote to the Deputy Chief Commissioner for Disabilities, Government of India and indicated that Omvati’s claim for a higher pay scale was under consideration.

Subsequently she was placed in the pay scale of Rs. 6500-10,500 and this pay scale was in respect to the post of a personal assistant.

In the year 2004, the DDA turned down Omvati’s request for promotion to the next cadre. Omavti then filed this appeal against the decision of the DDA. According to her this decision was arbitrary and violative of Article 14 of the Constitution of India and Section 47 of the Persons with Disabilities Act.

Arguments made on behalf of DDA

In their counter affidavit, the DDA took the stand that Omvati was offered the post of a Reception Officer despite her visual impairment on humanitarian grounds. The alternative would have been to superannuate her on an invalid pension.

It was further argued that Omvati’s seniority had been maintained separately as Reception Officer, which was distinct from the PA cadre and therefore she was not entitled to promotion to the post of Deputy Director.

Only those working as PS/PA were eligible for this promotion. It was also contended that Omvati was not entitled to conveyance allowance since it was available only for persons who were blind or were orthopedically impaired with minimum of 40% disability of both upper and lower limbs.

Arguments made on behalf of Omvati

Omvati’s lawyer contended that she had been forced to accept a post with a lower pay scale and her prospects for promotion were ruined. According to the lawyer the DDA could not foreclose her claim to be treated as part of the original cadre, in which she was holding the post.

The lawyer also stated that denial of conveyance allowance amounted to discrimination towards Omvati since it created hurdles in the normal performance of her duties.

Observations of the Court

The Court examined the arguments extended by both the parties and also referred to several previous judgments in similar cases. According to the Court the only ground for “down grading” Omvati for the grade of PA/Welfare Officer was her bad eyesight. The Court pointed out that it was not because she was unable to perform other tasks or was found to be incompetent.

Her services as an employee of the organization had been used by the DDA for more than 15 years. However, while doing so she had been placed in a lower grade. She had been placed in a “separate” seniority list but no attempt had been made to disclose whether such separate seniority would lead to any promotional avenues.

The Court held that the stand taken by the DDA in denying any promotional avenue to her was in contradiction to Section 47 of the Act. With respect to the issue of conveyance allowance, the Court held that the decision taken by the DDA was arbitrary and held that Omvati was not disentitled to such an allowance.

In light of these reasons, the Court issued a direction to the DDA to treat Omvati as eligible for promotion to the next higher grade, if she had been put in the requisite period of service and if she was otherwise qualified to hold the post.

According to the Court, Omvati would be considered for promotion, in accordance with the rules, on the basis of her seniority in the grade of PA, which would also include the period spent by her as a receptionist.

A further direction was issued to the DDA to make an appropriate payment of conveyance allowance. The Court held that she would be entitled to arrears of such conveyance allowance too. The DDA was directed to consider her case and pass suitable orders within a period of 6 months.

Sections Referred:

  • Section 47 of the Persons with Disabilities Act, 1995
  • Articles 14 and 226 of the Constitution of India

Cases Referred:

  • Narendra Kumar Chandla vs. State of Haryana, AIR 1995 SC 519
  • Vijender Singh vs. DTC, 105 (2003) DLT 261
  • DTC vs. Harpal Singh, 105 (2003) DLT 113
  • Dilbagh Singh vs. DTC, 123 (2005) DLT 318; 2005 (7) AD (Delhi) 599

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