Ranjan Tak vs Union Of India ...
2023 Latest Caselaw 6730 Raj

[2023:RJ-JD:27756] (1 of 13) [CW-18826/2018]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 18826/2018

Ranjan Tak S/o Shri Ram Pratap Tak, Aged About 23 Years, R/o Opposite Govt. Girls Senior Secondary School, Rajmahal, Gulabsagar, Jodhpur, Rajasthan.

----Petitioner Versus

1. Union of India through Secretary, Ministry of Petroleum And Natural Gas, Government of India, Shastri Bhawan, New Delhi.

2. Oil And Natural Gas Corporation Limited through its Director (H.R.), Recruitment Section, Deendayal Urja Bhawan, 5-Nelson Mandela Marg, Vasant Kunj, New Delhi, Pin- 110070.

3. Incharge, Corporate Recruitment Oil And Natural Gas Corporation Limited, Tej Bhawan, Deharadun, Uttrakhand.

                                                                         ----Respondents


     For Petitioner(s)           :    Mr. Sunil Purohit
     For Respondent(s)           :    Dr. Sachin Acharya, Sr. Advocate
                                      assisted by Mr. Karan Parihar
                                      Mr. O.P. Mehta, through VC



                           JUSTICE DINESH MEHTA

                                       Judgment

Reportable                                                                    02/09/2023

1. The petitioner has approached this Court with a grievance

that the respondents have wrongly declared him unfit on account

of his visual constraint.

2. The facts appertain are that the petitioner having requisite

educational qualification applied for the post of Materials

Management Officer, pursuant to the advertisement dated 3/18

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(R&P) (Annex.-1) issued by the respondent - Oil & Natural Gas

Corporation Limited (hereinafter referred to as 'the Corporation').

3. It is to be noted that by the advertisement above referred,

total 49 seats were notified, out of which, 19 seats were reserved

for Visually Handicapped persons and one was earmarked for Hard

of Hearing person. Furthermore, it was specifically mentioned in

the subject advertisement that the post is suitable for OA, OL, BL,

HH and LV category (One Arm, One Leg, Both Legs, Hard of

Hearing and Lower Vision) category of persons.

4. The petitioner submitted his application form as an OBC

category candidate and not as PH category candidate, though, he

was visually impaired 30%.

5. Petitioner was found meritorious and was offered

appointment by way of an order dated 25.09.2018, subject to

production of certificate of medical fitness from the Medical Officer

of the respondent - Corporation. When the petitioner was

subjected to medical examination, the board opined that as per

the medical certificate, the petitioner does not have binocular

vision for having impairment in his left eye to the extent of 30%

and hence, he is unfit.

6. When the petitioner was not allowed to join, he made a

detailed representation dated 14.10.2018 addressed to the

Chairman of the respondent - Corporation and highlighted that he

stood meritorious without claiming reservation as 'PH' category

candidate and that he (having 30% disability) cannot be denied

appointment, when persons with greater degree of visual

impairment are given reservation and offered appointment.

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7. Petitioner's request for review - relook came to be turned

down by way of impugned communication dated 27.11.2018. The

relevant extract of the impugned communication is reproduced

thus:-

"3. As per the medical norms of ONGC, the candidate should have good Binocular Vision. For regular appointment one-eyed persons are to be regarded as unfit. However, as indicated in ONGC MER- 1 form, it has been mentioned that you do not have Binocular Vision. As per the Medical Fitness Certificate issued by I/c-Medical Services. ONGC, Mumbai, you have been declared medically unfit, as you are not fulfilling the above condition."

8. Mr. Purohit, learned counsel for the petitioner while accepting

the fact that the petitioner is having 30% impairment in his left

eye submitted that the respondents' action of declaring him

medically unfit is absolutely illegal and arbitrary.

9. He argued that when the post of Materials Management

Officer has been earmarked for reservation to visually

handicapped persons and as many as 19 posts have been

earmarked and further fact that such post has been held suitable

for Blind and Low Visioned (BL and LV) persons, declaring

petitioner who has lesser disability (of 30%) to be unfit for the

post is unreasonable.

