Delhi High Court

Nishikant Kumar vs Uoi & Anr. on 5 October, 2010

Author: Manmohan Singh

*            HIGH COURT OF DELHI : NEW DELHI

+                     WP (C) No. 4013/2010

Nishikant Kumar                                       ....Petitioner
                      Through:   Mr. Nitesh Kr. Rana, Adv. with
                                 Mr. Wajeeh Shafiq, Adv.

                      Versus

UOI & Anr.                                           .....Respondents
                      Through: Mr. J.C.Seth, Adv. with Mr. Mithun
                               K.S. Rathon, Adv. for R-2.

                                 Judgment pronounced on : 05.10.2010

Coram:
 HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    No

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported            Yes
   in the Digest?

MANMOHAN SINGH, J.

Case of the Petitioner

1. That the petitioner is physically challenged with 45%

disability having medical condition of non-progressive „congenital

torticollis of left part with mild scoliosis‟. Petitioner has excellent

academic records with distinction in B.sc Engineering (electrical) at

an average of 84% and he was the university topper in his 3rd year

of B.sc.

2. On 18-07-2005, the petitioner was examined by „3

Members Medical Board for Handicaps‟ constituted by the Office of

the Civil Surgeon-cum-C.M.O. Patna. The findings of the test were

that petitioner suffered from congenital torticollis of left part with

mild scoliosis falling in the category of locomotor disability of 45%.

3. The petitioner gave a Combined Entrance Competitive

Examination during July-August, 2005. That the petitioner fell in

the category of OBC but secured rank 394 in General Category and

thus got admission in Muzzaffarpur Institute of Technology (MIT) in

Electrical Engineering degree course. On 31-08-2009 the petitioner

received a certificate from MIT certifying that he has passed B.sc.

Engineering (Electrical) Examination 2009 from B.R. Ambedkar

Bihar University in first class with distinction.

4. In September 2009, there was an advertisement given in

several newspapers by the Respondent no.2 inviting applications

for the recruitment for the post of „Engineer Trainee‟. For the said

post as per the advertisement, there was reservation of 30

vacancies for physically challenged candidates having Locomotor

Disability or Hearing Impairment along with category wise

reservation of 184 seats for OBC candidates.

5. This locomotor disability for physically challenged

candidates is defined in „The Persons with Disability (Equal

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

as "disability of the bones, joints or muscles leading to substantial

restriction of the movement of the limbs or any form of cerebral

palsy". But as per the health standards set by Respondent no.2

given on the website www.careers.bhel.in, locomotor disability

means „ minimum 40% of physical defect or deformity which

causes an interference with the normal functioning of the bone,

muscles and joints.‟ Also as per medical examination rules which

were subject to further relaxation to physically challenged

candidates provides that congenital or acquired physical defects if

any noticed will be recorded on the medical examination form with

a clear opinion as to whether it is likely to interfere with the

efficient performance of the duties for which the candidate is under

consideration for employment. Petitioner fulfilled the above stated

criteria and applied under „Physically Challenged‟ category.

6. That the petitioner successfully cleared the exam dated

29-11-2009 conducted by respondent No.2 and also got through

personal interview conducted by 4 board officials on 20-01-2010. A

medical examination of the petitioner was also conducted and his

employment was subject to it. Respondent no.2 by a letter dated

22.02.2010 sent „Provisional Offer of Appointment as Engineer

Trainee‟ to petitioner admiring the petitioner‟s performance in the

selection process. As per the said letter, the petitioner was

supposed to report at Heavy Electrical Equipment Plant, Ranipur,

Haridwar between 16th to 18th march 2010, which was complied on

by the petitioner on the said date and place. However on 27-03-

2010, Respondent no.2 through a letter no.HR-RTX/ET/2010

informed the petitioner that as per the Medical Examination Report

he is not found fit. As per the report his medical condition was

Congenital Torticollis with Scoliosis of Cervicodorsal spines and was

progressive in nature. And thus his appointment is cancelled.

