Percentage Of Disability Less Than The Benchmark Level Would Not Render Meritorious Disabled Candidate Unfit For Job: Rajasthan High Court
The Jodhpur bench of the Rajasthan High Court imposed cost of Rs. 50,000 on Oil and Natural Gas Corporation Limited (ONGC) for rejecting the candidature of a person with disability, who was otherwise declared meritorious in the selection process, certifying him as medically unfit for suffering 30% visual impairment.
In doing so the court observed that candidate's rejection merely because he suffered disability lower than minimum degree of disability of 40% i.e. benchmark disability was an illegal action by ONGC.
The division bench of Chief Justice Manindra Mohan Shrivastava and Justice Munnuri Laxman held that once a post was declared to be suitable for a particular kind of disability, a candidate suffering from such disability could not be declared medically unfit, if otherwise, s/he was meritorious, just because s/he was disentitled for claiming reservation since their percentage of disability was lesser than the benchmarked percentage for claiming reservation.
It further said:
The illegal action of the appellants has left Respondent No. 1-writ petitioner in lurch by cursing the nature for giving him lesser injury or impairment. If Respondent No. 1-writ petitioner would have suffered from higher degree of disability, i.e., 40%, he would have been considered for appointment against the posts reserved for physically handicapped candidates. Though, below benchmark disability may disentitle a candidate for being considered against the posts reserved for physically handicapped candidates, once the post is identified for a particular kind of disability, there is no question of treating such candidate medically unfit. Learned Single Judge has rightly observed that Respondent No. 1-writ petitioner would relentlessly repent and think- 'Alas! I was more disabled.'
The court reiterated the spirit of the Rights of Persons with Disabilities Act, 2016 (“2016 Act”) and observed that sometimes these principles were difficult to be operated on ground realities due to attitudinal behaviour and an approach lacking sensitivity. It was opined that public functionaries were required to be sensitive and objective while dealing with persons with disabilities.
“While dealing with persons with disabilities, a public functionary is required to act with higher degree of sensitivity, objectivity and in furtherance, not only laws, but also the spirit of the Act of 2016. Equality of treatment is not merely a statutory right, but a fundamental right which is at stake in the present case. Denial of such right not only violates the Constitution or Statue, but also the basic human right of specially abled persons to live with dignity.”
Background
The observations came in an appeal filed by ONGC against an order of the single judge in a writ petition filed by the respondent.
The respondent is a person with a disability (PwD) having 30% impairment in his left eye and he had applied for the post of Materials Management Officer pursuant to an advertisement by ONGC. The advertisement mentioned reservation against 19 posts for persons with disability and mentioned the categories of disabilities that were considered suitable for the post.
The mentioned categories included people with low vision. However, since the benchmark percentage of disability to claim the disability reservation was 40%, the respondent did not claim reservation. He appeared meritorious and was offered an appointment subject to submission of certificate of medical fitness by the medical officer of ONGC.
In the medical examination, owing to 30% impairment in left eye, he was treated as medically unfit and was not allowed to join. A representation was made by the respondent to ONGC which was rejected. This rejection was challenged in a writ petition by the candidate.
A singe judge of the High Court ruled in the favour of the respondent and opined it to be a case of discrimination on ground of the disability and violation of not only the RPwD Act but also human as well as constitutional rights of the respondent. This order of the single judge was challenged by ONGC before the division bench of the high court.
The appellant ONGC argued that when the respondent candidate in his application form offered his candidature for appointment to the post of Materials Management Officer, he did not claim benefit of reservation as physically handicapped candidate as his disability was not up to the benchmark disability to entitle him to claim consideration against the posts reserved for physically handicapped category. Therefore, he had to be considered as a candidate belonging to OBC category subject to his medical fitness. When he was medically examined, visual impairment to the extent of 30% was detected by the medical board. Therefore, he could not be considered for appointment because persons suffering from disability of various kinds are entitled to be considered for appointment only against the posts reserved for physically handicapped candidates and not outside those posts. It was submitted that while submitting his application form, the candidate never claimed reservation as person belonging to physically handicapped category/disabled category as he only claimed reservation as OBC candidate.
It was submitted by the counsel for the respondent that since 19 seats were reserved by the person with disabilities, it reflected that such categories of persons with disabilities were medically fit for the posts despite suffering from the disability barriers. Hence, just because the respondent was not entitled for the reservation, his right to be considered as a normal candidate based on merit could not be denied.
After hearing the contentions from both sides, the Court completely aligned with the ruling of the single judge as well as the arguments put forth on behalf of the respondent and held that,
“The concept of reservation of posts in public employment for the persons with disabilities is a statutory scheme as provided in the Act of 2016. Identification of certain posts for being filled from amongst certain categories of persons with disabilities is a statutory declaration that the disability does not come in the way of discharging duties and functions assigned to a post qua which the disability has been identified. Whether or not reservation is provided, such identification of posts renders persons with disabilities as identified physically and medically fit for appointment irrespective of reservation benefits.”
In this background, the Court further ruled that if a person with disability did not meet the requirement of benchmark disability for being a disabled to a lower percentage, even though s/he was not entitled for reservation, s/he could not be considered medically unfit. It was held that to conclude otherwise was completely illogical and “perilously borders perversity”.
“It defies all logic and reasoning that though a person suffering from benchmark disability of 40% may be offered appointment against the posts reserved for physically handicapped category, a candidate of the same category with lower degree of disability is treated as medically unfit. Such a candidate may not be entitled to benefit of reservation under physically handicapped category, nevertheless in view of the statutory declaration by the appropriate Government that the posts can be filled up and occupied by persons of particular disability, the medical board cannot again consider him/her medically unfit to occupy the post merely because he/she has not claimed appointment against reserved category posts. That is completely illogical and, if we may say so, perilously borders perversity,” it said.
The Court highlighted the achievements of the respondents and held that his efforts in education and competition were a motivation that disability was not be taken as a curse. However, as rightly pointed out by the Single Judge, the decision reached by ONGC was like rubbing salt on respondent's injury making him repent and wish to have been more disabled than 30%.
In this light, the petition was allowed while imposing the cost on ONGC to be payable to the respondent. The Court held that it was hoped and trusted that ONGC would act free from attitudinal barrier while dealing with persons with disabilities.
Title: Oil and Natural Gas Corporation Limited & Anr. v Ranjan Tak & anr.
Citation: 2024 LiveLaw (Raj) 378