Secretary (Education) & Ors. vs Mr. Mukesh Chand & Anr.
2008 Latest Caselaw 1717 Del

                                                REPORTABLE
*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Date of Decision : September 23, 2008


+                          WP(C) No.2869 of 2003

#      SECRETARY (EDUCATION) & ORS.                  Petitioners

!                     Through : Ms. Avnish Ahlawat with Ms. Latika
                                Chaudhary & Ms. Nidhi Gupta,
                                Advocates.

                               Versus

$      MR. MUKESH CHAND & ANR.                       Respondents

^                     Through : Mr P.P. Khurana, Sr. Advocate with
                                Mr. Sachin Sood, Advocate.


CORAM :

HON'BLE MR. JUSTICE S.N. AGGARWAL

    1. Whether reporters of Local paper may be allowed to see the
       judgment?
    2. To be referred to the reporter or not?
    3. Whether the judgment should be reported in the Digest?

S.N. Aggarwal, J.

Here is a meritorious disabled person (respondent No. 1

herein) suffering from the problem of progressive low vision

(Retenitis Pigmentosa). He being unaware of his disability opted to

compete with general category candidates and topped the list of

successful candidates in the examination held by the Delhi

Subordinate Staff Selection Board (in short 'DSSSB') for recruitment

to the post of TGT (Language Teacher) in 1999. He was appointed to

the post of TGT (Hindi) in Government Boys Senior Secondary

School, Rana Pratap Bagh, Delhi on temporary and provisional basis

subject to his being declared medically fit by the competent

authority and verification of his character antecedents within two

months of his said provisional appointment. Respondent No. 1

appeared before the Medical Board on 03.11.1999 and was declared

medically unfit as at the time of his medical examination he was

found to be suffering from Retenitis Pigmentosa (eye problem). His

services were terminated w.e.f. 15.12.2000 as he was found

medically unfit by the Medical Board. Respondent No. 1 made

several representations to the concerned authorities against his

termination and on his representations, the matter was referred by

the Director of Education for re-examination of respondent No. 1 by

another Medical Board of LNJP Hospital. He appeared before the

Medical Board of LNJP Hospital on 23.01.2001 but there also he was

declared medically unfit found suffering from the same eye problem

as detected by the earlier Medical Board. He, thereafter, filed a

complaint under Section 59 of The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995

(hereinafter to be referred as the 'Act') before the Chief

Commissioner, Disabilities. The Chief Commissioner after hearing

both the parties on the complaint of respondent No. 1 passed the

impugned order on 16.10.2002 and directed the Secretary

(Education), Department of Education, Government of NCT of Delhi

to get respondent No. 1 examined from a fresh Medical Board to be

constituted within 30 days making it clear to the Board that visual

impairment is not a disqualification for the post of teacher. The Chief

Commissioner, Disabilities vide impugned order also directed the

Secretary (Education) to revoke the termination of respondent No. 1

in case the Medical Board declares him otherwise fit for the job of

teacher and re-appoint him as TGT either against the general or the

physically handicapped quota within 15 days from the receipt of

report from the Medical Board. The petitioners being the concerned

appointing authorities of respondent No. 1 feeling themselves

aggrieved by the above referred order of the Chief Commissioner,

Disabilities have filed the present writ petition seeking quashing of

the impugned order dated 16.10.2002 passed by the Chief

Commissioner for Persons with Disabilities in complaint case No.

711/2001.

2 The impugned order dated 16.10.2002 passed by the Chief

Commissioner, for Persons With Disabilities was stayed by this Court

vide order passed on 13.04.2003 and the said interim order passed

on that day is continuing till date.

3 In response to notice of this writ petition, Mr. Khurana, learned

senior counsel appearing on behalf of respondent No. 1 made a

statement before the Court on 28.01.2004 that he does not wish to

file any counter affidavit as only a legal issue arises in this case. As

such there is no counter affidavit in the matter on behalf of

respondent No. 1 who is the only contesting respondent in the case.

Respondent No. 2 being the Chief Commissioner, Disabilities is only

a proforma respondent.