7. On 31-03-2010, the petitioner made an appeal to

Respondent no.2 and applied for re-examination as per the

company rules and paid Rs. 100/- vide a challan under head of A/c

5251903052. However Respondent no.2 issued the same result

without even re-examining the petitioner by a letter dated 15-04-

2010. In April 2010 itself, the Petitioner went to AIIMS for his

medical examination. The specialists there gave the report that his

medical condition was non-progressive in nature.

8. The petitioner contended that he is capable of doing

work and was capable for discharging his duties under the post.

Also there was no such condition mentioned in the advertisement

initially given by the Respondent no.2 stating such cancellation on

the later stage on the basis of progressive nature of the physical

condition. The petitioner alleged that his Fundamental Rights

Guaranteed under Article 14, 16, 19(1) (g), 21 of the Constitution of

India have been violated.

9. Thus, the aggrieved petitioner has filed this Writ Petition

and requested the court to quash the letter dated 27-03-2010 and

letter dated 15-04-2010 issued by Respondent no.2. Petitioner also

requested this court to direct the Respondents to let petitioner join

w.e.f. 16-03-2010 as the „Trainee Engineer‟ for which the petitioner

qualified and was initially appointed for.

Case of the Respondent No.2

10. The respondent No. 2 in its counter affidavit contended

that Union of India is wrongly impleaded as no cause of action

arises in the jurisdiction of Delhi. The respondent No.2 being an

entity registered under Companies Act, is distinct and separate

from Union Of India/respondent no.1.

11. The respondent No. 2 further contended that petitioner

was appointed at the Haridwar Unit and his subsequent

cancellation was done by the Haridwar unit. Thus this Hon‟ble court

does not have any territorial jurisdiction to proceed with this

petition as the cause of action has arisen in Haridwar.

12. According to the Respondent No. 2, the petitioner has

just 15% Locomotor Disability as certified by the Medical Board

comprising of 3 Orthopedic specialists vide their report dated 10-

07-2010, and thus the petitioner is not entitled to claim any benefit

under The Persons with Disabilities (Equal Opportunities, Protection

of Rights and Full Participation) Act, 1995. As per this act, minimum

40% disability is the criteria to be eligible for the benefits of any

concession and petitioner is so not eligible under it.

13. The Medical Report dated 18-07-2005 submitted by the

petitioner relating to 45% disability cannot be considered as this

report is not made by a recognized Medical Authority of Central

Government. Also the report is not made as per the prescribed

form of the Disability act, so it cannot be accepted. For similar

reasons the prescription by AIIMS is irrelevant and there is no

mention of the percentage of Disability of the Petitioner in this

report.

14. As per the Advertisement given by the Respondent no.2,

sound medical condition of the candidates was an important

criterion for their selection. The petitioner is, thus, not liable for the

said post as his score was not enough to qualify him for this post

under General Category.

15. I have heard the rival submissions of the parties. As

mentioned earlier, in the counter affidavit the respondent No.2 has

raised the preliminary objection that this Court has no territorial

jurisdiction to try and entertain the petition and various judgments

were referred to by the learned counsel for the respondent No.2 at

the time of his submissions.

16. However, during the course of hearing, learned counsel

for the petitioner has produced the relevant webpage of the

website of respondent No.2 for the recruitment of Engineer

Trainees and referred clause 7 of General Instructions wherein it

was mentioned that any legal proceedings in respect of any matter

of claim or dispute arising out of this recruitment and/or an

application in response thereto can be instituted only in Delhi and

Courts/Tribunals/Forums at Delhi only shall have sole and exclusive

jurisdiction to try any such cause/dispute.

17. Later on, the learned counsel for the respondent No.2

after taking instructions from his client has given up the objection

of territorial jurisdiction of this Court. In view thereof, it is not

necessary to discuss rival submissions of the parties on the

question of territorial jurisdiction.

