Santosh Kumar Panigrahi v. P. Narayanan, Chief General Manager, HRMD, Nabard
2005-07-20
B.C.PATEL, SANJAY KISHAN KAUL
body2005
DigiLaw.ai
Sanjay Kishan Kaul, J. 1. The petitioner is a visually-impaired person, who has a L.L.B. Degree and is' stated to be currently pursuing his Ph.D. from Jawaharlal Nehru University, New De1hi. The petitioner is aggrieved by non-compliance of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act, 1995 (hereinafter to be referred to as, 'the said Act') and its consequences for the petitioner and similarly' situated persons. 2. The said Act was enacted as a social legislation in view of the international commitments of India being a signatory to Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region in December, 1992. Chapter VI of the said Act deals with the issue of employment. Thus, Section 32 of the said Chapter provides for identification of posts, which can be reserved for persons with disabilities and Section 33 provides for reservation of posts of not less than three per cent for the persons or class of persons with disabilities with one per cent reservation each from the following categories:(i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy. 3. The petitioner has impleaded by name certain Officers of NABARD and State Bank of India.' The grievances arises from separate advertisements issued by the two institutions for filling up vacancies to posts at Officer level. NABARD had advertised for four visually-impaired candidates. The petitioner's grievance is that after participation in the examination, it has come to his know ledge that none of the visually-impaired candidate was selected even for the interview. Similarly, insofar as the State Bank of India is concerned, an advertisement was issued for recruitment to the post of Probationary Officers in 2003 and one per cent of the vacancies were reserved for visually-impaired candidates. The grievance again made is that the petitioner and the other candidates were not selected and no appointment has been made in the said category. The petitioner has also alleged that the State Bank of India has decided not to employ visually-impaired people for the post and this is not permissible in law in view of the said Act. 4.
The grievance again made is that the petitioner and the other candidates were not selected and no appointment has been made in the said category. The petitioner has also alleged that the State Bank of India has decided not to employ visually-impaired people for the post and this is not permissible in law in view of the said Act. 4. In view of these grievances, the following prayers have been made: "(a) issue an order or direction directing the Respondents to publish the results of the Petitioner and other similarly placed visually handicapped candidates and in the meantime grant stay of the process of recruitment. (b) issue an order or direction directing the Respondents to conduct interview for the Petitioner and other visually handicapped candidates similarly placed. (c) direct the Respondents to reserve the required number of posts as applicable under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 for the Petitioner and other candidates similarly placed. d) direct the Respondents to give damages ancVor exemplary costs to the Petitioner. (e) pass any other appropriate order or direction as may be deemed fit and proper in the facts and circumstances of the case." 5. It is important to note that both the set of respondents have raised a preliminary objection about the territorial jurisdiction. It has also been stated that there is efficacious alternative remedy available under the said Act by approaching the Chief Commissioner. N ABARD has denied that none of the visually-impaired candidate was called for interview and has given details of such candidates numbering seven, who were called for the interview. Not only that, an additional affidavit was filed stating that four candidates were, in fact, selected and three of those have been appointed, while one of the candidates declined the appointment. 6. Insofar as the State Bank of India is concerned, apart from raising the preliminary objections, as stated above, it has been submitted that the said Bank, in fact, represented to the Government on 16.08.2003, prior to filing of the writ petition, for exemption under proviso to Section 32 of the said Act from appointing visually-handicapped persons. It is, however, not in dispute that such exemption has not been granted, though the contention of learned senior counsel for the petitioner is that this shows the attitude of the Bank.
It is, however, not in dispute that such exemption has not been granted, though the contention of learned senior counsel for the petitioner is that this shows the attitude of the Bank. It is admitted that none of the visually-impaired candidates were selected for the second round of examination, but it is stated that such process is carried out by an independent agency. It is, however, submitted that persons have been appointed in the other two categories. 7. In the affidavit filed by the State Bank of India, it has been emphasised that concessions have been specifically accorded to the candidates with visually impairment in view of section 30m of he said Act, which requires suitable modification in the examination to eliminate purely mathematical questions for benefit of such students. The concessions are stated as under : "(a) The candidates were given relaxation of 10 years which was allowed on cumulative basis along with the permissible age relaxation given to various reserved categories. (b) The pattern of the Question Paper for the Visually Handicapped candidates was modified and they were exempted from attempting those questions which were (i) Purely mathematical in nature; and (ii) Purely graphical (visual) in nature. The candidates were awarded marks for such questions based on the overall average marks otherwise obtained by them in the test. (c) The candidates suffering from blindness / low vision were permitted to use a scribe and were also provided extra time of 0 minutes per hour or part thereof for writing the examination as per the guidelines laid down by the Government." 8. In so far as the appointment of persons with various kinds of disability is concerned, the following data has been given :- Total Physically Challenged Employees - - OH DD VH Total Officers 212 5 --- 217 Clerks 601 60 50 711 Sub-staff 162 29 8 199 9. Since a grievance is made in respect of declaration of results, it is stated that the successful candidates who completed stage of the recruitment process, their names had been displayed on the Bank's website as well as advertised in the leading newspapers. The successful candidates were advised individually through call letters. A similar kind of process was followed by stage II.
