Jharkhand High Court

Yogendra Sawaiyan vs Union Of India on 5 May, 2022

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        W.P.(S) No. 1787 of 2020

           Yogendra Sawaiyan, Son of Late Kanuram Sawaiyan, aged about
           46 years, Resident of Vill.-Purnia, P.O. Chitimiti, P.S. Manjhari,
           Dist-Singhbhum (West) Pin - 833201
                                                    ......

Petitioner/Applicant Versus

1. Union of India, through the General Manager, South Eastern Railway, P.O. +P.S. West Port Garden Reach-43

2. Divisional Railway Manager (P) S.E. Railway, Chakradharpur P.O. +P.S.-Chakradharpur Division, Dist.-Singhbhum (West), Pin-833102

3. Sr. Divisional Personnel Officer, S.E. Railway, CKP Division, Chakradharpur, P.O. +P.S.-Chakradharpur, Dist.-Singhbhum (West), Pin-833102

4. Asstt. Personnel Officer, S.E. Railway, CKP Division, Chakradharpur, P.O.+P.S.-Chakradharpur, Dist-Singhbhum (West), Pin-833102

5. State Disability Commissioner (Under the person with Disabilities) Project Building, P.O. +P.S. Dhurwa, Jharkhand State, Ranchi 834002.

...... Respondents

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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan

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For the Petitioner : Ms. M.M. Pal, Sr. Adv.

For the Respondent : Mr. Prashant Pallav, A.S.G.I.

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10/05.05.2022 Per, Deepak Roshan, J. Heard learned counsel for the parties.

2. The instant application has been preferred challenging the order dated 18.10.2019 passed by the learned Central Administrative Tribunal, Patna Bench, Patna, Circuit Bench at Ranchi in OA/051/00141/2019 dated 18.10.2019 whereby the application filed by the petitioner against the rejection order dated 01.11.2018 by which the request of the petitioner for grant of compassionate appointment under visually handicapped quota on the basis of disability certificate issued by the District Level Medical Board was rejected.

3. The brief facts of the case is that the Divisional Railway Manager (P) had issued an employment notice on 10.02.1999 inviting applications from physically handicapped persons to fill up 44 Group 'D' vacancies against physically handicapped quota of Chakardharpur Division in South Eastern Railway, subject to fulfilling of terms and conditions stipulated therein.

There were three categories, i.e. (i) Visually handicapped

(ii) Orthopedically Handicapped (iii) Hearing handicapped and out of 44 vacancies, 14 posts were reserved for recruitment of hearing handicapped persons.

In the said notification dated 10.02.1999, two main grounds amongst others were as follows:

(a) Medical certificate in support of physical handicapped should be issued by the Civil Surgeon of the District in appropriate proforma.

(b) Selection of candidate will not give any guarantee for employment which is further subject to his or her passing the prescribed medical examination for the post and/or otherwise suitable for the post.

In response to the aforesaid Employment Notice dated 10.02.1999, the petitioner appeared and filed his application on 26.03.1999. Thereafter, the petitioner along with others were called for to appear in the Viva Voice test held on 12.12.2000. On the basis of selection held a provisional panel was prepared by the Selection Committee of physically handicapped persons, including visually handicapped, against the 3% quota reserved for physically handicapped persons.

The petitioner was provisionally empaneled against the visually handicapped quota and subsequently offer of appointment was issued. At this stage, it is pertinent to mention here that in the panel dated 09.01.2001 it has been specifically mentioned that the above empanelment is provisional and subject to verification of their academic certificates and also the employment is subject to their passing prescribed medical examination. Though, the petitioner was empaneled, however, during verification of the medical certificate issued by the Civil Surgeon it was noticed that orthopedic disability is shown as 35-40% and visual disability as 20-30% only whereas the rule prescribed visual disability of 40% for recruitment under that quota which the petitioner did not possess. As such, his candidature was not considered and he was not given appointment.

