WP(C) No.

4576/2005
IN THE HIGH COURT OF DELHI AT NEW DELHI

WP (C) No. 4576 of 2005

Pronounced on : December 20, 2007

20.12.2007

Krishan Kumar .....Petitioner

through : Mr. V.S. Tomar, Advocate

VERSUS

Secretary, Govt. of NCT of Delhi and Ors. .....Respondents

through : Ms. Avnish Ahlawat with
Ms. Latika Chaudury and
Mr. Nidhi Jain, Advocates

CORAM :-
THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether Reporters of Local papers may be allowed to see the Judgment?

2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?

A.K. SIKRI, J.
1.The petitioner claims that he is a physically handicapped person and is
entitled to the benefits of benevolent legislation i.e. Persons with Disability
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
(hereinafter referred to as the 'Disability Act'). His qualifications are MA
(Physical Education) from Choudhary Charan Singh, Haryana Agriculture
University Sports College, Hissar. Section 33 of the Disability Act provides
for 3% reservation of posts in public employment for candidates suffering
from disability mentioned in Section 2(i) of the said Act. It is for this reason
that when Delhi Subordinate Services Selection Board (for short 'DSSSB')
advertised posts for inviting applications for the post of various teachers,
including four posts of Physical Education Teacher (PET) for physically
handicapped persons in March 1999, the petitioner also applied for the said
post in the aforesaid reserved category. He emerged successful in the said
selection and was issued appointment letter dated 23.12.1999. The petitioner
joined as PET at Government Boys Senior Secondary School, Shakarpur,
Delhi on 13.1.2000. On 23.5.2000, he was transferred to GBM School,
Sultanpuri, Delhi.

2. While working in this school, the Deputy Director of Education (Admn.

Branch), Govt. of NCT of Delhi (respondent No.3 herein), issued him a show-
cause notice dated 21.12.2000 stating therein that the petitioner was not
eligible to be appointed to the post of PET as a handicapped person and,
therefore, as to why his services should not be terminated as it was detected
that he was not possessing the educational qualifications required for the
post. He submitted his reply dated 23.12.2000. However, no action on the said
show-cause notice was taken. Instead, after a gap of 2? years, the petitioner
was served with another memo dated 23.6.2003 calling upon him to submit
his representation along with all the relevant documents in support of his
claim that he was an eligible candidate and was rightly selected to the post.
The petitioner responded vide reply dated 7.7.2003. After a lapse of four
months, memo dated 10.11.2003 was issued to him giving him another
opportunity to explain his position. The petitioner submitted yet another
reply on 22.11.2003. After considering these explanations, the respondent vide
orders dated 26.4.2004 terminated his services on the ground that the
petitioner did not possess the essential qualification prescribed for the post in
question and the qualification possessed by him, i.e. Bachelors of Sports
Humanities, cannot be equated with the qualifications prescribed for the post
as per the recruitment rules. The respondents were also of the opinion that
the petitioner was disabled to the extent of 65%, thus, rendering him
incapacitated to impart training to the students. On this basis the respondents
concluded that the petitioner was wrongly appointed and his appointment
was against the notified recruitment rules as also DoPT instructions dated
28.2.1986 and 25.11.1986. These were the reasons which became cause of
termination of the services of the petitioner.
3. Feeling aggrieved, the petitioner filed OA under Section 19 of the
Administrative Tribunal Act before the Central Administrative Tribunal,
Principal Bench, New Delhi. However, his attempt in the said OA has turned
out to be futile as the Tribunal had dismissed the said OA. Not satisfied the
petitioner has assailed that judgment in the present petition preferred under
Article 226 of the Constitution of India.

4.One can discern from the narration of facts mentioned above that two
issues arise for consideration, namely :-
(1) whether the petitioner does not possess the essential qualifications
prescribed for the post in question; and
(2) whether he is incapacitated to impart training to the students because of
his disability? If so, what would be the consequence?
While dealing with these questions, we may take note of the contextual fact
and materials.

