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2002 Supreme(Del) 342
High Court Of Delhi
UNION OF INDIA - Appellant
Versus
K.P.SINGH - Respondent
Decided On : 03/08/2002
Strict adherence to policy decisions and constitutional provisions regarding the appointment of physically handicapped candidates is essential, and waiver against the Constitutional mandate and deviation from policy decisions is impermissible.
Headnote:
Handicapped - Appointment Dispute - The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1 of 1996) - Section 2(I), Section 2(O), Article 16 of the Constitution of India, Office Memorandum dated 27. 02. 1996, Office Memorandum dated 04. 06. 1998 - The court discussed the definition of disability under the Act, the reservation for physically handicapped persons under the Constitution, and the criteria for eligibility for concessions/benefits under the Office Memorandum.
Fact of the Case:
The petitioner, a handicapped person, sought appointment as a Junior Engineer (Civil) in the Central Public Works Department (CPWD) based on a medical certificate. The dispute arose from the discrepancy in the degree of disability as certified by different hospitals.
Finding of the Court:
The court held that the petitioner could not be considered for recruitment in the reserved category as he did not fulfill the criteria for eligibility for concessions/benefits under the relevant policy decisions and constitutional provisions.
Issues: Discrepancy in the degree of disability certification, eligibility for appointment as a physically handicapped candidate, adherence to policy decisions and constitutional provisions.
Ratio Decidendi: The court emphasized the strict adherence to policy decisions and constitutional provisions regarding the appointment of physically handicapped candidates, highlighting that waiver against the Constitutional mandate and deviation from policy decisions may affect the rights of others and is not permissible.
Final Decision: The court set aside the impugned judgment and declared that the respondent could not be considered for recruitment in the reserved category due to non-fulfillment of the eligibility criteria.
( 1 ) THIS writ petition is directed against an order dated 02. 08. 2000 passed by the Central Administrative Tribunal, Principal Bench ( hereinafter referred to as the Tribunal ) in O. A. No. 385 of 2000 whereby and whereunder an original application filed by the respondent herein praying for the following relief.
"the Hon ble Tribunal may be pleased to declare and order respondents 1, 2 to produce in the tribunal, with copy to Applicant, the fresh medical report on Applicant s handicapped status from Bara hindu Rao Hospital, Delhi and to appoint the applicant as regular Junior Engineer (Civil), with arrears and all benefits in service on duty since the date anybody lower in merit-list of July, 1997 Exam to Applicant was appointed, if the fresh report certified a physical defect or deformity which causes an interference with the normal functioning of the bones, muscles and joints due to amputation of his right hand index finger through middle phalanx, grant any other relief with costs. "
( 2 ) THE basic fact of the matter is not in dispute. The petitioner is a handicapped person. He did his B. E. (Civil) from Birla Institute of Technology. He qualified at All India Competitive Examination in the year 1997 for the post of junior Engineer (Civil) in Central Public Works Department ( in short, cpwd ) upon relaxation of his age. The petitioner relied upon a certificate issued by Bara hindu Rao Hospital, Delhi wherein he was shown as a physically handicapped person. However, the petitioner was certified to be handicapped to the extent of 9% only by Dr. Ram Manohar Lohia Hospital, New Delhi.
( 3 ) HE filed an original application before the Tribunal, which was marked as O. A. No. 201/99.
( 4 ) BY an order dated 30. 08. 1999, it was directed :-
"2. With the agreement of both parties, this O. A. is disposed of with a direction to respondents to obtain a further opinion from the Bara Hindu Rao hospital, Delhi in the background of the certificate issued earlier by them on 23. 12. 1991, as to whether, consequent to the DPandt s O. M. dated 27. 02. 1996 superceding the percentage system of evaluating the degree of physical handicap, and defining those as orthopaedic ally handicapped, who have a physical defect or deformity which causes an interference with the normal functioning of the bones, muscles and joints, applicant would qualify for appointment as junior Engineer in C. P. W. D. on the basis of all India competitive examination in July, 1997 in the physically handicapped quota. "
( 5 ) THE contention of the petitioner herein is that in terms of the policy decision, reservation as contained in O. M. dated 04. 08. 1998, the minimum degree of disability for any benefit / concession for physically handicapped was required to be 40%. He in terms of his medical certificate submitted by him, the disability was only to the extent of 10%, which when he had been referred to Ram Manohar lohia Hospital, came down to 9% only and thus his result was cancelled by an order dated 09. 11. 1998.
( 6 ) ACCORDING to the respondent, on the basis of fresh medical certificate, the petitioner should have been directed to be appointed as Junior engineer (Civil) with consequential benefits.
( 7 ) IN the order dated 30. 08. 1999 passed by the Tribunal in the said o. A. No. 201 of 1999, the respondent was certified to be disabled only to the extent of 5% only.
( 8 ) THE learned Tribunal, however, by reason of the impugned order held as follows :-
"in view of the certificate dated 15. 10. 1999 given by the Hindu Rao Hospital, Delhi, we have no doubt in our mind that the applicant suffers from a physical handicap entitling him to the benefit of age relaxation under the rules. In this view of the matter and in the facts and circumstances of the case, the o. A. is allow and the respondents are directed to consider the applicant s case for appointment as regular Junior Engineer (Civil) by giving him the benefit of physically handicapped persons with
