Full Text
HIGH COURT OF DELHI
Date of Decision: 12th December, 2024
3952/2020 SATYENDRA KUMAR .....Petitioner
Through: Mr. Rahul Malhotra, Mr. Chirag Goyal, Mr. Kaustubh Punj and Mr. Rishabh Singh, Advocates.
Through: Ms Anju Gupta and Mr. Roshan Lal Goel, Advocates for Respondent No.1/UOI.
Mr. A. P. Singh, Mr. Naman Saraswat and Ms. Saloni Jaggee, Advocates for Respondent
No.2/ONGC.
JUDGEMENT
JYOTI SINGH, J. (ORAL)
JUDGMENT
1. This writ petition has been filed on behalf of the Petitioner under Article 226 of the Constitution of India seeking the following reliefs: “i. Pass order (s) or directions in the nature of writ of mandamus or like nature thereby directing the respondent no.2 to allocate identical/equal number of PWD reserve seats to all 3 categories i.e. 1% each for VH, HH, OH in terms of O.M. NO. 36012/24/ 2009-Estt.(Res.) DoPT, Govt. of India. ii. Set-aside/modify the advt. no. 3/2018 (R&P) ONGC, being violative of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, and direct the respondent no.2, to equally allocate 19 numbers of reserved posts of Material Management Officer in 3 PWD categories 1% each or at least 05 seats for BL-OH Category and consider petitioner's case for recruitment of Graduate Trainees at E-1 level in Engg.fi Geo-Science posts through GATE-2018 as per rules. iii. Issue rule nisi and made the said rule absolute on its return.”
2. As per the narrative in the writ petition, Petitioner suffers from 50% locomotive disability, both legs (BL) and he has appended a Disability certificate dated 15.02.2018 along with the writ petition. Petitioner completed his B.Tech. in Mechanical and Automotive Engineering from Delhi Technical University (‘DTU’) with 1st class. Petitioner applied for GATE-2018 Examination on 28.09.2017 and appeared for the examination. On 17.03.2018, results were declared and his score was 327 with All India Ranking of 32,333 out of 1,94,496 candidates.
3. The genesis of this writ petition is an advertisement bearing No.3/2018 published by the Oil and Natural Gas Limited (‘ONGC’) on 15.04.2018 for recruitment of Graduate Training Trainees at E-1 Level in Engineering and Geo-Sciences posts through GATE-2018. Considering himself eligible in the category of BL-OH, Petitioner applied through online mode for the post of Material Management Officer (‘MMO)’. He, however, realised that he would not be shortlisted as no vacancy was reserved for BL-OH category though identified at Post Nos. 14 and 15. Petitioner wrote to the Chief Commissioner for Persons with Disabilities on 11.05.2018 pointing out non-reservation for BL-OH category and alleging violation of Section 57 of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 (‘1995 Act’).
4. It is averred that vide letter dated 21.05.2018, ONGC brought forth that 1/3rd of vacancies were identified for Visually Handicapped (‘VH’) in the advertisement and the other PwD vacancies of Hearing Handicapped (‘HH') and Orthopedically Handicapped (‘OH') were distributed among other identified posts. As per the Petitioner, no vacancy was reserved for BL-OH despite two posts being earmarked for BL category and therefore, Petitioner’s category was completely ousted from reservation. With this grievance, Petitioner approached this Court for setting aside the advertisement as violative of Section 33 of 1995 Act as well as provisions of DoPT O.M. dated 20.03.2014 and for a direction to ONGC to allocate 01 vacancy in BL-OH category.
5. Mr. Singh, learned counsel appearing for ONGC, at the outset, took a preliminary objection to the maintainability of the petition on the ground that Petitioner has not come to this Court with clean hands inasmuch as the disability certificate dated 15.02.2018 appended to the writ petition and submitted to ONGC is not a genuine certificate as there is overwriting at various places and moreover, his social media posts indicate that he was recently employed with a well-known company and did not suffer from any locomotor disability.
6. Upon such serious allegations being made, with the consent of the Petitioner and counsels for the parties, matter was referred to the Registrar (Vigilance) of this Court to inquire into the genuineness of the disability certificate. Be it also noted that during the course of hearing, Petitioner filed another disability certificate dated 15.07.2016 albeit the same was not submitted to the ONGC at the time of applying for the post of MMO.