10. Learned counsel argued that the petitioner cannot be

discriminated simply because of having a lesser impairment or

being less disabled than the benchmark disability which would

have made him entitled to claim reservation as a 'PH' category

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candidate. It was argued that it was preposterous to see that the

respondents are considering persons having 40% or more

disability in their eyes to be suitable for appointment while

treating the petitioner unfit for having 30% impairment in his eye.

11. Learned counsel emphatically argued that unless the

petitioner claims reservation as a blind person or person with low

vision, his percentage of disability in his eye cannot come in his

way of getting appointment, particularly, when the persons who

have similar impairment are treated fit to be appointed on the

post in question.

12. The Court interacted with the petitioner who was present in

the Court. The petitioner informed that he is an engineer having

obtained his B. Tech Degree from the Indian Institute of

Technology, Roorkee. Upon being asked, he informed that the

impairment in his eye was not acquired at birth, but on a fateful

day, when he was playing cricket, a ball struck his left eye and

that stroke of ball created deformity in his left eye. But it was

heartening to learn that the bright boy who has secured 81.48%

marks in the recruitment held by the respondent - Corporation

and stood 10th in the merit did not take it as a curse and has

worked hard to get admission in IIT (Roorkee), a coveted course

in the field of engineering.

13. Mr. Sunil Purohit, learned counsel relied upon the Co-

ordinate Bench's order dated 14.05.2019 rendered in the case of

Varsha Narwani Vs. State of Rajasthan & Ors.(S.B. Civil

Writ Petition No.13034/2018) and the judgment dated

27.02.2020 passed by this Court in the case of Rekha Meena Vs.

[2023:RJ-JD:27756] (5 of 13) [CW-18826/2018]

State of Rajasthan & Ors. (S.B. Civil Writ Petition

No.1325/2020).

14. Learned senior counsel appearing for the respondents, on

the other hand, argued that the petitioner was aware of the

condition of the advertisement, which clearly provided that the

persons who have good binocular vision alone would be treated fit.

It was further argued that the petitioner ought to have challenged

the condition of the advertisement if he was so aggrieved that too

before appearing in the recruitment process.

15. Learned senior counsel also argued that the respondents

have limited seats (19) available for people with visual

impairment. He submitted that visually challenged persons can be

posted only on those earmarked posts and more persons with

difficulty in vision than the number which has been already

notified cannot be accommodated in the respondent's

organisation.

16. Heard learned counsel for the parties.

17. There is no gainsaying the fact that the petitioner is having

30% challenge in his vision. The moot question which has come

up for consideration of this Court is, whether a person having

lesser impairment than the parameter fixed for reservation under

'the Rights of Persons with Disabilities Act, 2016 (i.e. 40% or

more)' despite being meritorious can be non-suited on the

medical grounds, particularly when the post has been reserved to

be filled in by the persons with the very same disability.

18. Answer to this question, in the opinion of this Court is, a

definitive 'No'.

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19. According to this Court, when the Central Government or the

respondents after due application of mind have identified a

particular post suitable for appointment of person with particular

kind of disability and further if reservation has been provided to

the candidates with such disability having 40% or more

impairment, other candidates with that particular type of disability

cannot be denied appointment on remaining or unreserved seat.

Treating the persons other than the person with benchmark

disability to be medically unfit is irrational and arbitrary to say the

least.

20. According to this Court, a person like the petitioner who is

having lesser disability cannot be left in the lurch to keep cursing

the nature for giving him lesser injury or impairment. On account

of regressive approach of the respondents, the petitioner would

relentlessly repent and think - 'Alas! I was more disabled.'

21. The stand of the respondent - Corporation that only 19 posts

have been kept reserved for persons having visual impairment and

the respondents cannot accommodate more persons than that, is

factually incorrect on the one hand and illogical on the other.

22. A perusal of the result (Annex.4) reveals that only 11

persons with Disabilities (VH) have been empanalled for

appointment whereas, the number of posts that were advertised

for VH category was 19. Hence, Corporation's version that they

cannot accommodate more candidates is unacceptable, because

number of posts (8) earmarked for VH category candidates are

still unfilled.

23. While maintaining that the petitioner, a meritorious

candidate having secured much more marks (81.48) than even

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the cut-off of General Category Candidates cannot be treated to

be a reserved/PH category candidate and that the petitioner who

after the unfortunate accident has completed his B.Tech degree

including all the practicals and thereafter cleared G.A.T.E.