After a long gap of more than 15 years petitioner knocked the door of Central Administrative Tribunal praying for a direction to consider the representation made by him to consider his case for appointment under the physically handicapped category as has been

granted to other similarly situated candidates. The said OA /051/00164/2018 was disposed of with a direction to consider the representation of the petitioner. Subsequently, the petitioner filed representation, which was rejected vide order dated 01.11.2018. The petitioner challenged the said rejection order in the second O.A. being OA/051/00141/2019. However, the same was dismissed by the learned tribunal which is under challenge before this court.

4. Ms. M. M. Pal, learned Senior Counsel for the petitioner submits that the impugned order passed by the learned tribunal is illegal, improper and invalid and the same has been passed without considering the proposition of law as also without considering the direction of learned C.A.T. in Paragraph No. 94 of the judgment dated 10.03.2011 passed in O.A. No. 263 of 2009 which has also been quoted in paragraph 4 of the impugned order. The tribunal should have considered that the rejection order passed by the G.M. dated 01.11.2018 is illegal and suffers from discrimination and is also against the direction passed by the tribunal in the earlier application filed by the similarly situated persons.

Learned Sr. counsel further submitted that the disability certificate dated 30.05.2017 issued by the District Level Medical Board duly constituted by the statute is enforceable throughout India and none other is competent to determine disability of the petitioner.

She further contended that the respondents were duty bound to give employment on the basis of subsequent disability certificate of 2017 issued by the duly constituted Medical Board. She further contended that the benefit of employment given to other similarly situated persons has been given on the basis of their respective recent disability certificate issued by the District Level Medical Board, which was constituted in terms of Para 94 of the judgment passed in O.A. No. 263/09 which was further reproduced in O.A. No. 280 of 2012 and O.A. No. 194/2016. Admittedly, several similarly situated persons from the same panel, who were also not appointed and had moved before the learned tribunal for redressal of their grievance, have been given appointment pursuant to their subsequent certificates and the case of the petitioner squarely fits in with the similarly situated persons who are working in the department. The action of the respondent Railways is highly discriminatory and it is an example

of pick and choose and colorable exercise of power. She concluded her argument by submitting that the learned tribunal should have considered all these aspects of the matter and should have quashed the impugned rejection order passed by the department.

5. Mr. Prashant Pallav, learned ASGI appearing for the respondents reiterated the stand made in the counter affidavit and submits that in Clause 10 (C) (i) of Employment Notice dated 10.02.1999, it was categorically mentioned that selection of a candidate is subject to his passing the prescribed medical examination. However, during the verification of the medical certificate issued by the Civil Surgeon, Chaibasa, it was noticed that orthopedically the petitioner's disability was shown to be 35 -40% and visual disability was shown as 20-30% only and as per the rule for recruitment against visually handicapped quota, 40% disability is required which the petitioner did not possess and accordingly, his candidature was not considered.

Mr. Pallav draws attention of this court towards Annexure C to the counter affidavit showing the disability certificate which was dated 01.10.1993. He further submits that after the rejection order the petitioner sat over the matter and finally knocked the door of the learned tribunal in the year 2018 by filing the original application being O.A. No. 164 of 2018. The respondent department, pursuant to the aforesaid order passed by the learned tribunal, considered the case of the petitioner and rejected his claim for appointment vide order dated 01.11.2018, which was again challenged by the petitioner in O.A. No. 141 of 2019 and the same was rightly rejected by the learned tribunal.

He concluded his argument by submitting that there is no error in the impugned order passed by the learned tribunal and further the case of the petitioner should also be rejected on the ground of delay and latches because the law is well settled that mere filing of representation will not allow the petitioner to come out from the mischief of delay and latches. Hence, the instant application should be dismissed and the order passed by the learned tribunal may be sustained.