5. Issue No. 1 ? Whether the petitioner does not possess

the essential qualifications prescribed for the post in
question?
As per the recruitment rules notified for the post of PET a
candidate is to possess the following qualifications :-

"(a). The incumbent should be a graduate from a

recognized university with Diploma in Physical Training
from a recognized institution/university.
Or
(b). B.P.Ed. from recognized university and higher
secondary.
Or
(c). B.Sc. (Physical Edn. Health and Sports) or its
equivalent from recognized university/institution."

6. The petitioner is a Bachelor of Sports Humanities and he

also passed MA (Physical Education) from CCS, Haryana
Agriculture University, Hissar in the year 1996. It is clear
from the above that there are three alternate
qualifications provided in the recruitment rules to make a
candidate eligible to the post of PET. According to the
respondents, qualifications possessed by the petitioner did
not conform to the recruitment rules as Bachelor of Sports
Humanities cannot be regarded equivalent to any of the
aforesaid three qualifications. It is mentioned in the
termination order dated 26.4.2004 that the curriculum at
graduate level is altogether different than the course
contents in diploma and physical education course and
this is the reason because of which the respondents
maintained that the petitioner does not fulfill the requisite
qualifications.

7.The learned Tribunal referred to and relied upon the

judgment of the Supreme Court in the case of Director,
AIIMS and Ors. v. Dr. Nikhil Tandon and Ors., (1996) 7
SCC 741 wherein the Court has held that mere equivalence
is not enough and the qualification must also be
recognized as equivalent. ?Recognized evidently means
recognized by the Institute or at least by the Medical
Council of India?. The Tribunal was of the opinion that
qualification possessed by the petitioner could not be
treated as equivalent to that of the one prescribed for the
post of PET in the absence of any order/notification issued
by the Government to that effect. This approach, according
to us, is wholly fallacious. The recruitment rule, inter alia,
requires that the incumbent should be a graduate from a
recognized university with major in physical and
Education, Health and Sports from a recognized
institution. What is of relevance is that the candidate
should have acquired a graduation degree, and whether it
is a B.Sc. Degree or a B.A. Degree is not of essence.
Admittedly, the petitioner had a Bachelors degree in
Sports Humanities and a M.A. /post graduation degree in
Physical Education. In our view he is sufficiently qualified
under Clause (c ) as aforesaid. It is not the case that the
Haryana Agriculture University, Hissar is not a
recognized institution/university. In fact, it is a university
run under the control of the State of Haryana and is duly
recognized. The question of 'equivalence', therefore, did
not arise in this case at all.
8. Issue No. 2 - Whether he is incapacitated to impart
training to the students because of his disability? If so,
what would be the consequence?
It is not in dispute that the petitioner suffers from
disability which is covered by the Disability Act. He had
submitted a medical certificate from the Medical Board,
Civil Surgeon, Bhiwani (Haryana) mentioning the
weakness of his right upper and right lower limb on
account of depressed fracture of skull resulting in 65%
handicap. This disability of the petitioner is even not in
dispute. However, the case made out by the respondents
for terminating the services of the petitioner was that this
kind of disability makes him incapacitated to impart
training to students in drill, physical education, various
games i.e. hockey, cricket, volleyball and handball etc.
According to the respondents, a PET who is himself
disabled to the tune of 65% cannot deliver goods to the
school children who are before him for their physical
development when the appointment is considered qua the
education and welfare of children. The petitioner cannot
be thought of providing all round development of various
faculties of the children.

