GENERAL MANAGER NORTHERN RAILWAY AND ORS. vs. VINAY KUKAR & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+ Date of Decision: 19.08.2014


% W.P.(C) 5111/2014 & C.M. Nos.10185-87/2014

UNION OF INDIA & ORS.
..... Petitioner
Through: Mr. V.S.R. Krishna with Mr. J.K.
Singh, Advocates

versus

TARA CHAUHAN & ANR.
..... Respondent
Through: Mr. S.K. Rungta, Sr. Adv. with Mr.
Prashant Singh, Ms. Heena Dua and
Ms. Pratiti Rungta, Advocates


W.P.(C) 5146/2014
GENERAL MANAGER NORTHERN RAILWAY AND ORS
..... Petitioner
Through: Mr. V.S.R. Krishna with Mr. J.K.
Singh, Advocates

versus

VIRENDER
..... Respondent
Through: Mr. S.K. Rungta, Sr. Adv. with Mr.
Prashant Singh, Ms. Heena Dua and
Ms. Pratiti Rungta, Advocates


W.P.(C) Nos.5111/2014, 5146/2014 & 5162/2014 Page 1 of 10



+ W.P.(C) 5162/2014

GENERAL MANAGER NORTHERN RAILWAY & ORS.
..... Petitioner
Through: Mr. V.S.R. Krishna with Mr. J.K.
Singh, Advocates

versus

VINAY KUKAR & ORS.
..... Respondent
Through: Mr. S.K. Rungta, Sr. Adv. with Mr.
Prashant Singh, Ms. Heena Dua and
Ms. Pratiti Rungta, Advocates

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI

S. RAVINDRA BHAT, J. (OPEN COURT)

1. Issue notice. Mr. Prashant Singh accepts notice. With the
consent of counsel, these petitions have been heard finally.
2. The Union of India and the Northern Railways are aggrieved by
the order of the Central Administrative Tribunal (CAT/ Tribunal)
dated 13.03.2014 in O.A. No.467/2014 (hereafter referred to as the
"main order"). In the other two petitions, the grievance is in respect
of two orders of the Tribunal, which have followed the main order.

3. These orders had, in effect, directed the Northern Railways to
earmark 1% quota for blind and low-vision candidates in compliance
with Section 33 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights & Full Participation), Act 1995 (hereafter
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referred to as the Disabilities Act). A further direction enjoining the
Northern Railways to forbear from excluding 100% visually impaired
candidates from selection and appointment was also issued.
4. The respondent/applicants approached the Tribunal
complaining that the advertisement issued on 30.12.2013, calling for
applications for a total of 5679 vacancies in 13 cadres in the Northern
Railways, was contrary to the provisions of the Disabilities Act. It
was contended that within the 3% quota earmarked for such
candidates (further sub-divided into 1% for the visually handicapped,
hearing impaired and orthopedically handicapped each), categories
are not being notified appropriately. The specific grievance
articulated was with respect to the identification of 100% visually
handicapped candidates as ineligible from applying for posts, except
that of cook. The relevant provision in the advertisement stated as
follows:
“ 4. Persons with Disabilities (PWD)
PWD candidates will be valid only if the disability form
is issued on Annexure-4.
Definitions of Disabilities in details has been uploaded
on website. Concerned candidates are requested to
please go through it before filling up their application
form. Posts reserved for PWD.

W.P.(C) Nos.5111/2014, 5146/2014 & 5162/2014 Page 3 of 10

Abbreviations used : OH – Orthopedically Handicapped,
OL- One Leg, OA – One Arm, BL – Both leg, HH –
Hearing Handicapped, VH – Visually Handicapped, LV –
Lower Vision B-Blind ”.
5. The Tribunal upon an analysis of previous orders in O.A.
No.3493/2011 (which stood affirmed by this Court in Pankaj Kumar
Srivastava v. UPSC & Anr. ), concluded that the notified vacancies in
various categories had, in fact, been a subject matter of exercise of
identification and that the exclusion of 100% blind candidates from
posts, except the post of Cook would, therefore, be contrary to law.
The Tribunal also took note of a previous advertisement of the
Northern Railways of 2010, whereby these posts were included and
made available for 100% blind candidates too, and directed as
follows:

“ 17. Therefore, we conclude that by debarring the blind
people in 2013 advertisement, the respondents have
indeed done injustice to the applicants and this needs to
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be rectified. We, therefore, set aside the advertisement to
the extent it excludes the blind from consideration for
appointment to other posts except Cook and direct the
respondents to consider the blind also for appointment to
other posts advertised, if they are selected. In this
regard, they may issue a corrigendum that blind and low
vision candidates are also eligible to apply, within 15
days from today and definitely well before the
examination commences ”.

6. It is contended on behalf of the Railways that the impugned
order is untenable and requires to be set aside. It is argued, firstly,
that the Tribunal could not have relied upon the 2010 advertisement,
because the circumstances had clearly changed. In this context, it was
submitted that the Ministry of Social Justice and Empowerment had
conducted an elaborate exercise of identifying various posts within
the Central Government in terms of Section 33 of the Disabilities Act.
Learned counsel relied upon the notification dated 29.07.2013
constituting the committee and the terms thereof, which are a part of
the record. He points out that the report of the committee was taken
into consideration by the Northern Railways while framing the
advertisement, and identifying the distinct posts for which appropriate
category or categories of candidates with disabilities could apply.
7. It was pointed out with reference to the list of posts identified
by the report itself that since a conscious policy choice or decision
had been taken by the Northern Railways, the Tribunal ought not to
have relied upon the so-called past instance – which was bereft of any
reasons, and in that instance, the recruiting agency did not have the
W.P.(C) Nos.5111/2014, 5146/2014 & 5162/2014 Page 5 of 10



benefit of such input. It was also urged that even on a bare look at the
report itself, it would indicate that at least three posts – Gateman,
Lineman and Trackman were not identified in the list prepared by the
committee as being available to 100% visually handicapped persons.
The non application of mind by the Tribunal is, therefore, writ large
on the face of the record and the impugned order requires to be set
aside.
8. Mr. S.K. Rungta, learned senior counsel appearing on behalf of
the respondent/applicant-caveators, argued that the impugned order
should not be interfered with. He submitted that the Tribunal applied
its mind and concluded contrary to the assertions of the petitioner as is
evident from the discussion made in para 5 of the impugned order in
the main case. It was argued that even an independent examination of
the report of the committee would establish that most of the posts –
save the appointments to gateman, lineman and trackman, were duly
considered by the committee and notified as capable of being manned
by blind and low vision candidates. Learned counsel also highlighted
that the proviso to Section 33 of the Disabilities Act – in addition to
the other conditions, empowered the establishment – an expression
that includes Government Department and agencies – to seek
exemption in respect of one or the other category of posts. Learned
counsel submitted that such power of exemption has not been invoked
in this case.
9. Referring to the Supreme Court judgment in Union of India &
Anr. v. National Federation of the Blind & Ors ., (2013) 10 SCC 772 ,
W.P.(C) Nos.5111/2014, 5146/2014 & 5162/2014 Page 6 of 10