6. Having heard learned counsel for the parties and after going through the documents available on record, including the averments made in the respective affidavits, it appears that a notification was

issued on 10.02.1999 inviting application from physically handicapped persons to fill up 44 Group 'D' vacancies against physically handicapped quota of Chakardharpur Division in South Eastern Railways, subject to fulfilling of terms and conditions stipulated therein. In response to the employment notice, the petitioner had applied for recruitment in Group 'D' post against visually handicapped category vide his application dated 26.03.1999. Thereafter, the petitioner along with other candidates were called to appear in the Viva Voice test held on 12.12.2000. On the basis of selection held for recruitment of physically handicapped persons in Group 'D' category, the Selection Committee prepared a panel of selected candidates of physically handicapped persons, including visually handicapped, against the 3% quota reserved for physically handicapped persons.

It further transpires that the petitioner was provisionally empaneled against the Visually Handicapped quota under panel dated 09.01.2001 and subsequently offer of appointment was issued to him and he was sent for medical examination. However, during verification of Medical certificate issued by the Civil Surgeon, Chaibasa, it was noticed that the petitioner's orthopedic disability was shown as 35-40% and visual disability was shown as 20-30% only and as per rule for recruitment against visual handicapped quota a person must be suffering from 40% disability. In other words, 40% disability is required to get employment under Visually Handicapped quota which the petitioner did not possess and accordingly his candidature was rejected.

7. Learned Sr. counsel for the petitioner has heavily argued on the question of discrimination. However, learned tribunal has duly considered the case of the petitioner and held that his case cannot be equated with those alleged similarly situated persons by holding that those persons had submitted their certificates showing required level of disability and who finally secured employment when a properly constituted Board finally reaffirmed their level of disability. However, the petitioner was having only 20% to 30%, as per the Medical certificate submitted by him at the time of provisional appointment, which was below the criteria, as such his case cannot be equated with the similarly situated persons.

For brevity, paragraph 6 of the judgment passed by the learned tribunal is quoted hereinbelow.

"6. From the above discussion, it is clear that the only issue which needs to be decided here is whether the case of the applicant is substantially similar to the cases in which appointment was given to other applicants against the notification of the year 1999, following litigation and medical board certification (confirming their disability) in later years. We find that there is a basic difference between the applicant and the others who were give appointment in that the disability certificate produced by the applicant himself showed the level of disability to be less than what was required under the rules. He cannot become entitled to the job only because of his provisional empanelment and appointment which was subject to verification of certificates and medical examination. The impugned order dated 01.11.2018, which was issued following the direction issued by this Tribunal, is a reasoned and speaking order and it does make the above distinction between the applicant and other allegedly similarly placed persons. We find this distinction logical and sensible. Persons who agitated before the courts on ground of their certificates showing required level of disability and who finally secured employment when a further properly constituted Board reaffirmed their level of disability, cannot be treated on the same ground as those whose level of disability, according to the certificate produced by themselves, was lesser than the required percentage. Hence, we do not find anything wrong in the impugned order and therefore the OA is dismissed. No order as to costs."

After going through the impugned judgment and in the background of facts and circumstances of the case, no relief can be granted to the petitioner as the plea of discrimination raised by him is misconceived.

8. There is another aspect of the matter that the petitioner was never vigilant for his right. It is only when other persons got their employment; he woke up and filed application before the learned tribunal in the year 2018. The law is now no more res integra, inasmuch as, a fence sitter cannot take advantage of others. In the case of State of U.P.& Ors. v. Arvind Kumar Srivastava & Ors. reported in (2015) 1 SCC 347 the Hon'ble Apex Court has held in paragraph 22.2 as under:

22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence- sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim."

Learned Sr. counsel for the petitioner heavily relied upon the representations filed by the petitioner but the representations could not arrest the march of time and revive a stale cause of action. Reference in this regard may be made to the judgment passed in the case of Shiv Dass v. Union of India reported in (2007) 9 SCC 274 wherein the Hon'ble Apex Court has held that representations would not be adequate explanation to take care of delay. By going through the aforesaid settled principle; No relief can be granted also on the ground of delay and latches.