9.Challenging the aforesaid ground to terminate his

services, the petitioner had relied upon a Division Bench
judgment of this Court in Govt. of NCT of Delhi v. Bharat
Lal Meena and Anr., 100 (2002) DLT 157. The Tribunal,
however, distinguished the said judgment on the ground
that in the case of Bharat Lal Meena and Surinder Singh,
who were also appointed as physical education teachers,
they were already possessing the requisite qualifications
attached to the post of PET but their services were
terminated because the Government felt that as physically
handicapped persons they cannot perform their duties
properly. The Tribunal further opined that in the case of
the petitioner he had acquired the disability after getting
the degree of Bachelors of Sports Humanities. This is
hardly any ground which provides justification for
distinguishing the judgment. It is not in dispute that the
petitioner was appointed along with Bharat Lal Meena and
Surinder Singh as PET. It is also not in dispute that he was
physically handicapped and was entitled to apply for the
post of PET under the quota meant for persons suffering
from disability. Once it is held that the petitioner was
having requisite qualifications for the post, it would hardly
be a reason to distinguish his case from the case of Bharat
Lal Meena and Surinder Singh on the spacious plea that
those two persons acquired the qualifications after
suffering disability whereas the petitioner suffered the
disability after getting the degree. Two things are
mutually exclusive. As far as disability is concerned, it has
to be in existence at the time of applying for the post. It
has nothing to do with attaining the qualifications.
Whether these qualifications are obtained before or after
suffering the disability is totally immaterial. The
observations which were made by this Court in the case of
Bharat Lal Meena (supra) to the effect that in spite of
disability the said
persons acquired the qualifications were in the context
that the disability could not deter them from pursuing
their education and acquisition of necessary qualifications.
Otherwise, the principle which was laid down in the said
judgment was that once the post of PET is reserved for
disabled person and a suitable candidate, conforming to
the qualifications and disability norms under the Act, is
duly selected for the post, his services cannot be
terminated on the ground that he is not fit to impart
physical education to the students.

10.In the said judgment, the Division Bench has traced out
the history of legislation, i.e. the Disability Act, and the
purpose for which the Act was enacted, namely, to give
succor to the persons suffering from disability and treat
their rights as human rights. After tracing out the history,
factual matrix of the said case is discussed. Since Bharat
Lal Meena and Surinder Singh were appointed along with
the petitioner herein against the same advertisement and
same selection process against the four posts reserved for
handicapped persons and Shri Meena was not allowed to
join the post and services of Surinder Singh were
terminated after issuing show-cause notice, as in the case
of the present petition, the factual matrix narrated in the
said judgment regarding the advertisement, various
Government orders, etc. on this subject would have same
bearing. We, therefore, deem it proper to extensively
quote from the said judgment the following portion which
applies to the present case on all folds :-

"20. In the aforementioned backdrop of events, we may consider the factual

matrix of the matter.

The advertisement dated 6.3.1999 published in Dainik Jagran, Delhi is in the

following terms :

Post Code SR./Group

Post/Name of Department
No. of Posts
Pay Scale
Age Limit (Year)
Educational Qualification and Experience
74/1999 Group-'B'
Physical Education teacher, Directorate of Education, Govt. of NCT Delhi
143 (Unreserved 66, OS-17 (sports)
OS-4 (sports) ST-7
OS-2 (sports)
OBC ? 25 Physically handicapped (visually handicapped-4) are included
5500-9000
30 male
40 female
Diploma from any recognized Institute/ University in P.E.T. along with
graduation from any recognized University, CPL from any recognized
Institute
recognized by the Directorate CBSE..
Translated True Copy from Hindi to English

21. The Joint Secretary, Ministry of Personnel, Public Grievances and

Pensions (Department of Personnel and Training) issued an order dated
20.4.1998 being S.O. 332 (E) whereby and whereunder classification of posts
was linked with their salary payable, which reads thus :

? ORDER
New Delhi, the 20th April, 1998.
S.O. 332 (E). In exercise of the powers conferred by the proviso to Article 309
and Clause (5) of Article 148 of the Constitution read with Rule 6 of the
Central Civil Services (Classification, Control and Appeal) Rules, 1965 and in
supersession of paragraph 2 of the notification of the Government of India in
the Deptt. Of Personnel and Administrative Reforms No. S.O. 5041 dated
11.11.1975 as amended by the notification of Ministry of Personnel Public
Grievances and Pension (Deptt. Of Personnel and Training) number SO 1752
dated 30th June, 1987, and after consultation with the Comptroller and
Auditor General of India in relation to persons serving in the Indian Audit
and Accounts Deptt. the President hereby directs that with effect from the
date of publication of
this order in the Official Gazette, all civil posts under the Union shall be
classified as follows :-

