JUDGMENT
S.B. Sinha, C.J.
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 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 DP&T’s O.M. dated 27.02.1996
superceding the percentage system of evaluating the
degree of physical handicap, and defining those as
orthopaedically 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 effect
from the date of his Junior Engineer in merit list of
July 1997 examination was appointed. However, he
shall not be accord any back-wages, but he shall be
given the benefit of seniority and notional pay –
fixation. These directions shall be carried out by the
Respondents within a period of two months from the
date of receipt of a copy of this order. There shall be
no order as to costs.”
9. The Parliament of India has enacted The Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1
of 1996). (in short, ‘the Act’) wherein disability has been defined in the following
term:-
“2(i) ‘disability’ means –
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(vii) mental illness;”
10. The aforesaid ‘locomotor disability’ has been defined in Section
2(o) of the Act, thus:-
“2(o) “locomotor disability” means disability of the
bones, joints or muscles leading to substantial
restriction of the movement of the limbs or any form
of cerebral palsy;”
11. In terms of clause (i) of Article 16 of the Constitution of India (in
short, ‘the Constitution’), the State is entitled to make reservations for physically
handicapped persons.
12. By reason of the Office Memorandum dated 27.02.1996, 1% of the
posts/services were reserved for the orthopaedically handicapped.
13. By Office Memorandum dated 04.06.1998, each category of
disability had been divided into four groups in the following manner:-
(a) Mild : less than 40%;
(b) Moderate : 40% and above;
(c) Severe : 75% and above;
(d) Profound / total : 100%
14. The relevant clauses of the aforesaid Office Memorandum dated
04.06.1998 are as under:-
“3. According to the instructions contained in the
Ministry of Welfare’s Notification No. 4/2/83HW-III
dated 6.8.86, various concessions/benefits, including
employment under the Central Government, are
available only to those falling under the categories
mentioned at (b), (c) and (d) in the preceding
paragraph. The minimum degree of disability has also
been prescribed as 40% in order for a person to be
eligible for any concessions/benefits.
… … … … … … … …
6. The matter has been examined and it has been
decided that henceforth, the categories of persons with
disabilities for the purpose of getting the benefit of 3%
reservation in posts / services under the Central
Government would be as indicated in Section 33 of the
Persons with Disabilities (Casual Opportunities,
Protection of Rights and Full Participation) Act, 1995.
These categories of persons are as under:-
(i) Blindness or low vision;
(ii) Hearing impairment:
(iii) Locomotor disability or cerebral palsy;
(All cases of Orthopaedically handicapped
persons would be covered under the category of
locomotor disability or cerebral palsy).
… … … … … … … …
8. Each category of disability as mentioned in para 6
above would continue to be divided in to four groups
as mentioned in para 2 of this letter. Further, various
concessions / benefits, including employment under
the Central Government, would continue to be
available only to those falling under the categories
given at (b), (c) and (d) of the aforesaid paragraph.
The minimum degree of disability in order for a
person to be eligible for any concessions/benefits
would continue to be 40%.”
15. In view of the fact that the respondent herein does not fulfill the
aforementioned criteria, we are of the opinion that the learned Tribunal went wrong
in passing the impugned judgment.
16. The learned counsel for the respondent, however, would submit that
having been a party to the earlier litigation as the order dated 02.08.2000 in O.A
No. 201 of 1999 was passed by the learned Tribunal on compromise, the same
could not have been questioned by the petitioner.
17. In that view of the matter, the learned counsel appearing on behalf
of the respondent herein would contend that for the purpose of appointing the
respondent, the petitioner could not have been insisted upon that the disability must
be to the extent of 40%.
18. A reservation for handicapped persons is made in terms of clause (1)
of the Article 16 of the Constitution. The State while issuing an executive
instruction in this regard may also lay down the conditions therefore. The policy
decision adopted by the State must be strictly adhered to inasmuch as any deviation
there from may attract the wrath of Articles 14 and 16 of the Constitution.
19. The Order dated 30.08.1999 passed in O.A. No. 201 of 1999 was not
by consent. By reason of the said order, the parties merely agreed that the
respondent be examined afresh for determination of his degree of disability as there
had been difference of opinion between the two hospitals.
20. If in terms of the certificate granted by Bara Hindu Rao Hospital,
Delhi, which was to be treated as final, the respondent could not have been
considered for appointment in terms of the policy decision, the learned Tribunal in
our opinion committed a grave error in issuing the aforementioned directions.
21. The requirement of a policy decision, it will bear repetition to state,
must be strictly adhered to. Only because in the earlier case, the petitioner agreed
for a fresh medical examination of the respondent, the same would not mean that it
has a right not to adhere to the policy decision. Such purported waiver is also not
permissible in law as a result whereof not only a policy decision will be thrown to
the wind, the right of the others may also be affected. In any event, there cannot be
waiver against the Constitutional mandate. Such a waiver does not also pass the
public interest test.
22. In this vies of the matter, we are of the opinion that the impugned
judgment cannot be sustained, which is set aside and it is declared that the
respondent herein having not fulfillled the criteria, he cannot be considered for
recruitment in the reserved category candidate.
23. This writ petition is accordingly allowed without any order as to
costs.