Allowed

Vijay Kumar Yadav v. National Mineral Development Corporation Limited

Chhattisgarh HC21 Jan 2024WPS/5639/2017

Case brief

AI extract

What is this about?

This judgment held that the cancellation of the petitioners' candidature due to the State's failure to maintain records of disability certificates was unjust. The court directed the employer to grant employment and awarded compensation to both petitioners.

What did the court decide?

Employment granted; Compensation of Rs. 1,00,000 ordered from Collector and Civil Surgeon.

Vijay Kumar Yadav Vs National… — Constitutional and Fundamental Rights | Chhattisgarh HC (2024)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 5639 of 2017

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Vijay Kumar Yadav S/o Late Indra Dev Yadav, Aged About 36 Years R/o Purana Bhatti Para, Ward No.7, Kirandul, Dantewada, Chhattisgarh. --- Petitioner

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Versus

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National Mineral Development Corporation Limited Through Its Executive Director, Bailadila Iron Ore Mine, Kirandul Complex, District Dantewada, Chhattisgarh, Chhattisgarh

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Manager (Personal), Department Of Administration And Personal, National Mineral Development Corporation, Bailadila Iron Ore Mine, Kirandul Complex, District Dantewada, Chhattisgarh, District : Dantewada, Chhattisgarh

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The Collector, District Sourth Bastar Dantewada, Chhattisgarh, District : Dantewada, Chhattisgarh

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Civil Surgeon Cum Chief Hospital Superintendent, District Hospital Dantewada, District South Bastar, Dantewada, Chhattisgarh, District : Dantewada, Chhattisgarh --- Respondents.

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With

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WPS No. 5650 of 2017

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Mahesh Ram S/o Shri Mahangu Ram Podiyam Aged About 41 Years R/o Qtr No. I/13, Block Colony, Dantewada, District Dantewada Chhattisgarh, Chhattisgarh --- Petitioner

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Versus

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National Mineral Development Corporation Limited Through Its Executive Director, Biladila Iron Ore Mine, Kirandul Complex, District Dantewada Chhattisgarh, Chhattisgarh

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Manager (Personnel), Department Of Administration And Personal, National Mineral Development Corporation, Biladila Iron Ore Mine, Kirandul Complex, District Dantewada Chhattisgarh

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The Collector, District South Bastar Dantewada Chhattisgarh.

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Civil Surgen Cum Chief Hospital Superintendent, District Hospital Dantewada, District South Bastar Dantewada Chhattisgarh

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--- Respondents.

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(Cause title downloaded from CIS periphery)

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--------------------------------------- For Petitioners	------ :	--------- Mr.	----------------------------------------- Shishir Dixit, Advocate.
For Res No.1 & 2	:	Mr.	Vaibhav Shukla, Advocate.
For Res No.3 & 4/State ------------------------------------------	: --------	Mr. ---------	Rajeev Bharat, GA --------------------------------------------

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Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board

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22.01.2024

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Since in both the petitions common question of law and facts are involved, they are being heard and decided analogously.

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These writ petitions have been filed challenging the impugned orders dated 02.09.2017 (Annexure-P/8 in WPS No.5639/2017 & Annexure-P/12 in WPS No.5650/2017 respectively), whereby, respondent No.1/National Mineral Development Corporation Limited (for short the “ NMDC ”) has withdrawn and cancelled the candidature of the petitioners from the post of Miscellaneous Attendant (Trainee) on the ground that disability certificates submitted by them in pursuance of Employment Notification No.5/2015 issued on 29.09.2015 have not been verified by the Issuing Authority i.e. District Medical Board, Dantewada.

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Brief facts of the case are that the respondent No.1/NMDC conducted the special recruitment drive for Persons with Disabilities (PWDs) in Group “D” for the post of Miscellaneous Attendant (Trainee) on 29.05.2015 vide Employment Notification No.05/2015. In pursuance of such notification, petitioner Vijay Kumar Yadav has submitted disability certificate in this regard which was issued in his favour on 13.11.2006 (Annexure-P/5 in WPS No.5639/2017), whereby, he was having 40% locomotor disability and reassessment of disability is recommended after 3 years. Likewise, petitioner Mahesh Ram in WPS No.5650/2017 has also submitted his disability certificate vide Annexure-P/6 which was issued on 13.11.2006, whereby, he was having 40% disability of hearing impairment/deafness and no recommendation for reassessment has

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been made and same has been issued for lifetime.