(Graduate Aptitude Test in Engineering) with flying colours can

satisfactorily discharge all the duties/responsibilities assigned to

him, this Court feels that in case he faces any functional difficulty,

then, the petitioner can well be asked to perform the duties which

have been purportedly earmarked for 19 posts reserved for VH

persons.

24. Moving on the legal position, it is a known fact that with a

view to give effect to the United Nations Convention on the Rights

of persons with disabilities and for matters connected therewith or

incidental thereto, the Parliament enacted the Rights of Persons

with Disabilities Act, 2016 (hereinafter referred to as 'the Act of

2016') and the Central Government made the Rights of Persons

with Disabilities Rules, 2017 (hereinafter referred to as 'the Rules

of 2017') in exercise of the powers conferred by sub-section (1)

and (2) of section 100 of the Act of 2016.

25. The provisions of the Act of 2016 and Rule 3 of the Rules of

2017, which are relevant for the present purposes are being

reproduced as under:-

"2. Definitions.-- In this Act, unless the context otherwise requires,--

(c) "barrier" means any factor including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors which hampers the full and effective participation of persons with disabilities in society;

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(h) "discrimination" in relation to disability, means any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation;

(r) "person with benchmark disability" means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;

(s) "person with disability" means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;

3. Equality and non-discrimination.--

(1) The appropriate Government shall ensure .... .... .... .... .... .... .... .... .... .... .... .... (2) .... .... .... .... .... .... .... .... .... .... (3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.

20. Non-discrimination in employment-

(1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:

33. Identification of posts for reservation -- The appropriate Government shall--

(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;

(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and

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(iii) undertake periodic review of the identified posts at an interval not exceeding three years.

Rule 3. Establishment not to discriminate on the ground of disability.-

(1) The head of the establishment shall ensure that the provision of sub-section (3) of section 3 of the Act are not misused to deny any right or benefit to persons with disabilities covered under the Act.

(2) If the head of the Government establishment or a private establishment employing twenty or more persons receives a complaint from an aggrieved persons regarding discrimination on the ground of disability, he shall -

(a) initiate action in accordance with the provisions of the Act; or

(b) inform the aggrieved person in writing as to how the impugned act or omission is a proportionate means of achieving a legitimate aim.

(3) If the aggrieved person submits a complaint to the Chief Commissioner or State Commissioner for Persons with Disabilities, as the case may be, the complaint shall be disposed of within a period of sixty days:

Provided that in exceptional cases, the Chief Commissioner or State Commissioner may dispose of such complaint within thirty days.

(4) No establishment shall compel a person with disability to partly or fully pay the costs incurred for reasonable accommodation."

26. A combined reading of the above provisions of sections 2(h)

and 3(3), particularly the highlighted part(s) of the Act, reveals

that the Act of 2016 casts a duty upon respondent - Corporation,

(which falls squarely within the definition of appropriate

Government) to ensure that persons with disability are not

discriminated against.

27. It is to be noted that two seemingly similar, but legally

distinct terms have been used by the Act of 2016 and Rules of

2017 - "persons with benchmark disability and persons with

[2023:RJ-JD:27756] (10 of 13) [CW-18826/2018]

disability", duly defined in clause (r) and (s) of section 2 of the Act

of 2016. A person with specified disability whose disability

exceeds 40% or more is called a person with benchmark disability.

28. Chapter II of the Act of 2016 deals with special provisions for

person with Benchmark disabilities of which, Sections 32, 33 and

34 are integral part. Section 32 of the Act of 2016 provides for

reservation in educational institutions, while sections 33 and 34

stipulate identification of posts and reservation for person with

benchmark disabilities qua such posts.

29. It is pertinent to note that Section 3 of the Act in particular,

is not confined to the persons with benchmark disabilities - it is

applicable to all specially abled persons, irrespective of nature and

extent of their disability. If read in that perspective, sub-section

(3) of section 3 of the Act of 2016 clearly mandates that a person

with disability shall not be discriminated on the ground of disability

unless it is shown that impugned act or omission is a

proportionate means of achieving a legitimate aim.

