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2014 DIGILAW 287 (UTT)

Vikas Kumar v. Union of India

2014-08-01

SUDHANSHU DHULIA

body2014
Judgment Sudhanshu Dhulia, J. 1. The petitioner is a visually impaired person, belonging to a Scheduled Caste community. He is blind by birth. He applied as a visually impaired Scheduled Caste candidate for the post of Probationary Officer, which was for the various Nationalised Banks, where the examination was conducted by a body known as “Institute of Banking Personnel Selection” (hereinafter referred to as “IBPS”) which has its Head-Office in Bombay. He has been declared successful in the examination and appointed as a Probationary Officer. Yet he is not able to join his post. Hence this writ petition. The following are the admitted facts of the case. 2. The online application form was filled by the petitioner for the aforesaid post in March 2012. All the same, the online application form was being filled on the instructions of the petitioner through someone else, which is understandable as the petitioner is a visually impaired person. There a slight mistake was committed, while filling this form. In the application form the petitioner applied as a visually impaired person belonging to the Other Backward Class (in short “O.B.C.”) and not as a Scheduled Caste candidate. 3. The petitioner was given his online admit card for the said examination, which had its centre at Dehradun, in Uttarakhand. When the petitioner obtained his online admit card he discovered the mistake in his application form, which he had submitted online, where he had mentioned his category as O.B.C. visually impaired, though he was Scheduled Caste and therefore, he immediately tried to rectify this mistake with I.B.P.S. Subsequently, the petitioner appeared in the written examination at Dehradun on 17.06.2012 in which he was declared successful in the O.B.C. category as visually impaired person. The petitioner has obtained 51% marks in the examination which is higher marks obtained by the last (Scheduled Caste visually handicapped) as well as OBC (visually handicapped) candidate. Therefore, whichever way we look at it, or treats the petitioner, he has to be declared successful, the counsel for the petitioner would submit. 4. Being a successful candidate, the petitioner was called for the interview. The interview was held at Dehradun on 17.01.2013. At the time of his interview the petitioner again submitted all his documents pertaining to a visually impaired person as well as documents relating to his caste i.e. Scheduled Caste. 4. Being a successful candidate, the petitioner was called for the interview. The interview was held at Dehradun on 17.01.2013. At the time of his interview the petitioner again submitted all his documents pertaining to a visually impaired person as well as documents relating to his caste i.e. Scheduled Caste. It is again an admitted fact that the petitioner was allowed to give the interview where again he was declared successful. Since admittedly the petitioner is a Scheduled Caste candidate all his documents which he had shown at the time of his interview were that of a Scheduled Caste candidate. No objections were raised at that time. 5. The difficulty came when he was given his appointment letter and asked to join his Office at Union Bank of India, (F.G.M. Office), Union Bank Bhawan, IInd Floor, Vibhuti Khand, Gomti Nagar, Lucknow as a Probationary Officer. When he went to the said Office to give his joining, the joining was not given to him for reasons that he had submitted Scheduled Caste certificate whereas his selection had been made on an OBC category! The petitioner tried to reason out with the aforesaid authority, but all in vain. Aggrieved the petitioner has filed the present writ petition before this Court. 6. Initially before this Court there was no one to represent the IBPS/respondent no. 2. Notices were sent to the respondents and Mr. Arvind Vashisth, is now representing the IBPS as well. He has filed a counter affidavit on behalf of IBPS as well. 7. Meanwhile, after hearing the rival parties at some length an interim order was granted by this Court on 02.05.2014. The operative portion of the same reads as under:- “In view thereof, as there is an undue harassment to the petitioner at this stage, an interim mandamus is issued to respondent No. 4 – i.e. the In-charge Officer of Union Bank of India, Lucknow (F.G.M. Office), Union Bank Bhawan, IInd Floor, Vibhuti Khand, Gomti Nagar, Lucknow to forthwith give joining to the petitioner on O.B.C. post, for which he was selected. Whether he has to ultimately join as an O.B.C. candidate or as a Scheduled Caste candidate, will be subject to the final determination of this writ petition, as would be other aspects. List this matter on 28.05.2014 in the daily cause list. Whether he has to ultimately join as an O.B.C. candidate or as a Scheduled Caste candidate, will be subject to the final determination of this writ petition, as would be other aspects. List this matter on 28.05.2014 in the daily cause list. On the next date of listing the petitioner shall apprise this Court as to whether he has been given joining by the Officer concerned, in compliance of this Court’s order, or not. In the meantime, the respondents may file counter affidavits.” 