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After selection of the aforesaid petitioners, enquiry was conducted by the Department of respondent No.1/NMDC wherein it has been revealed that the certificates of the petitioners were not certified or verified by the concerned Medical Board. Therefore, respondent No.1 has constituted a committee for verification from the Office of Civil Surgeon. The office of Civil Surgeon, District South Bastar Dantewada has informed to respondent No.1 that the verification records of the disability certificate are not available in their office therefore, the same could not be verified. Further, show cause notices were issued to the petitioners seeking their clarification on account of non submission of verified disability certificate. The petitioners submitted their reply stating that the disability certificate submitted by them were issued in a Camp held at Nagar Palika Parishad. Along with said reply, petitioner Mahesh Ram submitted fresh disability certificate issued on 06.04.2017 and petitioner Vijay Kumar Yadav also submitted a fresh disability certificate issued on 28.03.2017. However, in view of terms and conditions of the said Advertisement, as the certificates were issued after the date of selection, the same were not considered by the respondent/Authorities.

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On 24.04.2014, respondent No.1 again sent a letter to the concerned Civil Surgeon Dantewada regarding authenticity of Camp organized by Nagar Palika Parishad. In reply to the same, on 18.05.2017, the Civil Surgeon, Dantewada sent a memo/letter informing that for issuing a disability certificate, a Camp was organized at Magal Bhawan Dantewada which was approved by the

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Collector. It was also stated that in respect of disability certificate issued by Nagar Palika Parishad on 13.11.2006, no official record is available in their office. It was further stated that the copy of disability certificate is illegible, therefore, the same could not be verified and concerned persons (petitioners) may appear before the District Medical Board and after examination they may approach for obtaining fresh disability certificate. It has also been clarified that the certificate which has been issued in favour of the petitioners could be utilized for employment purpose for the limited period.

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Respondent No.1 further sent a letter to the office of concerned District Collector on 30.05.2017 and, in turn, the Collector, District South Bastar Dantewada vide its letter dated 21.07.2017 confirmed that records of camps are not available. After the aforesaid scrutiny, respondent No.1 vide impugned order dated 02.09.2017 while observing that the disability certificate submitted by the petitioners at the time of submission of their application has not been verified by the District Medical Board, Dantewada, cancelled their candidature.

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Learned counsel for both the petitioners submits that the petitioners are resident of Tribal area of Bastar and in their area, the State had organized a Camp for issuing certificate in favour the persons with disabilities. In the said Camp, the petitioners also visited and after due physical examination disability certificates were issued in favour of the petitioners and said certificates have not been disputed by respondent No.1 during the selection of the petitioners and they were short-listed for the concerned post. He would also submit that during the verification of said disability certificate, the State machinery and the office of Civil Surgeon Dantewada failed to

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maintain their records though in the said Camp authorized and qualified doctors were deputed/posted who have examined the petitioners and they have not doubted the genuineness of the said certificates. However, due to negligence on the part of the State machinery in keeping or maintaining the records of the disability certificates, the petitioners have suffered a lot and they are continuously pursuing their grievances before the respondents/Authorities. He further submits that the State is very much sensitive about the welfare policy and they organize camps to help the persons with disabilities and respondent No.1 also with a view to promote such policy in their organization initiated a special recruitment drive and published employment advertisement on 29.09.2015. He also submits that there is no dispute with regard to their disability, however, the petitioners are facing difficulties for last several years just because of technicalities. He places reliance on the judgments rendered by Hon’ble Supreme Court in the matters of Divya Vs. Union of India and Ors¹ and Charles K. Skaria & Ors Vs. Dr. C. Mathew and Ors² to submit that the petitioners were duly qualified at the time of selection and their eligibility was not in dispute at that time. He submits that in view of the aforesaid, the respondent/Authority may be directed to grant employment to the petitioners and compensation may also be given to the petitioners for the agony suffered by them due to callous approach adopted by the Officers of the respondents/State.

