2005 Supreme(SC) 1027

2005(6) Supreme 310
Supreme Court of India
(Under Art. 32 of the Constitution of India)
Y.K. Sabharwal & D.M. Dharmadhikari & Tarun Chatterjee, JJ.
Amita —Petitioner
versus
Union of India & Ors. —Respondents
Writ Petition (C) No. 31 of 2000
Decided on 11-8-2005
Counsel for the Parties :
For the Petitioner : Ms. Neeru Vaid and Ms. Eliza Rumthad, Advocates.
For the Respondents : Ambrish Kumar, A.D.N. Rao, A. Subba Rao and Ms. Sushma Suri, Advocates.

Important point
The visually impaired candidate would be entitled to sit the write the examination for selection for the post of Probationary Officer in a Bank and the nature of duties of a Probationary Officer can be performed by a visually impaired candidate.

Headnote:Constitution of India—Articles 14, 16, 19(g), 21 and 32—Banking Service Recruitment—Post of Probationary Officers in Indian Overseas Banks—Petitioner who is a visually handicapped lady and had applied for the post was debarred from appearing in the entrance examination—Her application was rejected on ground that the Banking Service Recruitment Board does not recruit blind candidates for the post of Probationary Officers—Writ petitioner fulfilled both the requisite qualifications for eligibility—Order passed by the Banking Board challenged as erroneous—It was stated that denial of opportunity to sit and write the examination in question also violated Articles 14 and 16, 19 and 21 of the Constitution—Whether order passed by the Board rejecting application of petitioner on ground of her physical disability can be sustained—(No)—Whether denial of permission to the petitioner to sit and write the examination offends Articles 14 and 16 of the Constitution—(Yes).

       Held : Having heard the learned counsel for the parties and after going through the materials on record, we are of the view that the order passed by the Board rejecting the application of the writ petitioner on the aforesaid ground cannot be sustained. As noted hereinearlier, the requirements asked for by the Board for writing the examination for appointment to the post of Probationary Officer in the Bank were that a candidate shall not be less than 21 years and not above 30 years and that the candidate must possess a Graduation degree. There is no dispute that the writ petitioner has satisfied the aforesaid two conditions. That apart, the writ petitioner although being a visually impaired lady had applied to write the examination for the post of Probationary Officer of the Bank as a general candidate and therefore we do not find any reason why such opportunity to write the examination should be refused by the Board. That apart, we find that the writ petitioner had also applied to B.S.R.B. Bangalore for the same post. There she had mentioned the fact of her disability on the application form and inspite of informing the Board she had received the admit card for the entrance test which was held on 20th February 2000 and such grant of admit card would clearly show that the writ petitioner could not be thrown out on the ground that she was visually impaired lady, who could not be allowed to sit and write the examination for the post of Probationary Officer in the bank. (Para 5)

       The visually impaired candidate would be entitled to sit and write the examination for selection for the post of Probationary Officer in a Bank but only restriction that would be standing in the way of the writ petitioner for selection is that the nature of duties attached to the office/post would be unsuitable for the visually impaired candidate. Accordingly, we are of the view that the order passed by the authorities rejecting the application of the writ petitioner on the ground shown in the order was erroneous, illegal and invalid in law and therefore cannot be sustained. In any view of the matter, so far as prayer for permitting the writ petitioner to sit and write the examination for the year in question of which rejection order was passed, in our view, the Writ Petition had rendered infructuous as it is now an admitted position that the examination for selection in the post of Probationary Officer in the Bank of the year in question was held, result was subsequently published and the vacancies were duly filled in by making appointments on the basis of such selection of candidates. In view of the other reliefs prayed by the writ petitioner in the amended Writ Petition, the question now needs to be decided is whether the writ petitioner being a visually impaired lady would be allowed to sit and write the forthcoming examination for the post of Probationary Officer and can be appointed in such post, in view of nature of duties attached to a Probationary Officer. As found herein earlier, it cannot be doubted that a visually impaired candidate is entitled to sit and write the Probationary Officer examination along with other general candidates where any post is not earmarked for handicapped persons, as a general candidate. (Para 9)