it was argued that the reservation under the Disabilities Act has to be
in respect of the total or aggregate number of vacancies, and that a
further demarcation of 1% for each category has to be fulfilled. The
question of accommodating the concerned candidates in one or other
posts would thereafter arise.
10. It is evident from the above discussion that there is no debate or
controversy with respect to the manner in which the 3% vacancies
directed by the provisions of the Disabilities Act have to be worked
out. A series of judgments of the Supreme Court – the latest being in
National Federation of the Blind (supra) have concluded the issue;
all establishments are bound to work out or calculate the 3%
reservations on the basis of the total vacancies irrespective of the
identification of posts. Such being the case, the next level of scrutiny
required is whether the exclusion of a particular post or group of posts
or cadre from the purview of the Disabilities Act – in respect of all
kinds of disabilities or some of them, is backed by any rationale. The
above discussion would show that unlike the 2010 instance, where
apparently no exercise has been resorted to, the current advertisement
had the benefit of the notification of the committee dated 29.07.2013,
which identified the various posts across the establishment of Union
of India, its department and agencies.
11. It is evident that this notification nowhere extends the
reservation to low vision or blind category of candidates with 100%
visually impaired, to posts such as Gateman, Lineman and Trackman.
Such being the case, this Court is of the opinion that the Tribunal
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could not have given the wide-ranging directions that it did. In the
circumstances, the order of the Tribunal calls for modification on this
aspect.
12. So far as the question whether the description of Khalasi
Helper, Carriage Cleaner, Safaiwala etc. correspond to any of the
posts identified within the notification is concerned, this Court is of
the opinion that this aspect would be best left to the determination by
the appropriate authorities in order to avoid any controversy or
confusion. Accordingly, we direct the concerned authority constituted
by the law i.e. the Chief Commissioner of Disabilities to determine as
to which of the posts advertised by the Northern Railways on
30.12.2013, save and except that of Gateman, Lineman, Trackman
and Cook (which have already been identified in the notification dated
29.07.2013) correspond to the identified posts vide notification dated
29.07.2013. The Chief Commissioner shall be assisted by the
concerned officials of the Indian Railways. It is open to the Chief
Commissioner to consider the views of any other interested parties
who may wish to address the issue.
13. In the light of the above discussion, the following directions are
hereby issued:
i) The Tribunal’s order to the extent which directs appointment of
the applicants to the categories of Gateman, Lineman and
Trackman pursuant to the advertisements in question in the
present case is hereby set aside;
ii) The Chief Commissioner of Disabilities shall, after taking into
W.P.(C) Nos.5111/2014, 5146/2014 & 5162/2014 Page 8 of 10



account the notification dated 29.07.2013 and consulting the
Northern Railways and considering the views of the other
interested parties, furnish his report as to the equivalence of the
posts which are the subject matter of the present case, and
whether they are covered by the notification dated 29.07.2013
in respect of low vision and 100% blind category candidates.
This report shall be furnished within eight weeks from today.
iii) The Northern Railways shall keep 1% of the entire vacancies
notified pursuant to the advertisement dated 30.12.2013
unfilled till the aforesaid process is completed.
iv) The process of filling up the 1% reserved posts shall be
completed pursuant to the report, after which the results in
respect of those category of candidates would be declared and
appropriate consequential orders of appointment etc. shall be
undertaken. This direction will apply in W.P.(C.)
Nos.5146/2014 and 5162/2014.
v) So far as the applicants in W.P.(C.) No.5111/2014 are
concerned, since the recruitment process of the common test
etc. have not yet been undertaken, the petitioner/Northern
Railways is hereby directed to accept the applications of 100%
blind category candidates and allow them to participate in the
recruitment test. Their results, as well as those of the low
vision category candidates, shall not be declared in the 1%
reserved category under the Disabilities Act, and shall be
subject to the final determination by the Chief Commissioner as
W.P.(C) Nos.5111/2014, 5146/2014 & 5162/2014 Page 9 of 10



directed by this Court.
vi) In case of candidates of low vision and blind category applying
for and participating in any selection process and finding a
place in the merit list (i.e. other than under reserved categories
under the Disabilities Act or any other kind of reservation),
their results will be announced and the appointment process be
undertaken in accordance with the prevailing regulations and
office memorandum.

vii) Subject to the above directions, result of candidates in respect
of all other vacancies (except of the categories mentioned
above) shall be declared.
14. The entire process of completion of selection and recruitment
shall be undertaken within three months from today.
15. The writ petitions are disposed of in the aforesaid terms.
16. Order dasti to the parties.

S. RAVINDRA BHAT, J

VIPIN SANGHI, J
AUGUST 19, 2014
sr

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