4 Ms. Avnish Ahlawat, learned counsel appearing on behalf of the

petitioners had argued that the Chief Commissioner, Disabilities

before whom the complaint under Section 59 was filed by

respondent No. 1 was not competent to go into the question of his

termination. According to the learned counsel, the appropriate

remedy for respondent No. 1 to challenge his termination was by

filing an application before the Central Administrative Tribunal as he

was an employee of Government of NCT of Delhi. It was further

contended by Ms. Ahlawat that respondent No. 1 had applied for his

appointment to the post of TGT (Hindi) under the general category

and therefore according to her, he cannot claim the benefits of relax

medical standards available to the disabled persons appointed

against vacancies reserved for physically handicapped persons. It

was submitted that only those disabled persons who are appointed

against vacancies reserved for them under the Rules can file

complaint with regard to deprivation of their right, if any, before the

authorities under the Act. Learned counsel appearing on behalf of

the petitioners had also argued that medical standards for general

candidates and for persons belonging to the disabled category are

different and a person appointed against general seat cannot claim

benefits available to the disabled persons. It was strongly contended

that the impugned order passed by the Chief Commissioner,

Disabilities is without jurisdiction and should be declared a nullity.

5 On the other hand, Mr. P.P. Khurana, learned senior counsel

appearing on behalf of respondent No. 1 had argued that the

Government itself has recognised that people with low vision can be

appointed as teachers in Government schools. Mr. Khurana had

further argued that the posts of teacher in Government schools fall

under the recognised category that can be filled from the people

with low vision/blinds. The contention of Mr. Khurana was that in

case respondent No. 1 had opted to compete along with the general

candidates, he could not have been disqualified and terminated

from service merely because he was found to be suffering from

problem of progressive low vision (Retenitis Pigmentosa) at the time

of his medical examination. Mr. Khurana had referred to the

provisions contained in Section 62 of the Act to contend that the

Chief Commissioner was well within its right to look into the

complaint of respondent No. 1 with regard to deprivation of his right

to continue in the employment of the petitioners as TGT (Hindi)

because he falls in the category of disabled persons. According to

Mr. Khurana, there is no error in the impugned order of the Chief

Commissioner, Disabilities and therefore he has prayed for the

dismissal of the present writ petition.

6 I have carefully considered the above rival arguments

advanced by the learned counsel for the parties and have also gone

through the entire case file.

7 The question that arises for consideration in this matter is

whether the Chief Commissioner, Disabilities under the Act is

competent to go into the complaint filed by respondent No. 1 before

it in regard to the termination of his services on his being found

medically unfit.

8 It is an admitted case of both the parties that respondent No. 1

had applied for his appointment to the post of TGT (Hindi) as a

general candidate. It is further not disputed that he had stood first

position in the examination held by the DSSSB for recruitment to the

post of TGT in Government school in 1999. This shows that

respondent No. 1 is a brilliant meritorious person. It is also an

admitted fact that respondent No. 1 was declared medically unfit

because he was found suffering from eye problem described as

'Retenitis Pigmentosa'. He was examined not by one Medical Board

but by three different Medical Boards. The first Medical Board was

held in Babu Jag Jiwan Ram Hospital, second in LNJP Hospital and

third in Guru Nanak Eye Centre. All the three Medical Boards found

him suffering from the same eye disease i.e. Retenitis Pigmentosa

which the Medical Board of Guru Nanak Eye Centre has explained it

as a problem of progressive low vision. This is a fact which is

admitted by both the parties. Section 2(i) of the Act defines as to

what is disability and according to the definition of disability given

under Section 2 (i), disability includes blinds and low vision also.

Section 2(t) and Section 2(u) are also relevant and they are

reproduced herein below:-

"2 (t) 'person with disability' means a person suffering from not less than forty per cent of any disability as certified by a medical authority.

2 (u) 'person with low vision' means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device."

9 In view of definition of expressions viz 'disability', 'person with

disability' and 'person with low vision' given in Sections 2(i), 2(t) &

2(u), respondent No. 1 falls in the category of disabled persons. The

provisions of Disabilities Act, therefore, applies to respondent No. 1.

10 Section 47 of the Act provides that no establishment shall

dispense with or reduce in rank an employee who acquires a

disability during his service. According to the proviso to Section 47,

if an employee, after acquiring disability is not suitable for the post

he was holding, could be shifted to some other post with the same

pay scale and service benefits. In the present case, respondent No.