30. According to this Court, Note No. (iii) appended with clause

V (Eyes) of the Instructions to the Competent Medical Authority

regarding Physical Examination of candidates for appointment in

Oil and Natural Gas Corporation Ltd. (hereinafter referred to as

'the Instructions'), is clearly contrary to law and is afront to the

provisions of the Act of 2016, at least in the present set of facts.

31. Offending condition may be valid for other posts, but in

relation to 'Materials Management Officer', when the post has been

identified for low vision candidates and 19 posts have been

reserved for Visually Handicapped (VH) persons, the impugned

condition has to concede. As the category of visually handicapped

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person has been identified for the post of Materials Management

Officer, the condition of having binocular vision is a contradiction

in itself.

32. In the opinion of this Court, the norms or criteria fixed for

eyes, ears, hearing defects and gait or locomotion etc. have to be

accordingly construed or relaxed, while conducting medical

examination of a person who is having a bodily challenge, if such

challenge or disability has been held acceptable rather suitable for

the corresponding post. To express it differently and to make it

more clear, it is held that "In case a post has been held suitable

for a particular type of disability and if a person suffers from such

disability, he cannot be declared medically unfit, simply because

he has not claimed reservation or his disability is less than the

benchmark fixed for making him entitled to claim reservation.

33. If that is not done, the result would be unjust and

inequitous.

34. In the present case 11 persons with benchmark disability

have been selected (who had more than 40% disability)

regardless of the fact that they do not have binocular vision, but

the petitioner has been declared unfit for not having binocular

vision or having less than 40% disability. Respondents' action

besides being discriminatory, defies all logics and the same

disregards petitioner's fundamental right guaranteed under Article

14 of the Constitution of India.

35. Such action/act of the respondents is also in the teeth of

sub-section (3) of section 3 of the Act of 2016 and infringes right

to live with dignity guaranteed by Article 21 of the Constitution of

India. Because, expanse of right to life guaranteed under Article

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21 of the Constitution of India has been held to be wide enough to

include within its lap, right to live with dignity.

36. The petitioner, in the present case, has come with a plea that

he deserves to be considered on the basis of his own merit in his

category (OBC - Non-Creamy Layer) and not qua the posts

meant/reserved for the persons with disability.

37. Needless to mention that the Act of 2016 so also the Rules of

2017 have been promulgated with a view to not only provide

equal opportunities, but also to ensure full participation of the

person having physical or mental challenges. The provisions of the

Act and Rules are beneficial and reformative in nature and hence,

an endeavor should be made to harmonize the provisions and

relevant conditions to achieve the object for which they were

enacted. In light of the avowed object of empowering Persons with

Disabilities, the impugned action of the respondents appears to be

wholly unsustainable and against human rights and the

fundamental rights guaranteed by the Constitution of India.

38. "One ball which hit the petitioner's eye while playing cricket

has caused enough injury. The respondents cannot be permitted

to rub salt to such injury by denying the petitioner his legit right

and make him think the worst, that the ball should have caused

10% more injury, so that his merit would not be trampled upon

and he could get appointment at least against the reserved seats.

In the growing economy and vibrant society like ours and in a

developing country of bright youths, such blind-folded approach

does not muster clear the test of reasonableness. Such attitudinal

barrier, which impedes the future of an otherwise meritorious

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candidate deserves to be removed to boost the morale of the

society and to uplift socio economic environment of the Country.

39. According to this Court, the intention of the Act is not simply

to give benefit of reservation to persons with disability who are

having 40% or more disability but also to sensitize the State and

its instrumentalities towards predicament of such people.

40. The Rights of Persons with Disabilities Act, 2016 mandates

that a person with benchmark disability will be given reservation

in the public employment but the same cannot be read to mean

that a person with lesser disability will be ignored and considered

medically unfit when it comes to employment in the same stream

and with the same disability.

41. In light of what has been stated hereinabove, the writ

petition is allowed; the impugned order dated 27.11.2018

(Annex.9) is quashed.

42. The respondents are directed to accord appointment to the

petitioner on the post of Materials Management Officer within a

period of eight weeks from today against the post that has been

ordered to be kept vacant per-viam interim order dated

11.12.2018 passed in this case.

43. The petitioner shall be entitled for notional benefits from

05.10.2018, the date when he was declared medically unfit.

44. Stay petition also stands disposed of accordingly.

(DINESH MEHTA),J 269-Arvind/Ramesh-

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