On merit, his submission is that the petitioner is not

entitled to get benefit of reservation under the Act. He states that

in view of the order passed by this Court on 3.6.2010, the Medical

Board comprising three Orthopedic Specialists had examined the

case of the petitioner who certified by its report dated 10.7.2010

that the petitioner has only 15% locomotor disability.

18. It is contended that in order to rule out the possibility of

any mistake in assessment of fitness of the petitioner Medical

Board examined him three times. In the earlier report, he was

found unfit on the basis of Medical Report by the Medical Officer as

conveyed to the petitioner vide order dated 27.3.2010. In view of

the order passed by this Court on 3.6.2010, the Haridwar Unit of

respondent No.2 conveyed final decision to the petitioner along

with Medical Board report dated 17.7.2010 that since he has only

15% disability, the petitioner is therefore not covered by the

definition percentage of disability as defined in Section 2(t) of the

Disability Act. The submission of the respondent No.2 is that if

petitioner is not covered by the definition of person with disability

under the Disability Act, he cannot be considered as a person with

disability.

19. It is argued by learned counsel for respondent No.2 that

the old medical report dated 18.7.2005, which shows the category

of petitioner as „moderate‟ and 45% filed by the petitioner, is

unacceptable to the respondent No.2 as it is neither issued in

prescribed form nor by medical authority appointed by the Central

Government which is the Appropriate Govt. for respondent No.2 in

the present case. It is further stated by the learned counsel for the

respondent No.2 that the prescription dated 28.4.2010 issued by

AIIMS is not relevant for the purpose of the present case as it does

not mention percentage of disability of the petitioner.

20. Per contra, the submission of the learned counsel for the

petitioner is that the present writ petition has been filed to

challenge the letter dated 27.3.2010 whereby the offer of

appointment was cancelled for the reason that the disease of the

petitioner is progressive and there is a possibility of further

deterioration of his physical health with the passage of time. The

respondent No.2, therefore, cannot rely upon the certificate of

Medical Report dated 10.7.2010 which declared that he has only

15% locomotor disability.

21. The contention of the learned counsel is that in fact the

respondent No.2 has taken completely different stand after

examination of the fitness of the petitioner by the Medial Board in

view of the order dated 3.6.2010 passed by the Court and hence,

the said report is without any substance. In support of his

submission, he has strongly relied upon the Medical Board report

dated 18.7.2005 filed by the petitioner along with the writ petition

wherein the certificate has been issued by three specialists from

the State of Bihar declaring that the disability of the petitioner is

45% and is moderate. Thus, as per his submission, his case is

covered by the definition of person with disability as defined in

Section 2(t) of Disability Act, hence, he is entitled for the said

benefit.

22. Learned counsel for the petitioner in support of his

submissions has also referred to the DB judgment of this Court in

the case of Social Jurist, A Lawyers Group Vs. Union of India

(UOI) and Anr. passed in CWP No.1283/2002 decided on

13.8.2002. Paras 6 and 8 of the same read as under:

"6. Unless the mindset of the public changes; unless the attitude of the persons and officials who are given the duty of implementation of this Act changes, whatever rights are granted to the disabled under the Act, would remain on paper.

8. Section 2(p) of the aforesaid Act defines „Medical Authority‟ which is to be specified by a Notification to be issued by the appropriate Government for the purpose of this Act. It has to be any hospital or any institution. It is this „Medical Authority‟ which is competent to issue certificates to persons with disability specifying the extent of disability being suffered by such persons. Unless such a medical is so specified which is competent to issue a certificate and unless such a certificate is provided to a disabled person he would not be in a position to claim various benefits provided under the Act. However, for last more than six years, this did not occur to the authorities that the basic requirement is to specify such medical authorities by means of a Notification to enable the disabled persons to obtain certificates and then file avail the benefits of the same. This problem was brought to this court by means of present writ petition."