1 was provisionally appointed to the post of TGT (Hindi) on

29.11.1999 and his services were terminated w.e.f. 15.12.2000 as

he was found medically unfit, suffering from an eye problem which

makes him a disabled person within the meaning of the Act.

11 Section 62 of the Act referred and relied upon by Mr. Khurana,

learned senior counsel appearing on behalf of respondent No. 1 is

extracted below:-

"Commissioner to look into complaints with respect to matters relating to deprivation of

rights of persons with disabilities.- Without prejudice to the provisions of section 61, the Commissioner may of his own motion or on the application of any aggrieved person or otherwise look into complaints with respect to matters relating to-

(a) deprivation of rights of persons with disabilities;

(b) non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Governments and the local authorities for the welfare the protection of rights of persons with disabilities;

and take up the matter with appropriate authorities.

12 The similar powers as are given to the Commissioner in

Section 62 are available to the Chief Commissioner under Section 59

of the Act. It is evident on a perusal of Sections 59 & 62 of the Act

that the Chief Commissioner is well within its rights to look into the

complaint of respondent No. 1 with regard to his termination from

the service because the impugned termination amounts to

deprivation of his right to continue in the Government service. I do

not find any merit in the contention urged on behalf of the

petitioners that the appropriate remedy against the impugned

termination available to respondent No. 1 was by approaching the

Central Administrative Tribunal. It was for the aggrieved employee

to decide which forum he want to approach for redressal of his

grievance. Both the forums were available to respondent No. 1. He

could file the complaint with regard to termination of his service

either before the concerned authorities under the Disabilities Act or

he could also file an application before the Central Administrative

Tribunal. I am of the considered view that the impugned order of the

Chief Commissioner by no means can be said to be without

jurisdiction.

13 I also do not find any merit in the argument advanced on

behalf of the petitioners that only the persons appointed against the

posts reserved for disabled persons can get the concession of

relaxed medical norms. Such concessions, in the opinion of this

Court, cannot be denied to those disabled persons who chose to

compete against general seats. If it is denied, then it will restrict the

entry of disabled persons in Government service only to the extent

of 3% posts reserved for them in terms of Section 33 of the Act

though more than 3% meritorious persons with disabilities are

available for appointment. In case a disabled person proves his

worth by competing with general candidates then the only thing the

Government should see is to see his suitability to a particular post in

the light of disability from which he is suffering. This will ensure

equal opportunity and participation to the disabled persons in

Government jobs and would be in line with the fundamental rights

guaranteed to every citizen under Articles 14 & 16 of the

Constitution of India.

14 In the present case, the respondent No.1 has proved his merit

by topping the list of successful candidates in the examination held

by the DSSSB for the post of TGT (Language Teacher). What sin has

he committed by competing with the general candidates? Should he

be punished by maintaining his impugned termination only because

he is suffering from some eye problem which is not a disqualification

for appointment to the post of teachers in Government schools? The

answer to this, obviously, cannot be anything but a simple 'No'. It

may be noted that respondent No. 1 had taken the written

examination held by the DSSSB without any external aid provided to

him by the Government authorities or by anybody else but still he

topped the list of successful candidates. The eye problem of

respondent No. 1 should not come in his way for his appointment to

the post of TGT (Hindi). In the opinion of this Court, directions given

by the Chief Commissioner, Disabilities in the impugned order are

quite innocuous in as much as it has only directed the petitioners to

get respondent No. 1 re-examined from a fresh Medical Board

making it clear to the Board that his eye problem should not

influence his medical fitness and to revoke the impugned

termination, if he is otherwise found medically fit. No fault can be

found with such a direction contained in the impugned order.

15 In view of the above, I do not find any merit in this writ petition

which fails and is hereby dismissed with directions to the petitioners

to get respondent No. 1 re-examined from a fresh Medical Board to

be constituted in Guru Nanak Eye Centre within four weeks from

today and to reinstate him in service within 15 days of the receipt of

the fresh medical report with all consequential benefits of continuity

of service, seniority, etc in case he is otherwise found medically fit.

However, he shall not be entitled to back wages till the date of his

reinstatement on the principle of 'No work, no pay'. The parties are

left to bear their own costs.

September 23, 2008                        S.N.AGGARWAL
'A'                                            [JUDGE]