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W.P.(C)10164/2018&C.M.No.39611/2018
SARIKA JAIN Petitioner
Through:Mr.VikasKumar,Mr.Abhishek Kumar and Mr.Manish Paliwal,Advocates.
Through:Ms,Suparna Srivastava and Ms.Nehul Sharma,Advocates.
HON'BLE MS.JUSTICE REKHA PALLI O R D E R ;v26.09.2i)18
JUDGMENT
1. The petitioner has challenged thejudgment dated 17.11.2017,passed by the Central Administrative Tribunal, Principal Bench, New Delhi, dismissing O.A. No. 3875/2017 filed by her for issuing directions to the respondent No.l/UOI and the respondent No.2/Ministry of Social Justice and Empowerment to consider her for appointment in the Indian Administrative Service (hereinafter referred to as "IAS") under the disabled, categories, as provided under Section 33 of the Persons with Disabilities Act (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as'the Act'). W.P.(C)10164/2018 ^"-/"f 2018:DHC:8645-DB
2. A glance atthe relevant facts ofthe case is considered necessary. UPSC issued an Examination Notice No.04/2013-CSP dated 05.03.2013 for conducting the Civil Service Examination-2013 (in short "CSE-2013"). A fascicle ofthe said Notice is appended at Note-II, which identified the services suitable for physically disabled categories along with the respective functional classifications and physical requirements. For the purpose ofpresent case,the following extract is relevant:- Sr. Name of the _Category(ies) Functional Physical No. Services for which Classification requirements identified
1. Indian i).Locomotor BA. OL.
S.ST, W,SE, Administrative disability OA.BH H.R.WT Service ^; MW ■ii)Visual LV irnpairment..iii).=Hearing PD For our understanding, the full form of the abbreviations of the functional classifications mentionedin column 3 (i) of the table above, are as follows:- BA -Both arms affected OL - One leg affected (R or L) OA - One arms leg affected (R or L) BH-Both hands affected MW - Muscular weakness
3. Thepetitioner, who suffers from a disability to the extent of 68 % inboth legs,had applied for participatinginthe CSE-2013. She clearedthepreliminary examinations and went on to participate in the main examinations. As per the W.P.(C) 10164/2018 Page 2 of[9] result declared by the UPSC on 12.6.2014,the petitioner was successful in the main examinations wherein she achieved rank No.527 in the overall merit list and secured a 2^^ rank in the disabled category. Thereafter, the petitioner received a letter dated 03.7.2014 from the respondent No.l informing her that she had to undergo a medical examination on 07.07.2014,to be conducted by a Medical Board ofthe Safdarjung Hospital,Delhi specifically constituted for the said purpose. Upon undergoing the medical examination, the petitioner was informed vide letter dated 19.8.2014 that '^she has been declared both legs affected but not arms with 68% disability. However, as per your examination dossier, you are one leg ajfected. with 50%)disability". Though,the petitioner had an option to prefer an appeal against the findings ofthe Medical Board,no such appeal was preferred by,her.
4. Taking into considefatibn[4].her disability, the respondents allotted the petitioner the cadre ofIndian Revenue Service(Income Tax). It is an admitted position that the petitioner had-joined service in the cadre of the Indian Revenue. After waiting for about three years, in October, 2017, the petitioner filed an Original Application before the Tribunal stating inter alia that the UPSC had issued an advertisement on 31.5.2014, for conducting the Civil Services Examination,2014(in short'CSE-2014'),which entitled a person with locomotor disability in both legs for reservation in the IAS. Contending thatthe aforesaid advertisement issued by the UPSC was published on 31.5.2014, before the final results of the CSB-2013 were declared wherein she had participated, the petitioner pleaded that she ought to have been considered by the respondents against the post reseiwed in the IAS cadre under the locomotor W.P. (C)10164/2018 Page3of[9] Nr.. disability category in the CSE-2013, which had been given to the respondent No.3, Mr. Kuldeep Sharma. The said plea has however been turned down by the Tribunal on the following grounds
Aggrieved by the above.decision:,the present petition has been filed.
5. Learned counsel for the petitioner submits that the Tribunal failed to appreciate that asthe petition^fulfils the physical requirementsfor discharging functions under the IAS cadre,she is entitled for appointmentin the said cadre; that sub categorization ofthe posts reserved for physically handicapped person is impermissible and once the petitioner falls under the category oflocomotor disability, then the respondent No. 1/UOI cannot sub-categorize the same by restricting it to persons with one leg disability only and denying eligibility in respect ofpersons like the petitioner with both legs affected;thatthe petitioner has been performing her duties very efficiently in the Indian Revenue Service cadre and as both the cadres are non-technical posts, she was equally entitled W.P. (C)10164/2018 Page4of[9] X for the IAS cadre.
6. We have heard the learned counsel for the parties and perused the records.
7. It is an admitted position that when the UPSC had issued the Examination Notice for the CSB-2013 on 05.3.2013, the said notice did not include the functional classification of"both legs affected" under the locomotor disability category for allocation ofthe IAS cadre.It is also undisputed that the Medical Board of the Safdarjung Hospital constituted to conduct a medical examination ofthe selected candidates in the CSE-2013 had declared that both legs of the petitioner were effected with 68% disability, contrary to her examination dossier, wherein it was stated that her one leg was affected with 50% disability. The petitioner did not dispute the report of Medical Board though,she was entitlecl to file an appeal againstthe said findings. When in the CSE-2013, UPSC had declated those services that had been identified as suitable for physically disabled categories along with their respective functional classifications and physical requirements and the petitioner did not challenge the said notice, the plea of the petitioner now that she has wrongly been deprived ofthe IAS cadre,is found to be untenable.