The successful candidates were advised individually through call letters. A similar kind of process was followed by stage II. It is emphasised that the examination is conducted by an independent body, namely, the Institute of Banking Personnel Selection and, thus, there can be no question of interference with the process .of selection by anyone in the Bank. 10. Insofar as the issue of territorial jurisdiction is concerned, the plea of the State Bank of India is based on the existence of the Institute of Banking Personnel Selection at Mumbai and the petitioner taking the examination from Bhubaneshwar Centre. It has been 'stated that the Chief General Manager at New Delhi had nothing to do with the process and the mere fact that the petitioner is pursuing further studies at Delhi cannot be a ground to invoke the jurisdiction of the Delhi High Court. 11. The affidavit of NABARD also states that the petitioner took examination at Bhubaneshwar both at the preliminary and the main examination stage. The application itself mentioned that in case of any dispute, the jurisdiction would be in Mumbai 90urts and despite this fact, the petition had been filed at Delhi. 12. The only plea advanced by learned senior counsel for the petitioner is that since these examination processes are conducted all over the country and a selected candidate can be posted 'in any part of the country, the candidate can approach any Court of his convenience. It was also submitted that the fact that the petitioner was pursuing his further studies at Delhi make the Delhi Courts convenient Forum. 13. Both learned senior counsel for the parties relied upon Judgment of the Apex Court in Oil and Natural Gas Commission v. Utpal Kumar Basu & Anr., (1994) 4 SCC 711 . A reading of the said Judgment shows that the Apex Court has deprecated the practice of a High Court entertaining petitions merely because the petitioner resides within its territorial jurisdiction even though no cause of action arose within its jurisdiction. In view of these observations, the said Judgment can be of hardly any assistance to learned senior counsel for the petitioner.
In view of these observations, the said Judgment can be of hardly any assistance to learned senior counsel for the petitioner. Learned senior counsel for the petitioner, however, further submitted that taking into consideration the fact that the present petition is not a motivated one and the handicap with which the petitioner suffers, the petition should be not thrown out on the technical ground of jurisdiction. We have grave doubts whether this Court would have territorial jurisdiction in such a situation given the observations of the Apex Court, however, despite this fact, we even considered the grievances of the petitioner in view of the nature of prayers, made and the petitioner being a person with disability. 14. A specific query was posed to learned senior counsel for the petitioner as to which of the reliefs would survive for consideration. It is obvious that prayer (a) relates to publication of the result of the petitioner and other similarly placed visually-impaired candidates – the results have been declared. Prayer (b) relates to the conduct of interview for the petitioner and other such candidates - the occasion for the same does not arise since the petitioner has not been successful and the successful candidates have been interviewed and some of them have' been appointed by NABARD. Prayer (c) relates to the reservation of required number of posts - both the respondents have srated that they would adhere to the reservation and are, in fact, following that process. 15. It may be noted that originally the petition was filed apparently for the individual grievances. However, after a number of dates and hearing of the matter on 18.08.2004, learned senior counsel for the petitioner submitted that the petition is really in the nature of a public interest litigation (PIL). Learned senior counsel for the petitioner states that the submission is same today and the petitioner is not interested in the individual relief. 16. The relevant fact is that the prayers made in the petition, whether in individual capacity or in representative capacity, have worked themselves out. No relief survives for consideration. In fact, on 07.12.2004, a detailed order was passed' on the submission of the parties after the provisions of Section 33 and 36 of the said Act were noticed.
16. The relevant fact is that the prayers made in the petition, whether in individual capacity or in representative capacity, have worked themselves out. No relief survives for consideration. In fact, on 07.12.2004, a detailed order was passed' on the submission of the parties after the provisions of Section 33 and 36 of the said Act were noticed. It has been observed that if, nobody is selected, the vacancy would be carried forward and that at most, the petitioner can make contention on his own behalf. 17. Faced with the aforesaid situation, learned senior counsel for the petitioner stated that some facts have only come to the light in the affidavits filed by the respondents and he would make an oral prayer to amend the petition. It was, however, not stated as to what would be the nature of relief claimed. Not only this, the affidavits have been filed as far back as in February, 2005 and the proceedings have been held even thereafter. The petitioner and, the counsel were in full knowledge of the stand of the respondents. No application for amendment was made. It is no answer to our query that the counsel had not occasion to see these affidavits for all this period of time and only saw these affidavits recently or that recently no contact has been established with the petitioner. If certain amendments were to be made, the matter should have been prosecuted with due diligence in this behalf. An oral prayer for amendment without even stating the particulars is vague. We are also unable to accept the plea of learned senior counsel for the petitioner that the last prayer of "appropriate order or directions as may deem fit and proper in the facts and circumstances of the case" is wide enough. If some relief is incidental to the main prayers, it can' be considered, but in the present case, no grievance of the petitioner can be made out. This Court cannot sit in appeal over the process of selection by independent bodies where there is no mala fide attributed. Merely because SBI wanted exemption from reservation, which was not granted by the Central Government, cannot imply that the process is flawed. 18. In view of the aforesaid, we are of the considered view that the present petition really does not survive for consideration even on merits. 19.
Merely because SBI wanted exemption from reservation, which was not granted by the Central Government, cannot imply that the process is flawed. 18. In view of the aforesaid, we are of the considered view that the present petition really does not survive for consideration even on merits. 19. Before parting with the matter, we must emphasise that the State Bank of India and NABARD must make every endeavour to ensure that vacancies, if any, are duly filled up at the earliest in respect of the seats reserved under the said Act'. The State Bank of India must take due care to act promptly, especially in view of the fact that no visually-impaired candidate has been appointed at the Officer level and, thus, every endeavour should be made to fill up the vacant post with meritorious candidates from the reserved category of visually-impaired persons and even other reserved seats, if any, for the other two categories should be filled up at the earliest. 20. The writ petition is disposed of in the aforesaid terms leaving the parties to bear their own costs.