Sl. No.
Description of Posts
Classification of Posts
1.
A Central Civil post carrying a pay or a scale of pay with a maximum of not
less
than Rs.13,500/-
Group A
2.
A Central Civil post carrying a pay or a scale of pay with a maximum of not
less
than Rs.9,000/- but less than Rs.13,500/-
Group B
3.
A Central Civil post carrying a pay or a scale of pay with a maximum of over
Rs.4,000/- but less than Rs.9,000/-

Group C
4.
A Central Civil post carrying a pay or a scale of pay the maximum of which is
Rs.4,000/- or less
Group D

Explanation : For the purpose of this order -

(i) 'Pay' has the same meaning as assigned to it in FR 9(21) (9) (a) (1);

(ii) 'Pay or scale of pay' in relation to a post, means the pay or the scale of any
of the post prescribed under the Central Civil Services (Revised Pay) Rules,
1997.

22. The Central Government in exercise of its power conferred upon it under
the provisions of the said Act identified jobs, which were capable of being
held by physically handicapped persons vide entry Nos. 56 to 58 and 64 to 67,
as noticed hereinabove. The respondents come within the classification of OA
and MW, which are :

?Code Functions
.... .... .... ....

OW(v) one arm affected (R or L) -

(a) impared reach;

(b) weakness of grip;
(c) ataxia;

.... .... .... ....

MW(viii) muscular weakness and limited physical endurance?

23. The aforementioned OM dated 28.2.1986 contains a list of jobs identified

for being held by physically handicapped persons. Its physical requirements
and the categorization of disabled persons suitable therefor and also been
indicated therein. A bare perusal thereof leads us to the conclusion that the
post of Higher Secondary and Secondary School Teacher (in short, 'HSSST')
is one of the posts identified for the said purpose. Orthopedically
handicapped persons constitute one of the categories, which are found
suitable
for job of the said post of HSSST, as would appear from entry at S.No. 56
aforementioned.

The submission of Ms. Ahlawat, in the aforementioned situation, that the

posts relate to teaching subject, cannot be accepted inasmuch as from a
perusal of entry at S.No. 58, which refers to the post of HSSST,
orthopedically handicapped persons also constitute a category, who are found
suitable therefor. As the post of PET is not included in entry at S.No. 56, they
would be deemed to
have been included in the entry at S.No. 58.

24. The letter dated 6.6.2002 issued by the Deputy Chief Commissioner is in
the following terms :-
?6.6.2000 (sic)
F.No. 82/CCD/99/6020

Clarification regarding appointment of Orthopedically Handicapped persons

to the post of Physical Education Tr.

Dear Sir,

Please refer to your letter No. DE.4(3)/PET/EIV/2432 dated 24.4.2000 in the

above captioned subject.

As per the present arrangement for effecting reservation in Group 'A' and 'B'
identified jobs for the disabled, it is not possible to appoint any category of
persons with disabilities to the post of Physical Education Teacher in the pay
scale of Rs.5500-9000.

Yours sincerely,
(Anuradha Mohit)?

25. We may notice that an Expert Committee appointed by the Ministry of

Social, Justice and Empowerment dealt with the matter of identification of
posts in Groups 'A', 'B', 'C' and 'D' for reservation. The said Committee in its
report notified by the said Ministry vide their Notification dated 31.5.2001
made the following recommendations :

?(b) The nomenclature used for respective jobs in these recommendations

shall also mean and include any nomenclature used for the comparable post
with identical function of the identified post.

(c) ....However, no establishment on its own discretion can exclude any post
out of the purview of identified post for effecting reservation under Section 33
of the Act. In case any establishment feels that it required exemption from
filling up a vacancy against an identified post by the appropriate Government
the establishment under Section 33 of PWD Act, 1995 can approach the inter-
departmental committee constituted for the purpose to look into the matter
regarding exemption from Section 33 of the PWD Act. Other than this no
authority has the jurisdiction to accord exemption from filling up a vacancy
against an identified post for persons with disabilities.

(d) List of the identified jobs proposed to be notified herein under is in

addition to and not in derogation of the earlier list published by Ministry of
Personnel Public Grievances and Pensions, Department of Personnel and
Training, Government of India in the year, 1986. This is in accordance with
Section 72 of Persons with Disabilities Act, 1995.