23. The Parliament of India has enacted The Persons with

Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995 (Act 1 of 1996) wherein disability has been

defined in the following term:-

"2(i) „disability‟ means -

(i) blindness;

(ii) low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability;

(vi) mental retardation;

(vii) mental illness;"

23.1 The „locomotor disability‟ has been defined in Section

2(o) of the Act, thus:-

"2(o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy."

23.2 In terms of clause (i) of Article 16 of the Constitution of

India, the State is entitled to make reservations for physically

handicapped persons. Admittedly, 1% of the posts/services were

reserved for the Orthopedically handicapped. Each category of

disability had been divided into four groups in the following

manner:

(a) Mild: less than 40%

(b) Moderate : 40% and above;

(c) Severe: 75% and above;

(d) Profound/total: 100%

23.3 As per Office Memorandum dated 4.6.1998, the following

are the clauses:

"3. According to the instructions contained in the Ministry of Welfare‟s Notification No.4/2/83HW-III dated 6.8.1986, various concessions/benefits, including employment under the Central Government, are available only to those falling under the categories mentioned at (b), (c) and (d) in the preceding paragraph. The minimum degree of disability has also been prescribed as 40% in order for a person to be eligible for any concessions/benefits.

24. The following are the categories of persons with

disabilities for the purpose of getting the benefit of 3% reservation

in posts/services under the Central Government as indicated in

Section 33 of the Persons with Disabilities (Casual Opportunities,

Protection of Rights and Full participation) Act, 1995:

            (i)       Blindness or low vision;
            (ii)      Hearing impairment;
            (iii)     Locomotor disability or cerebral palsy;

25. Each category of disability as mentioned in para 24

above would continue to be divided in to four groups as mentioned

in para 2 of this letter. Further, various concessions/benefits,

including employment under the Central Government, would

continue to be available only to those falling under the categories

given at (b), (c) and (d) of the aforesaid paragraph. The minimum

degree of disability in order for a person to be eligible for any

concessions/benefits would continue to be 40%."

26. In view of the fact that the petitioner herein if fulfill the

aforementioned criteria of his disability of locomotor in the

category of moderate i.e. 40% and above and is covered within

the four corner of the terms and conditions for the recruitment for

the post of „Engineer Trainee‟ as per the advertisement in the

newspaper then his appointment has to be considered under these

circumstances. However, since the reservation for handicapped

person is made in terms of clause (1) of Article 16 of the

Constitution of India, the policy decision adopted by the State must

be strictly adhered to. Therefore, the respondent, as per law, can

insist upon that the disability must be to the extent of 40% and

above before the appointment of the petitioner.

27. It is also necessary to refer to Section 2 (a) of the Act in

order to consider the rival submissions of the parties:

2.(a) "appropriate Government" means,--

(i) in relation to the Central Government or any establishment wholly or substantially financed by that

Government, or a Cantonment Board constituted under the Cantonment Act, 1924 (2 of 1924), the Central Government;

(ii) in relation to a State Government or any establishment wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board, the State Government;

(iii) in respect of the Central Co-ordination Committee and the Central Executive Committee, the Central Government;

(iv) in respect of the State Co-ordination Committee and the State Executive Committee, the State Government;

28. In order to understand the case in hand, the relevant

portion of the advertisement for the recruitment of the post in

question reads as under:

"Applicants should have sound health. Before joining, selected candidates will have to undergo medical examination by the Company‟s Authorised Medical Officer and the appointment will be subject to meeting the health standards prescribed by the Company. (BHEL‟s medical Examination Rules)"

29. Upon considering the facts and documents produced by

the parties, it is clear that there are two reports before the Court.

The first one is the report dated 18.07.2005 filed by the petitioner

which indicates the disability of the petitioner as 45% and the

second medical report dated 10.7.2010 produced by respondent

No.2 certified by the Medical Board comprising of three Orthopedic

Specialists of respondent No.2 indicates that the petitioner has

only 15% locomotor disability. If this Court strictly goes by the

terms of recruitment of the posts as appeared in the newspapers

which provides that before joining, selected candidates will have to

undergo medical examination by the company‟s authorised Medical

Officer and the appointment will be subject to meeting the health

standards prescribed by the company. In case the medical report

of the petitioner is accepted, then the writ petition is to be allowed.