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On the other hand, Shri Shukla, learned counsel for respondents No.1 and 2 submits that there is no dispute with regard to disability

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1 2023 SCC OnLine SC 1305

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2 (1980) 2 SCC 752

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of the petitioners and during the period of selection process between 15.02.2016 and 19.02.2016, the disability certificates were produced by the petitioners and on the medical examination the petitioners were short-listed. However, since respondent No.1 was not aware about the authenticity of the disability certificate, as per regular process, the said certificates were sent to the concerned Office i.e. Civil Surgeon, Dantewada for verification. Even a team has also been sent to the said office. Apart from this, the concerned District Collector has also sent a letter to verify such certificates but due to non availability of the records conerning the certificates issued under the said Camp, the same could not be verified by the State Authorities. He submits that when the concerned State Authority has not given opinion with regard to genuineness of the said certificate, candidature of the petitioners was cancelled by the impugned orders in accordance with the selection process. He also submits that genuineness of the said certificates cannot be determined by this Court and this Court cannot exercise its power under Article 226 of the Constitution of India to relax any condition stipulated in the advertisement and places reliance on the judgment rendered by Hon’ble Supreme Court in the matter of A. M. Vadi Vs. India Trade Promotion Organisation and anr³ . He further submits that it is well settled law that selection process has to be conducted strictly in accordance with the stipulated selection procedure which needs to be scrupulously maintained and there cannot be any relaxation in terms and conditions of advertisement unless such power specifically reserved in relevant rules and/or in advertisement. He places reliance on the judgment rendered by Hon’ble Supreme Court 3 1994 Supp (2) SCC 667

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in the matter of Bedanga Talukdar Vs. Saifudaullah Khan and Ors⁴ . He lastly submits that, apart from the aforesaid, the petitions suffer from non-joinder of the necessary parties who were selected for the said post. He submits that, in view of the above, these petitions deserves to be dismissed.

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Learned counsel for respondents No.3 and 4/State supports the contention made by Shri Vaibhav Shukla, Advocate. He fairly submits that at the time of verification, relevant material was not available in the office of Civil Surgeon, Dantewada and no entry was available in the official record, therefore, said certificates could not be verified. He submits that immediately after receiving notice from respondent No.1, the petitioners approached the office of Civil Surgeon and thereafter they appeared before District Medical Board where they have been re-examined and as per requisite norms, certificates have been issued in their favour regarding disability with more than 40 %, however, said certificates were not considered by respondent No.1.

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Heard learned counsel for the parties and perused the material available with the petitions.

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10.The Rights of Persons with Disabilities Act, 2016 was enacted with laudable object to give effect to the United Nations Convention on the Rights of Persons with Disabilities, whereas, the United Nations General Assembly adopted its Convention on the Rights of Persons with Disabilities on the 13^th day of December, 2006; and whereas the aforesaid Convention lays down the following principles for empowerment of persons with disabilities:-

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4 (2011) 12 SCC 85

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“(a) respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons

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(b) non-discrimination;

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(d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

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(e) equality of opportunity;

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(f) accessibility;

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(g) equality between men and women;

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(h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities”

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11.Further, to implement resolution of the aforesaid Convention, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 was enacted to give effect to Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. The Act further defines Persons with Disabilities as those having not less than forty percent disability and identified seven categories of disabilities, namely, blindness, low vision, hearing impairment, locomotor disability, mental retardation, mental illness and leprosy-cured.

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12.The State in order to achieve the object of social justice is also very well concerned about aforesaid issues and to help the persons having disabilities the State had duly organized Camps. In such camps, the petitioners after due physical examination were issued disabilities certificates and they had produced the same at the time of selection process and during the said selection also, the

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respondent No.1/NMDC did not dispute the genuineness of the certificates. Even submission of counsel for the respondents finds support from the fact that along with candidates, the petitioners were short-listed during the period 15.02.2016 to 19.02.2016 and they had submitted their disability certificates. However, when their disability certificates were sent for verification and the same could not be verified for one or the other reason. Respondent No.4 - Civil Surgeon, South Bastar, Dantewada issued a letter on 18.05.2017 stating that said Camps were duly organized at Magal Bhawan Dantewada and same were constituted by the Collector and records of the said Camps are not available in their office, therefore, the certificates of the petitioners could not be verified. It is further stated in the said letter that the said certificates were issued at the Nagar Palika Parishad and the petitioners were directed to appear before the District Medical Board and they may approach the concerned authority to get fresh disability certificates.