7. The Registrar (Vigilance) rendered his report on 19.10.2024 and the findings are as follows:-
(i) That applicant Mr. Satyendra Kumar was initially examined by the medical experts of Disability Medical Board on 15.07.2016 in a Disability Camp.
(ii) After examination, the Board opined that Mr. Satyendra Kumar is a disabled person with disability of muscular dystrophy (50%).
(iii) Accordingly a certificate dated 15.07.2016 was issued in his favour, which was collected by his father Mr. Sambhunath on 05.08.2016.
(iv) Though in the certificate, it is mentioned that the condition is progressive and re-assessment is recommended, but the duration after which re-assessment should be done is not mentioned. Despite that, the Certificate dated 15.07.2016 contains 50% permanent disability.
(v) The Certificate dated 15.02.2018 bears the Certificate No.88 and the
(vi) At the time of issuing Certificate dated 15.02.2018, applicant Mr.
Satyendra Kumar was not examined by any Disability Medical Board. Rather it was issued on the basis of earlier Certificate dated 15.07.2016.”
8. Copy of the report was furnished to the respective counsels and the arguments were canvassed after going through the report. From the report and perusal of the disability certificate dated 15.02.2018 it emerges that the same was issued by the Medical Board without medical examination of the Petitioner and was based entirely on the earlier disability certificate dated 15.07.2016. In the disability certificate dated 15.02.2018, reassessment is recommended after a period of 05 years while in the certificate dated 15.07.2016, disability is certified as permanent and thus there is a stark and apparent contradiction. Also the disability certificate dated 15.02.2018 was issued without medical examination and is thus not as per the mandate of the guidelines for assessment of disability which provide a rigorous procedure for medical examination before certifying locomotive disability. Learned counsel for the Petitioner urges that the disability certificate dated 15.02.2018 was made as per the instructions issued by ONGC and no fault can be found with the Petitioner. This submission was strenuously opposed by Mr. Singh, learned counsel for ONGC by pointing out and rightly so, that the advertisement in question was issued on 15.04.2018 and therefore, there was neither any reason nor occasion for ONGC to prescribe or instruct how disability certificate was to be issued. Be that as it may, in light of the report it cannot be held that the disability certificate dated 15.02.2018 is not genuine since it has been issue by the Board albeit it is not in consonance with the guidelines issued by the Government of India.
9. Even otherwise, in my view, Petitioner has no case on merit. Petitioner applied against the advertisement bearing No.3/2018 for the post of MMO and reading of the writ petition and the relief clause leaves no doubt that his case in a nut shell is that the impugned advertisement is not in consonance with the mandate of Section 33 of 1995 Act and DoPT O.M. dated 20.03.2014 for the reason that there is no reservation for sub-category BL-OH for the post of MMO. There can be no quarrel that there is a statutory mandate under Section 33 of the 1995 Act for 1% reservation each for persons suffering from (a) Blindness or low vision; (b) Hearing impairment; and (c) Locomotor disability or cerebral palsy, in the posts identified for each disability, provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
10. ONGC has brought forth in the counter affidavit that as per the mandate of DoPT O.M. dated 20.03.2014, reservation for persons with disabilities in Group ‘A’ and Group ‘B’ posts has to be computed on the basis of total number of vacancies occurring in the direct recruitment quota in Group ‘A’ or Group ‘B’ posts in the cadre and this mandate has been followed inasmuch as out of total number of 1032 vacancies, total 26 were reserved in VH category; 56 in HH; and 32 in OH category, which is in excess of 1% reservation. Therefore, in my view, there is no violation of Section 33 of the 1995 Act and DoPT O.M. dated 20.03.2014. Petitioner cannot call upon this Court to direct ONGC to make reservations specifically for a sub-category as that is not the mandate of the law. In any case, reservations in sub-categories has to be based on functional requirements of the posts and it is not for this Court to determine and/or direct which of the sub-categories must be included for reservation in an advertisement for direct recruitment, as assessment of functional requirement is the domain of the Ministry of Social Justice & Empowerment and/or the concerned employer. There is no legal infirmity in the impugned advertisement and accordingly, the writ petition is dismissed. Pending applications also stand disposed of.
11. The report of the Registrar (Vigilance) will be placed back into the envelope, sealed and retained with the Dealing Assistant.
JYOTI SINGH, J DECEMBER 12, 2024 B.S. Rohella