$~28 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 9^th September, 2024 + W.P.(C) 14573/2022 and CM APPL. 44622/2022 UNION PUBLIC SERVICE COMMISSION .....Petitioner Through: Mr. Naresh Kaushik, Sr. Advocate with Mr. Ravinder Agarwal and Mr.

Lekh Raj Singh, Advocates.

versus SHRI RAJENDER SINGH & ORS. .....Respondents Through: Mr. A.K. Behera, Sr. Advocate with Ms. Sonika Gill, Advocate for R-1.

CORAM:

HON'BLE MR. JUSTICE SURESH KUMAR KAIT HON'BLE MR. JUSTICE GIRISH KATHPALIA J U D G M E N T (oral)

1. The present petition under Article 226 of the Constitution of India has been filed by the petitioners seeking setting aside of order dated 30.03.2022 passed by the learned Central Administrative Tribunal („Tribunal‟), New Delhi in OA No. 492/2015 and RP No. 41/2022.

2. Notice issued.

3. Learned counsel appearing on behalf of the respondent accepts notice. 4. With the consent of learned counsel for the parties, the present petition is taken for final disposal.

5. The respondent had preferred O.A. No. 492/2015 before the learned Tribunal pleading that he had appeared in the Engineering Services Examination-2012 conducted by UPSC under Physically Handicapped (PH)

Signature Not Verified Digitally Signed W.P.(C) 14573/2022 Page 1 of 5 Category and had secured 88^th Rank in Electronics and Telecommunication Engineering. He held 4^th position in the merit list prepared by the UPSC for 10 candidates for disabilities. He was provisionally allotted Indian Railway Service of Signal Engineers against one vacancy earmarked for Orthopedically Handicapped category of disability. His disability was assessed by the Competent Authority who opined that as 70 % “BL-Both Legs affected but not arms” with remarks that „likely to improve‟. However, the Competent Authority vide order dated 28.10.2013 decided to conduct Review Medical Board, who vide order dated 16.04.2014 declared him „unfit‟ for all services on account of weakness of both legs and thereby, his candidature engaged PH vacancy was found not feasible.

6. The respondent No.1 in his OA relied upon the decision of learned Tribunal in O.A. No. 353/2010 dated 03.06.2011, wherein the applicant who had Orthopaedic disability with weakness of lower limb, was allotted the Indian Administrative Service (IAS) with appropriate rank against the vacancies with job requirements which can be performed with such disabilities.

7. The petitioner, before the learned Tribunal, opposed the claims raised by the respondent No.1 pleading that identification of post of PWD is to be done by the Government and the first Medical Board had identified his both legs affected and so, he was not considered „fit‟ for appointment under PH Category.

8. The learned Tribunal vide judgment dated 30.03.2022 observed and held as under:

“UPSC issued notification dated 10.03.2012 for conducting the ESE - 2012 to the services/posts Signature Not Verified Digitally Signed W.P.(C) 14573/2022 Page 2 of 5 under different categories for different Departments/Ministries, with the following functional classifications as mentioned in Para 9 of the notification:-

“Code Functions BL 1. both legs affected but one arms.

BA 2. Both arms affected.

a. impaired reach b. weakness of grip BLA 3. both legs and both arms affected OL 4. One leg affected (R or L) a. impaired reach b. Weakness of grip c. ataxic OA 5. One arm affected (R or L) a. Impaired reach b. Weakness of grip c. ataxic”

10. XXXXXX

11. The applicant was medically examined by Railway Hospital at Jaipur on 15.07.2013 and provisionally allotted a post in IRSSE by Indian Railway Board. However, when the sub category of the applicant, i.e., weakness in both legs, was not found in conformity with other functional classifications for which vacancies were reserved for various services/posts, a review was directed. It is noted that there was no vacancy reserved for BL category in Electronics and Telecommunication discipline, and the vacancies against sub categories in OA/OL were available. The responde