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13.It is pertinent to mention here that the petitioners obtained fresh certificates having disability of more than 40% as required under the said recruitment rules. However, due to negligence on the part of the State Authorities, particularly, respondent No.4, Civil Surgeon and respondent No.3 – the Collector, disabilities certificates issued in favour of the petitioners could not be verified and for this reason, respondent No.1 has cancelled the candidature of the petitioners, though they were selected as per terms and conditions of the Advertisement. Therefore, no dispute or ambiguity appears in respect of disability certificates of the petitioners. Even otherwise, father of the petitioner Mahesh Ram is also an employee of

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respondent/NMDC and they themselves referred the petitioner – Mahesh Ram for medical treatment of his disability to other hospitals vide Annexure-P/11 and the same also shows the condition of the petitioner. Further, the State Machinery has failed to verify the certificates of the petitioners due to non maintenance of records, therefore, this Court has no doubt that the certificates were issued in regular manner and subsequently, on the basis of medical examination by the District Medical Board, fresh disabilities certificates were again issued in favour of the petitioners. In the said examination, petitioner Mahesh Ram was found having 70% disability of hearing impairment and petitioner Vijay Kumar Yadav was found having 50% locomotor disability, thereby, they fulfilled the requisite norms, however, despite such efforts, they did not get benefit of the same.

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14.Moreover, the case laws relied upon by respondent No.1 are not applicable to the facts of the present case, therefore, they are of no help to respondent No.1

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15.The aforesaid analysis speaks volume that there was no fault on the part of the petitioners/candidates and the State authorities are at fault for not keeping the relevant records of Camps organized for issuing disability certificates, on account of which, the petitioners had to endure years of torment and their candidature got cancelled.

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16.In such circumstances, this Court is of the opinion that the petitioners have established good case in their favour and they deserve to be compensated by the State Officers who are responsible for such negligence, so that they may remain more alert and vigilant for the persons suffering from disabilities.

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17.The respondent No.3 – the Collector, District South Bastar, Dantewada and respondent No.4 – Civil Surgeon, District South Bastar, Dantewada shall pay Rs.1,00,000/- (Rupees One Lac), in aggregate, to each of the petitioners as compensation within a period of 90 days from the date of receipt of a copy of this order, failing which, the petitioners shall be entitled for interest on the said amount @ 12 % per annum from the date of filing of this petition i.e. 24.10.2017.

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18.Further, respondent No.1/NMDC is directed to grant employment to the petitioners within a period of 90 days from the date of receipt of a copy of this order in pursuance of Employment Notification dated 29.09.2015. If the said posts have been filled, supernumerary posts shall be created for the said purpose. It is further directed that seniority of the petitioners shall be placed below the last candidate of the said cadre.

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19.Before parting with the case, this Court deems it appropriate to observe that the concerned Secretary of Social Welfare Department may issue appropriate direction to each Janpad/District Panchayat/Municipality to conduct survey of persons having disabilities by inviting forms/application or by any of the modes. Looking to the nature of disabilities of the candidates particularly the extent of disability, facilities extended by the State like monetary benefits, medical treatment, employment, incentive for marriage etc. be given to such persons. Further, their proper identification with Adhar Card, Voter ID, Birth details or any other data available with such persons may be kept in the concerned offices and same be updated from time to time. The same be also published with a note

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that any person may file objection against genuineness of any certificate/entry before the concerned Officer notified in that behalf. The Secretary Health Department, CG may also issue suitable direction to all Civil Surgeons/concerned Officers of the State for maintaining the records of the certificates issued by the District Medical Board or the Camps organized by the State Authorities and such certificates be also uploaded with relevant details on the internet on their respective Websites, so that any person having disability for more than 40 % would not suffer and would not require to run from pillar to post for its verification and to avoid undue benefits of the same by person not having such disability.

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20.With the aforesaid direction and observation, this petition stands disposed of.

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21.A copy of this order be sent to the respective respondents for necessary information and compliance.

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Sd/-

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(Deepak Kumar Tiwari) Judge

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Ajay

Vijay Kumar Yadav v. National Mineral Development Corporation Limited

Case brief

What is this about?

What did the court decide?

Vijay Kumar Yadav v. National Mineral Development Corporation Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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