Justice Navin Chawla, Justice Renu Bhatnagar, Delhi High Court
Post Reserved For PwBD Candidate Can Be Given To PwD Person Instead Of Surrendering To Unreserved Category: Delhi High Court
|The Delhi High Court said that to serve the mandate and object of the Rights of Persons with Disability Act, the post must be offered to the PwD candidate, in preference to unreserved candidates.
The Delhi High Court observed that the post which has been reserved for PwBD, instead of being surrendered to an unreserved category candidate, to be given to a PwD as this would fulfil the object of the RPwD Act as enunciated in the principles laid down in the UN Convention.
The Appellant, who was a Person with Disability (PwD), was denied employment under the unreserved category on account of his hearing impairment of 17%.
The Bench of Justice Navin Chawla and Justice Renu Bhatnagar observed, “In the present case, while the appellant does not meet the stipulation of medical standards applied to unreserved candidates, can it be said that the mandate of the RPwD Act will be served if the post meant for PwBD candidate, due to non-availability of such candidate, be de-reserved and surrendered to unreserved category candidate rather than being given to the appellant who is a PwD. The answer has to be in the negative, as this would certainly defeat the mandate and object of the RPwD Act. To serve the mandate and object of the RPwD Act, the post must be offered to the appellant who is a PwD candidate, in preference to unreserved candidate.”
Case Brief
The Appellant appeared in the Graduate Aptitude Test in Engineering (GATE) in 2020. However, when he received an interview call from the National Aluminium Company Limited Corporate (NALCO) based on his score in the GATE, the Appellant got to know about his 17% hearing impairment. The Appellant applied for a hearing disability certificate, but, as he did not meet the 40% disability required to be qualified for “benchmark disability”.
Later, the Appellant received a provisional offer for appointment letter for the post of Assistant Executive Engineer (AEE) Instrumentation from the Oil and Natural Gas Corporation Ltd. (ONGC), though his provisional appointment was cancelled due to his hearing impairment. A complaint was also filed by the Appellant at National Human Rights Commission (NHRC).
It was submitted by the Appellant that while fourteen unreserved category posts and nine (9) Persons with Benchmark Disability (PwBD) posts were advertised by the respondents, none of the PwBD posts have been filled. He further submitted that even in the proceedings before the NHRC, it was crystallised that his 17% hearing disability would not hinder his ability to perform the day-to-day function attached to the post of AEE (Instrumentation).
While the Respondent contended that the reasonable accommodation cannot be made in a scenario wherein strict and clear medical standards have been consciously prescribed.
Court’s Observation
While referring to an advertisement, the High Court noted that if the suitable candidates from respective benchmark disabilities are not available, then PwBD candidates of other benchmark disabilities may be considered by interchange of category among identified suitable benchmark disabilities, and if no suitable PwBD candidates even by interchange of benchmark disabilities is available, the carried forward vacancies can be filled up with candidates other than PwBDs.
The High Court emphasised on the provisions of the Rights of People with Disability Act which provides for equality, non-discrimination, reasonable accommodation, and non-discrimination in employment.
Further, the Court opined that the Appellant may not be a PwBD but there was no dispute that, with a 17% hearing impairment, he was a PwD. The Bench said, “To give effect to the mandate of Section 3 and Section 20, it would be in the fitness of things that the post which has been reserved for PwBD, instead of being surrendered to an unreserved category candidate, is given to a PwD, like the appellant. This would fulfil the object of the RPwD Act as enunciated in the principles laid down in the UN Convention and reproduced hereinabove.”
The Court was of the opinion that the mandate of the RPwD Act will not be served if the post meant for PwBD candidate, due to non-availability of such candidate, be de-reserved and surrendered to unreserved category candidate rather than being given to the Appellant who was a PwD.
“To serve the mandate and object of the RPwD Act, the post must be offered to the appellant who is a PwD candidate, in preference to an unreserved candidate”, the Court held.
Thus, the Delhi High Court directed ONGC to consider the appellant as a qualified unreserved category candidate against a post which would otherwise have been unreserved due to non-availability of PwBD candidate.
Accordingly, the Appeal was disposed of.
Cause Title: Ashwin Murli V. Oil and Natural Gas Corporation Ltd. & Ors. (Neutral Citation: 2025:DHC:7544-DB)
Appearance:
Appellant: Mr. Ankur Chhibber, Adv (Amicus Curiae) along with the appellant present in person.
Respondent: Mr.Chetan Sharma, ASG with Mr.Vikramaditya, Mr.Sidhant Kumar, Mr.Om Batra, Mr.Amit Gupta, Mr.R.V. Prabha, Mr.Vinay Yadav, Mr.Naman & Mr.Shubham Sharma, Advs for R-1 & R-2 Mr.Atul Krishna, SPC with Mr.Gokul Sharma, GP for R-3.