But the fact remains that medical report dated 18.07.2005

produced by the petitioner has been issued by the Bihar

Government and as per clause 1 of the notification issued by the

Department of Social Welfare, the same extends to the State of

Bihar. Thus, there is force in the submission made by respondent

No.2 that the report of the Medical Authority appointed by the

Central Government to be accepted and the Appropriate

Government is defined in Section 2(a) of the Act. In the case of

D.S. Rashmi Ranjan Vs. Chairman, Joint Entrance

Examination & Ors. 97 (2004) CLT 264 the court held as

follows :

"8. The information brochure itself made it clear that a candidate claiming benefits of reservation under physically handicapped category must meet the medical standard and at the time of admission has to satisfy the Board consisting of four medical doctors and Chairman, J.E.E. or his representative that they are eligible to be categorised as physically handicapped and so also capable of undergoing each part of the requirements of the course and the decision of the Board in this respect is final. Under Rule 4(2) of the Act" the person with disability (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996, the State Government is authorised to constitute a Medical Board consisting of at least three members out of which at least one shall be a specialist, in the particular field for assessing locomotor/visual including low vision/hearing and speech disability, mental retardation and leprosy cured, as the case may be.

9. In the case at hand, the petitioner claims 'to be a physically handicapped person having suffered locomotor disability. The Board consisting of four doctors including the orthopaedic Specialist and the Chairman, J.E.E., on examination of the petitioner, found him to have 20% disability as against 40% required under the Act in order to be eligible for consideration under the reserve category.

10. In such view of the matter, we do not find any merit in the contention of the petitioner that he has been illegally deprived of getting the benefit of reservation under the physically handicapped category

for admission to the Medical Course to interfere in the findings recorded by the Expert Body and direct the Opp. party to treat him as a physically handicapped person."

30. In the case of Shiv Kumar Singh Yadav Vs. State of

UP and Ors. referred by the respondent No.2, the judgment

delivered by Allahabad High Court in C.M.W.P. No.51515/1999, it

was held in paras 7 to 10 which are relevant to the present case

and the same reads as under :

"7. We have bestowed our anxious thoughts to the questions involved in the case. A person suffering from locomotor disability and cerebral palsy comes within the purview of the 'physically handicapped" within the meaning of Section 2 (e) of the Act. The locomotor disability as nailed down in clause (ddd) of Section 2 means disability of the bones, joints or muscles 'leading to substantial restriction on the movement of the limbs or any form of cerebral palsy'. The medical evidence In the instant case, clearly evinces that 20% locomotor disability of the petitioner 'will lead to substantial restriction on the movement of limbs'. In view of the medical evidence, therefore, the petitioner satisfies the test of being a 'physically handicapped' person within the meaning of the Act. The Government Order No. 464/65-2-2000-178/2000 dated September 30, 2000 issued by the Government of Uttar Pradesh read with notification No. 4-2/83-H.W. III Government of India, Ministry of Welfare dated 6th August, 1986, have no application inasmuch as the G.O. dated September 30, 2000 has been made applicable only in relation to benefits under the projects concerning the six 'Niyamawalian' (Rules) enumerated therein. None of the six 'Niyamawalian' cover the case of reservation at the stage of direct recruitment in public service and posts as provided in Section 3 (1) of the U. P. Act 4 of 1993. In the absence of any amendment in the Act, the Government order aforestated cannot exclude the petitioner from taking benefit of the Act No. 4 of 1993 merely because the locomotor disability he is suffering from, is only to the extent of 20% and not 40% as per standard of disability prescribed under the Government orders referred to above.

