THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
WRIT APPEAL No.771 of 2019
JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
The present appeal is arising out of an order dated
19.07.2019 passed in W.P.No.1329 of 2019.
The facts of the case reveal that the respondent
No.1 has submitted an application pursuant to the Notification dated 06.09.2017 for appointment to the post of Clerk in respect of the vacancies earmarked for the year 2018-19 in various banks under the specially abled category. The undisputed facts reveal that four posts were reserved for Orthopaedically Challenged (OC) persons, two posts were earmarked for Visually Impaired (VI) and two posts were reserved for Intellectually Disabled (ID) persons. The respondent No.1, as she was not able to understand the ID category and was under the impression that it includes OC persons, applied under the ID category. In the application format, under the ID category, it was mentioned as ID category and other persons (ID and others). She was selected for the post of Clerk by an order dated 24.05.2018. However, while verifying her documents, the Bank noticed that she 2 is in fact a person under the OC category and a show cause notice was issued on 22.10.2018. She did submit a reply. However, the Bank has terminated her services by order dated 28.12.2018. She has preferred a writ petition and the learned Single Judge allowed the writ petition.
The order passed by the learned Single Judge allowing the writ petition reads as under:-
"Learned counsel for the petitioner contends that appropriate orders be passed in the writ petition by setting aside the impugned termination order dated 28.12.2018, thereby continue the petitioner as a Clerk under 'OC' category. Learned Standing counsel appearing for the respondents had contended that petitioner has secured 37.79 marks and the last candidate, who got selected under Orthopaedically Challenged category, had secured 50.00 marks. As per the marks secured, since the petitioner is not coming within the zone of consideration under "Othopaedically Challenged" category, the case of the petitioner cannot be considered for appointment under the "Orthopaedically Challenged" category. Apart from that, the learned Standing counsel has also brought to the notice of this Court, the guidelines issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training vide Office Memorandum dated 15.01.2018 and guideline No.8.1 of the said guidelines reads as follows:
"8.Inter se Exchange and Carry Forward of Reservation In Case of Direct Recruitment:
8.1 Where in any recruitment year any vacancy cannot be filled up due to non-availability 3 of a suitable person with benchmark disability or for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the following four categories of disabilities, at one percent each to each category:
(a) blindness and low vision
(b) deaf and hard of hearing
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf- blindness."
A perusal of the aforesaid guideline makes it abundantly clear that the Banks cannot interchange the slots meant for disabled persons and since the petitioner was appointed in the slot meant for Intellectual Disability, the Bank cannot interchange the category "Intellectual Disability" with that of "Orthopaedically Challenged" category. The learned Standing counsel, therefore, contends that there are no merits in the writ petition and the same is liable to be dismissed.
This Court, having considered the rival submissions made by the learned counsel on either side, is of the considered view that, firstly, the abbreviations used in the application form are not expanded in full form and option "Orthopaedically Challenged" is spelt out as 'OC' and secondly, abbreviation 'OC' in any recruitment process is identified as "Open Category". Since there is no abbreviation as 'OH' in the online application, the petitioner got confused and had erroneously opted for "ID and others". Be that as it may, petitioner had 4 submitted Orthopaedically Challenged Certificate along with application form and after verification of certificates by the respondents, the petitioner was given appointment as a Clerk in the respondent Bank. Moreover, the Government of India issued guidelines on 15.01.2018, whereas the notification issued by the 2nd respondent was on 06.09.2017. Any guidelines issued after issuance of the notification dated 06.09.2017 will not have any retrospective effect. Therefore, the said guidelines have no application to the notification dated 06.09.2017. Admittedly, as there are two unfilled vacancies under "Orthopaedically Challenged" category, the petitioner can be accommodated in any one of the said vacant posts. Therefore, the impugned termination order dated 28.12.2018 is liable to be set aside and it is accordingly set aside with a specific finding that the petitioner has not mis-represented the facts while securing employment as a Clerk in the respondent- Bank With the above observations, the Writ Petition is allowed. No order as to costs.
As a sequel, the miscellaneous petitions pending, if any, shall stand closed."
The undisputed facts of the case reveal that under the OC category, out of four posts, only one was filled up and three posts were lying vacant and as in the advertisement it was mentioned that two posts are reserved for ID and others category, the respondent No.1 applied under the ID and others category. As posts were available under the OC category, the learned Single Judge was certainly justified in setting aside the 5 termination order dated 28.12.2018. It is nobody's case that the respondent No.1 has been accommodated against some other category. She is, in fact, OC person and has to be treated as appointed under the OC category. This Court does not find reason to interfere with the order passed by the learned Single Judge.
The writ appeal is accordingly dismissed. The miscellaneous applications pending in this writ appeal, if any, shall stand closed. There shall be no order as to costs.
___________________________ SATISH CHANDRA SHARMA, CJ ___________________________ A.RAJASHEKER REDDY, J 28.10.2021 vs