(e) If at any stage due to change in the pay scale of a post, identified for
persons with disabilities gets shifted from one group or grade to another
group or grade the post shall remain identified for the purpose of effecting
3% reservation. For example the post of post graduate teacher, if at the time
of identification of post for persons with disabilities is a group 'B' post but
due to some policy change if the same post is reduced to Group 'C' the same
shall remain identified though its pay scale and grade has been changed.?

From a bare perusal of the said recommendations of the Expert Committee, it

is clear that a Department or an Establishment can be exempted from filling
up a vacancy of physically handicapped person only after the appropriate
Government has considered the report of an inter-departmental committee
constituted for the purpose and further no authority, not even the Chief
Commissioner, has any
jurisdiction to accord an exemption.

CONCLUSION :
26. In this view of the matter, in our opinion, the learned Tribunal has rightly
held that the letter of the Chief Commissioner of Disabilities dated 6.6.2000
was an invalid document. The said letter was not issued upon giving an
opportunity of hearing to the respondents herein. The respondents have
questioned their order of termination and/or non-allowing them to join their
duties and as such they cannot be held to be aware of the said letter dated
6.6.2000 issued by the Chief Commissioner. The said letter was not necessary
to be specifically questioned in the writ petition, as has been submitted by
Ms.Ahlawat.

It will bear repetition to state that exception, if any, must be provided in

terms of the proviso appended to Section 33 of the said Act and not otherwise.

27. Furthermore, the findings of the learned Tribunal are fortified by the fact
that in the event in physically handicapped persons were totally debarred
from becoming PET, such a restriction ought to have been placed if they
would not have been admitted to the said courses of studies at all.

28. In the aforementioned situation, it was the duty of the petitioner herein to
issue necessary instructions. A person after acquiring a degree, which is
necessary for holding the jobs of the post of PET, cannot at a later stage be
told that he is not otherwise suitable. It is for the institutions to see as to
whether the disability of the persons concerned would be such so as to disable
him from performing his duties for which he had been taking training. Once
they have passed the examination, it must be held that they were physically
fit to perform their duties and any report of any Committee or clarification
made by the Commissioner contra shall not be relevant for the
aforementioned purpose."

11.We do not see any reason not to apply that judgment in the case of the
petitioner as well. Consequently, we hold that termination of services of the
petitioner vide order dated 26.4.2004 is clearly unjust, illegal and arbitrary.
The petitioner herein was duly selected against the post. He joined the
services as PET on 13.1.2000. Almost more than 11 months thereafter he was
issued show-cause notice on 21.12.2000. The matter kept on lingering and the
termination order was issued only on 26.4.2004 By that time, the petitioner
has rendered more than 4 years of service as PET. The termination of
services of a handicapped person, like the petitioner, after his due selection on
the aforesaid grounds amounts to adding insult to his injuries. It is not a case
where the petitioner had suppressed either his qualifications or the extent of
his disablement. With open eyes these aspects were examined by the
respondents before consideration of the petitioner's candidature. Not only he
was treated to have been eligible for the post with requisite qualifications, but
after the
selection process he was also considered fit for the said post. Taking a
somersault thereafter and grounding him on the premise that he is himself a
physically challenged person and, therefore, cannot give physical education to
the students is inadmissible. We also feel that having this consideration in
mind the respondents tried to find loophole in the educational qualifications
of the petitioner by coming out with the plea that he does not conform to the
recruitment rules. It was too late in the day to deny his eligibility when at the
time of considering his candidature the respondents allowed him to
participate in the selection treating that he is having requisite qualifications
for the post as per the recruitment rules.

12.We accordingly set aside the impugned judgment of the Tribunal as well
as the termination order dated 26.4.2004 and direct the respondents to
reinstate the petitioner in service with all consequential benefits. If at all, the
respondent could give him light duties having regard to his disablement but
could not terminate the services after selecting him and allowing him to work
for more than four years.

13. With these directions, this writ petition is disposed of.

(A.K. SIKRI)
JUDGE
(VIPIN SANGHI)
JUDGE
December 20, 2007
nsk
Unreportable

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