8. This interim order was challenged by the Union Bank of India in Special Appeal (no. 209 of 2014) which was disposed of vide order dated 27.05.2014, and the matter was remanded back by the Division Bench by passing the following orders:- “We stay the operation of the order, inasmuch as, on 28th May, 2014, learned Judge has fixed the matter for final disposal. We are of the view that once a mistake has been accepted by the respondent/petitioner, the question is, whether he can correct the mistake after having had responded to the advertisement. This aspect of the matter will be gone in when the matter will be listed for hearing on 28th May, 2014, when it shall be open for the learned Judge to decide the matter finally without being influenced by this order. 2. Having had passed this order, we dispose of the Appeal.” 9. The matter is now being heard on merits. The only issue for determination of this Court is whether the apparent mistake, in fact the admitted mistake, on the part of the petitioner in filling up the form as an OBC candidate (though he was a Scheduled Caste candidate), could at all be rectified or not? According to the respondents this mistake in the application form once committed could never be rectified! Learned counsel for the respondents further submits that this fact was also well advertised and therefore, since no rectification was possible, this cannot be done in any manner. 10. According to the respondents this mistake in the application form once committed could never be rectified! Learned counsel for the respondents further submits that this fact was also well advertised and therefore, since no rectification was possible, this cannot be done in any manner. 10. For the moment even if we leave aside the admitted disability of the petitioner and examine the case independent of it, we find that the mistake was timely sought to be rectified by the petitioner, when he received his “admit card”, and the fact that the petitioner was permitted to appear in the written test as well as the interview after examining his credentials would reflect that the “mistake” was rectified, or at least condoned, and rectifications made. 11. Moreover, the Petitioner has received 51% marks which are higher than the last successful candidate both the OBC as well as SC category for visually impaired. So whichever way one looks at it or treats the petitioner (whether an OBC or SC), the fact of the matter is that he stands selected. 12. Since the mistake which was rectified by the conduct of the respondent i.e. the authorities which conducted this examination, it is wrong on the part of the Bank (to which the petitioner has been selected) to harp again on the inadvertent mistake of the petitioner, and deny joining to him. This would be wrong in every sense. 13. Moreover the petitioner is visually impaired person and is protected by a Parliamentary legislation known as “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” which primarily mandates that the State Authorities will try to remove hindrances which come in the way of a physically or visually challenged person and “create barrier free environment for persons with disabilities.”* 14. In the present case a visually impaired person has been put to an unnecessary difficulty and hardship for the slight mistake on his part. He has also been drawn to this litigation. The respondents who are “state instrumentalities” have caused undue harassment to the petitioner. In a modern democracy, governed by principles of fair play and justice, persons in authority, by their deeds should mitigate the hardships of those who are already facing a challenge. * Taken from the “Statement of Objects and Reasons” of the Bill, introduced in the Lok Sabha on 26.08.1995. In a modern democracy, governed by principles of fair play and justice, persons in authority, by their deeds should mitigate the hardships of those who are already facing a challenge. * Taken from the “Statement of Objects and Reasons” of the Bill, introduced in the Lok Sabha on 26.08.1995. In the present case, men in authority have instead aggravated this hardship by their action, demonstrating total apathy. 15. This writ petition therefore succeeds. A mandamus is issued to the respondents to forthwith give joining to the petitioner on the post of Probationary Officer at Union Bank of India, Union Bank Bhawan, IInd Floor, Vibhuti Khand, Gomti Nagar, Lucknow to which he was selected, and in case such post has been filled, they must give him a posting to another suitable place. 16. To set the record straightening since the petitioner is a Scheduled Caste he shall be treated to be a visually impaired person belonging to Scheduled Caste. 17. Having made the above determination, where this Court is convinced that after having been selected and appointed as a Probationary Officer, the petitioner who is visually challenged had to undergo hardship, being driven to this wholly unnecessary litigation, he should be meaningfully compensated. This Court has been informed that, the petitioner would have joined his duties on 15.04.2013, had he not been denied joining. Therefore, it will be deemed that the petitioner has been given his joining and will be given all benefits including 50% of the arrears of his salary from 15.04.2013, within a period of two months from the date of production of a certified copy of this order.