8. Having participated in the CSE-2013 in accordance with the Rules and Regulations laid down in the Examination Notice No.04/13-CSP and on being declared successful, having been allocated the IRS cadre, which the petitioner had admittedly joined without reserving her right to challenge the said allocation, she is precluded from laying a claim to appointment in the IAS cadre and thattoo on the strength ofthe Examination Notice No.09/2014-CSP, W.R(C)10164/2018 Page5of[9]
9. That being the positidhV'we do notfind any error in the findings returned by the Tribunal to the effect;,that simply because in the advertisement for the CSE-2014, the UPSC hads carried out some changes in the functional classification oflocomotor disability and had made candidates with disability in both legs,as eligible fontheIAS cadre.A change in the terms and conditions stipulated for the QSE-2014,cannot be a ground for the petitioner to urge that she should be extended the'benefit ofthe said change when her candidature was governed by the Examination Notice No.04/13-CSP declared by the UPSC for the CSE-2013 wherein, the functional classifications for locomotor disability was prescribed forIAS cadre as, disability in oneleg" and notin"both legs".
10. We are also inclined to agree with the observations ofthe Tribunal that the rules ofthe game ofselection cannot be changed mid stream. The decision of the Supreme Court in the case of District Collector and Chairman Vizianagaram (Social Welfare! vs. M.Tripura Sundari Devi reported as 1990 (3)see655,clearly backsthefindings ofthe Tribunalinthisregard. W.P.(C)10164/2018 X X
11. There are a catena of decisions, wherein it has been held that where a selection process is initiated by issuing an advertisementinviting applications, selections should be regulated by the rules and orders then prevailing and that such norms ofselection cannotbe altered after commencementofthe selection process.[Refer: N.T. Devin Katti vs. Kamataka Public Service Commission reported as (1990)3 SCC 157 and A.P. Public Service Commission vs. B. Swapnareported as(2005)4SCC 154]In State ofBihar and Ors.vs.Mithilesh Kumar reported as(2010)13 SCC 467,the Supreme Court reiterated that the rules and regulations relating to,an examination process must control the selection and any alteration/modification ofthe rules for a subsequent year will not affect the continuing.process by giving the same retrospective effect. On this aspect, we may usefully quote a decision of a three-Judge Bench ofthe Supreme Court in the cdse'hftAshok Kumar Sharma and Ors. vs. Chander Shekhar and Anr.repoftedlaS'^997)4SCC 18,wherein it has been observed as follows:-;.
6 The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed X qualification subsequent to such prescribed date cannot be h considered at all. An advertisement or notification issued/published calling for applications constitutes a representationto the public andthe authority issuing itis bound by such representation.It cannotactcontrary to it. One reason behind this proposition is thatifit were known thatpersons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview would be W.P.(C)10164/2018 Page7of[9] H H allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority Judgement "(emphasis added)
12. In the case of State of Gujarat and Ors. vs. Arvindkumar T. Tiwari and Anr., reported as AIR 2012 SC 3281, it was held by the Supreme Court as follows:- "11. A person who does; not possess the requisite qualification cannot even apply Tor recmitment for the reason that his appointment would-be contrary to the statutory rules is, and would therefore,be void in law! Lacking eligibility for the post cannot be cured at any stage;and,appointing such a person would amount to serious illegality ancfridtjhiere irregularity. Such a person cannot approach the court'fdf!any relief for the reason that he does not have a right which can be enforced through court.[See:Prit Singh
V. S.K. Mangal and Ors., 1993(1) SCC(Supp)714 and Pramod
Kumar vs. U.P. Secondarv Education Services Commission & Ors.,(2008)7SCC 153]
13. A similar view has been expressed in Pramod Kumar vs. U.P. Secondarv Education Services Commission reported as(2008)7SCC 153,State ofOrissa vs. Mamta Mohantv reported as(2011)3SCC 436 and Rakesh Kumar Sharma vs. Govt.(NCT ofDelhi)reported as(2013)11 SCC 58.
14. In view of the facts and circumstances of the instant case highlighted above, we decline to interfere in the impugned judgment. The petitioner, who had participated in the CSB-2013 and was allocated the cadre of Indian W.P.(C)10164/2018 Page8of[9] Revenue Service after considering her suitability in the physically disabled category as prescribed for the said examination, cannot lay a claim for being appointed in the IAS cadre by dislodging the respondent No.3, who had participated in the CSE-2013 and was selected in the physically disabled category with a disability in one leg only because the terms and conditions in the CSE-2014 had relaxed the functional classification oflocomotor disability thereby resulting in making candidates with disability in both legs eligible for the IAS Cadre.
15. Accordingly,the present petition is dismissed as devoid ofmerits along with the pending application.: V,. HIMA KOHLI,J SEPTEMBER 26,2018 ap/rkb P LLI,J