8. It was then submitted by the learned standing counsel that even if the Government order aforestated is ignored, the petitioner would still not be entitled to be selected under the quota reserved for physically handicapped persons under the U. P. Act 4 of 1993 in

view of the provisions contained in Central Act known as "The Persons with Disabilities (Equal Opportunities. Protection of Rights and Full Participation) Act, 1995. In the Central Act, the expression "person with disability" has been defined to mean "person suffering from not less than forty per cent of any disability as certified by a medical authority". The word 'disability' according to Section 2(i) of the Central Act means :

(i) blindness :

(ii) xx xx

(iii) xx xx

(iv) xx xx

(v) Locomotor disability ;

(vi) xx xx

(vii) xx xx

The word "locomotor disability according to Section 2(o) of the Central Act, means disability of the bones. Joints or muscles leading to substantial restriction of the movement of limbs or any form of cerebral palsy.

9. Section 32 of the aforesaid Central Act provides that appropriate Government shall :

(a) identify posts, in the establishments, which can be reserved for the persons with disability :

(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.

Section 33 of the Central Act provides that every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one percent each shall be reserved for persons suffering from :

(i) blindness or low vision ;

(ii) hearing impairment ;

(iii) locomotor disability or cerebral palsy ; in the posts identified for each disability.

10. Section 3 (1) of the State Act No. 3 of 1994 as it stands amended by the U. P. Act No. 6 of 1997 envisages that there shall be reserved at the stage of direct recruitment, in such public services and posts as State Government may, by notification identify, one percentage of vacancy each for the person suffering from (a) blindness or low vision, (b) hearing impairment ; and (c) locornotor disability of cerebral palsy. Locomotor disability as defined in Section 2 (ddd) of the State Act and Section 2(o) of the Central Act, means

disability of bones. Joints, or muscles leading to substantial restriction of the movement of limbs or any form of cerebral palsy. But unlike the provisions contained in Section 2(e) of the Central Act, the State Act by itself does not define 'person with disability' to mean a person suffering from not less than 40% of any disability as certified by medical authority. Rather, the State Act has used the term 'physically handicapped' to mean a person who suffers from blindness or low vision ; hearing impairment and locomotor disability or cerebral palsy irrespective of whether such disability is 40°/' or less than 40%. Thus, there is a conflict between the term 'physically handicapped' as used in the State Act and expression 'person with disability' as defined in the Central Act. Both the Acts are covered by Entry No. 23 of List III. The question is as to whether the Central Act will have precedence over the State Act. Article 254(1) of the Constitution envisages that "if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void." It is thus evident that in the event of conflict between the law made by the Legislature of a State and law made by the Parliament, the latter will prevail subject, of course, to the provisions of clause (2) of Article 254 of the Constitution. Clause (2) of Article 254 gives predominance, in the event of any repugnancy to the law made by the Legislature of the State in respect to one of the matters enumerated in the Concurrent List provided that law so made by the Legislature of the State "has been reserved for the consideration of the President and has received his assent". The State Act in the instant case does not appear to have been reserved for the consideration of President. Question of the same being assented by the President does not arise. The Act was assented to by the Governor on December 29, 1993. In such view of the matter, clause (2) of Article 254 of the Constitution is not attracted for application and, therefore, as provided under Article 254(1), the law made by the Parliament will prevail to the extent of repugnancy. The petitioner is not entitled to be treated as a physically handicapped candidate for the purposes of the Act in view of the fact that his disability is less than 40%.

32. Hence, the medical report issued by the Bihar Govt.

dated 18.7.2005 would not give the benefit to the petitioner for

appointment to the post. As per the requirement of the policy

decision, it has to strictly adhere to, otherwise, the rights of others

would be affected.

33. Under these circumstances, I am of the considered view

that in the light of the two medical reports filed by the parties

which are contrary to each other. It is a fit case that the disability

of the petitioner be assessed by another Medical Authority other

than the Medical Board of respondent No.2. In order to comply with

the terms of the recruitment of the post, he has to fulfill the

required criteria. His medical report issued by the office of Civil