       In the facts and circumstance of this case, Art.14 was infringed for denial of permission to the petitioner to sit and write the examination for selection of Probationary Officers. As noted herein earlier, writ petitioner was not allowed to sit for the competitive examination for the post of the Bank Probationary Officer on the ground that she was visually impaired candidate although the advertisement in the newspaper did not disclose that a visually impaired candidate cannot be allowed to sit and write the examination as the nature and duty of the job were not suitable for the visually impaired candidate. It is not in dispute that the writ petitioner had qualified for the post of Bank Probationary Officer as per the advertisement. Statement has been made in the writ petition by the writ petitioner to the effect that the writ petitioner like other visually impaired persons can perfectly perform the job of a Probationary Officer. She also applied for the same post to the B.S.R.B. and received her admit card for the same. Thus, there is discrimination by the respondent No.2 between the writ petitioner and persons who are substantially in similar circumstances or conditions. Here the writ petitioner was not allowed to sit for the entrance examination and hence was discriminated against the others who qualified for the same entrance examination. Therefore, the rejection of the application by the respondents besides the ground already stated hereinearlier, was not on reasonable grounds and was arbitrary and violative of Art. 14 which is a fundamental right of every citizen to be treated equally. (Para 11)

       Under Art. 16 of the Constitution the general rule laid down is that there should be equal opportunity for citizens in matters relating to “employment” or “appointment to any office” under the State. The expression “matter relating to employment or appointment” includes all matters in relation to employment both prior and subsequent to the employments which are incidental to the employment and form part of the terms and conditions of such employment. Therefore, under Art. 16 of the Constitution what is guaranteed is the equal opportunity to all persons. This Clause accordingly does not prevent the state from laying down the requisite qualifications recruitment for government service, and it is open to the authority to lay down such other conditions of appointment as would be conducive to the maintenance of proper discipline among government servants. Like other employers, government is also entitled to pick and choose from amongst a large number of candidates offering themselves for employment. But this can only be done only on one condition that all applicants must be given an equal opportunity along with others who qualify for the same post. The selection test must not be arbitrary and technical qualifications and standards should be prescribed where necessary. In this case, in our view, there is violation of the right of the writ petitioner under Art. 16(1) which provides for general rule, that there should be equal opportunity for citizens in matters relating to “employment” or “appointment to any office” under the State, matters incidental to employment both prior and subsequent to the employments which form part of the terms and conditions of such employment. In this case, the writ petitioner was in the first instance denied equal opportunity as given to other applicants from appearing in the entrance examination on the ground of disability which was not mentioned as a condition in the advertisement. That apart, the writ petitioner, although a visually impaired lady had not asked for any special favour for the post of Probationary Officer for selection in the post of Probationary Officer. The writ petitioner without asking for any favour had only applied for writing the examination for selection not as a reserved handicapped candidate but along with general candidates who were allowed by the Board to sit and write the examination. Since the writ petitioner was similarly situated with other general candidates, and the writ petitioner had not asked for any advantage for being a visually impaired candidate, we failed to understand why she was not permitted to sit and write the examination for the post of Probationary Officer in the Bank. (Para 11)

       Let us now consider whether the writ petitioner was entitled to be selected and appointed as Probationary Officer in the Bank in view of the nature of duties to be performed by her as Probationary Officer. (Para 13)

       In view of this specific stand taken by the Union of India in their written submission and affidavits as detailed hereinearlier, by which the Union of India has categorically stated that a visually impaired candidate would be entitled to write the examination and compete the same along with other general candidates as if she was a general candidate in the said examination and in the event he/she wants to compete the examination on reserved category in that case also he/she will be entitled to sit as a reserve candidate in the said examination when some percentage of the posts are earmarked for visually impaired candidates. It is needless to say that the Union of India and Bank Authorities have therefore admitted that the nature of duties of a Probationary Officer can be performed by a visually impaired candidate and some percentage of impaired candidates are entitled for being selected and appointed as Probationary Officers of the Bank either from the general category or from the reserved category. (Para 26)

       Accordingly, the writ application is disposed of in the following manner:

       (1) If the writ petitioner chooses to appear as a general candidate to sit and write any forthcoming examination as a Probationary Officer of the Bank, she will be entitled to do so.

       (2) If selected, she may be appointed as Probationary Officer subject to her satisfying the other terms and conditions for appointment in the said post.

       (3) If the writ petitioner writes the examination as a reserved candidate that is to say on the visually impaired seat, if there be any, and she succeeds in the said examination, she can be appointed on such reserved category in the event percentage of Probationary Officer’s post is kept reserved for visually impaired candidate by the respondents. (Para 28)