Delhi High Court
Deshraj vs Upsc & Anr. on 13 July, 2016
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Dated: 13th July, 2016
+ W.P.(C) 7984/2015 & CM.APPL 16211/2015(stay)
DESHRAJ ..... Petitioner
Through Mr. S.K. Rungta, Senior Advocate
with Mr. Prashant Singh, Advocate
versus
UPSC & ANR. ..... Respondents
Through Mr. Naresh Kaushik with
Ms. Jyomoti Mize, Advocates for
respondent no.1.
Mr. Santosh Kumar Tripathi, ASC for
GNCTD/respondent no.2.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S. MEHTA
G.S.SISTANI, J (ORAL)
1. With the consent of the parties, the writ petition is taken up for final
hearing and disposal.
2. Challenge in this writ petition is to the order passed by the Central
Administrative Tribunal (hereinafter referred to for short as „the
Tribunal‟) dated 21.07.2015.
3. Necessary facts to be noticed for disposal of this writ petition are that
the petitioner was employed as a Medical Officer on contractual basis
with the respondent no.2 under NRHM Scheme (North East Zone) in
the year 2010. On 04.07.2012, the petitioner resigned from the said
zone as he was offered appointment under the same Scheme in East
Zone by the same respondent and consequently, he joined the East
Zone. On 13.07.2013, respondent no.1 issued an advertisement
notifying various vacancies to be applied on line for different
Departments, including 679 posts of Medical Officers (general duty
Medical Officer, sub-cadre) for recruitment in respondent no.2;
reserving 36 posts for orthopaedically handicapped/locomotor
disability/cerebral palsly by doing a further classification within the
said category of disability of orthopaedic disability/locomotor disability
or cerebral palsy. On 26.07.2013, the applicant, petitioner herein,
claiming himself to be eligible, applied on line but his form was
returned on the ground "PH CATEGORY: BOTH LEGS AFFECTED
BUT NOR ARM, PH SUBCATEGORY: ORTHOPAEDICALLY
HANDICAPPED OR LOCOMOTOR DISABILITY OR CEREBRAL
PALSY, PERCENTAGE-50%.."
4. Aggrieved by the act of the respondents rejecting his application, the
petitioner approached the Tribunal on 28.07.2013. By an interim order
on 30.07.2013, the petitioner was permitted to submit offline
application and to appear in the selection test provisionally. When the
OA was heard finally, the same was dismissed by an order dated
21.07.2015, which has led to the filing of the present writ petition.
5. Mr. Rungta, learned Senior Counsel appearing for the petitioner
submits that there is error apparent on the face of the judgment passed
by the Tribunal. It is contended that the OA filed by the petitioner
stands dismissed on the ground that the petitioner did not challenge the
advertisement issued by the UPSC and while relying on the judgment in
the case of Dhananjay Malik and Others v. State of Uttaranchal and
Others, reported at AIR 2008 SC 1913, the Tribunal dismissed the OA
on the ground that the petitioner had participated in the process of
selection and having been unsuccessful he cannot challenge the same.
Mr. Rungta submits that the petitioner had challenged the advertisement
which is evident from the fact that the petitioner appeared in the
examination pursuant to the interim orders passed by the Tribunal dated
30.07.2013 and thus, the learned Tribunal fell in grave error by
dismissing the OA on this ground. Another ground on which the OA
has been dismissed is that the petitioner did not challenge the
Notification issued by the Ministry of Social Justice and Empowerment
which was accepted by the Government of India, therefore, the
respondent no.1 could not have been faulted for providing the sub-
classification since the same is based on the Notification of the Ministry
of Social Justice and Empowerment. Mr. Rungta contends that this
Notification of the Government of India was notified subsequent to the
advertisement, i.e. 29.07.2013, and post filing of the OA which fact has
also not been considered by the Tribunal. Mr. Rungta submits that the
Tribunal lost track of this important aspect. Mr. Rungta also submits
that the Tribunal has failed to consider that the petitioner is, in fact,
working on the same post with respondent no.2 on contract basis since
2010 which would prove that a person with disability in both legs is
competent to work at the post which had been advertised and the
subsequent Notification of the Central Government is misplaced and
against the very objective and principle laid down under the Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995.
6. At this stage, it is agreed by counsel for the parties that the impugned
order of the Tribunal be set aside and the matter be remanded back to
the Tribunal for fresh hearing based on the pleadings already on record.
7. For the reasons stated above and having regard to the fact that the
petitioner challenged the advertisement and participated only on the
basis of an interim order, thus, it cannot be said that since the petitioner
participated in the process of selection, the OA would be misplaced.
We also direct the Tribunal to take into account the fact that the
Notification of the Central Government was issued post the
advertisement and after the filing of the OA. The Tribunal would
consider the effect thereof as it cannot be said that the respondent was
guided by the Notification on the question of the suitability of a person
with disability to the post in question.
8. Resultantly, the writ petition is allowed. The impugned order dated
21.07.2015 is quashed. The matter is remanded back to the Central
Administrative Tribunal for fresh hearing.
9. Parties to appear before the Tribunal on 01.08.2016.
CM.APPL 16211/2015(stay)
10. As agreed, the interim order granted in favour of the petitioner will
continue till the disposal of the OA.
11. The application is disposed of accordingly.
G.S.SISTANI, J
I.S. MEHTA, J
JULY 13, 2016
pst
