Back
IN THE HIGH COURT AT CALCUTTA
LAPITA BANERJI, J.
Sujata Bora – Appellant
Versus
Coal India Limited & Ors. – Respondents
WPA 970 of 2023
Decided on : 10-08-2023
RESERVATION - MULTIPLE DISABILITIES - PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT, 1995 - PERSONS WITH DISABILITIES ACT, 2016 - COAL INDIA LIMITED - RECRUITMENT - MANAGEMENT TRAINEE - PERSON WITH DISABILITY - PARTIAL HEMIPARESIS - LOCOMOTOR DISABILITY - MULTIPLE DISABILITIES - IDENTIFICATION OF POSTS - RESERVATION OF VACANCIES - APPLICABILITY OF 2016 ACT - EFFECT OF NOTIFICATION DATED JANUARY 4, 2021 - APPLICABILITY TO ONGOING RECRUITMENT PROCESS - MODIFICATION OF RECRUITMENT NOTIFICATION - POWER OF COURT TO MOULD RELIEF - APPOINTMENT OF PETITIONER IN MULTIPLE DISABILITIES CATEGORY.
Fact of the Case:
The petitioner, a person with disabilities (PwD), applied for the post of Management Trainee in Personnel and HR discipline at Coal India Limited (CIL) under the Visually Handicapped (VH) category. She was called for document verification and initial medical examination (IME) and was declared unfit due to partial hemiparesis, in addition to visual disability. The petitioner challenged the decision, arguing that she should have been considered under the multiple disabilities category as per Section 34(1)(e) of the Rights of Persons with Disabilities Act, 2016.
Finding of the Court:
The court held that the respondent/CIL should have reserved required percentage of the total vacancies for the categories of candidates stipulated under Section 34 of the 2016 Act. It is only at the time of appointment, the issue of identification of such posts for which the reservation has been made, would have become relevant.
Issues: 1. Whether the petitioner, who suffers from partial hemiparesis in addition to visual disability, is entitled to be considered under the multiple disabilities category as per Section 34(1)(e) of the Rights of Persons with Disabilities Act, 2016? 2. Whether the respondent/CIL was under an obligation to reserve vacancies for persons with multiple disabilities in the recruitment process initiated in 2019, in light of the notification dated January 4, 2021 identifying posts for such categories? 3. Whether the court can mould the relief and allow the petitioner to participate in the present recruitment process in the reserved category of Persons with Disabilities, considering the rights of candidates who have already been recruited?
Ratio Decidendi: 1. Partial hemiparesis is a type of locomotor disability, and the petitioner, who suffers from both visual disability and partial hemiparesis, is covered under Section 34(1)(e) of the 2016 Act. 2. The respondent/CIL had a statutory obligation to reserve posts for Persons with Benchmark Disability in all the 5 categories once the Central Government identified such posts for reservation, if not before under the 2016 Act. 3. Even if the recruitment process was initiated under the 1995 Act, once the 2021 Notification was published, CIL was under an obligation to continue the said recruitment process in terms of Section 34 of the 2016 Act, taking into consideration Section 102 of the 2016 Act. 4. The court has the power to mould relief and do complete justice, depending upon the facts and circumstances of the case.
Final Decision: The court set aside the result of the IME dated September 23, 2021 declaring the petitioner to be unfit for Multiple disabilities. The petitioner was allowed to participate in the present recruitment process in the reserved category of Persons with Disabilities. The recruitment process of the petitioner will be considered from the stage of IME.
JUDGMENT :
Lapita Banerji, J :
An advertisement was published by Coal India Limited (CIL) vide Advertisement No. 1/2019 for recruitment of Management Trainees. The petitioner applied for the post of Management Trainee in Personnel and HR discipline. The petitioner applied as a reserved candidate in the Visually Handicapped (VH) category. The Reservation for PwD (Persons with Disabilities) candidates is made on horizontal basis. For being eligible to apply in the PwD category the percentage of disability would have to be 40% or above. The petitioner’s Certificate of Disability was dated April 17, 2012, on the basis of which the petitioner applied. The petitioner was selected for the interview.
2. By a communication dated July 1, 2021 the petitioner was called for Document Verification (DV) and Initial Medical Examination (IME). It was intimated by the said communication that in case the petitioner failed to report for DV or IME then the petitioner’s provisional selection, to the post of Management Trainee, shall stand automatically cancelled. The writ petitioner appeared for IME on September 23, 2021. She was declared to be unfit as a candidate since she was not only suffering from visual disability but also suffering from Residual Partial Hemiparesis.
3. Mr. Majumder, learned Counsel appearing on behalf of the petitioner submitted that under Section 34 of Rights of Persons with Disabilities Act, 2016, Reservation was required to be made not only for persons who were visually handicapped but also for persons who suffered multiple disabilities.
4. Section 34 of the 2016 Act is reproduced hereinafter:
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:
Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:
Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.
(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.
(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employ
The court ruled that candidates with disabilities must not be discriminated against based on their degree of disability, ensuring equal treatment in public employment.
Eligibility for appointment in reserved categories depends on the specific nature of disability as defined by law, not merely on the candidate's performance.
The central legal point established in the judgment is the interpretation and application of Section 33 of the Persons with Disabilities Act, 1995, regarding the reservation of posts for physically c....
While statutory provisions mandate filling unfilled reserved disability vacancies through interchange, the process remains strictly subject to merit-based selection criteria. Candidates cannot establ....
Reservation under the Persons with Disabilities Act is constitutionally mandated and cannot be denied due to post identification lapses; violations warrant legal remedy.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
