Jaswinder Kaur vs Union of India

Hemant Gupta, J.—Challenge in the present writ petition is to an order passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh on 29.03.2010 (Annexure P-18), whereby an Original Application filed by the petitioner for appointment to the post of Telecom Technical Assistant (TTA) remained unsuccessful.

On 23.09.2007, an advertisement was published by the Bharat Sanchar Nigam Limited (for short ''the Nigam'') inviting applications for the post of Telecom Technical Assistants in the Punjab Telecom Circle. The educational qualification for the said post was (a) three years Engineering Diploma in Telecommunications Engineering/Electronics Engineering/Electrical Engineering/Radio Engineering/Computer Engineering/Instrument Technology; or (b) a candidate possessing higher qualification like B.E. and B. Tech in the same stream; or (c) M.Sc. (Diploma). Out of 36 posts meant for Hoshiarpur District, 3 posts were reserved for Physically Handicapped category, but without specifying as to which category of physically handicapped persons are eligible to apply or for which the posts are reserved. The petitioner, who applied as a physically handicapped candidate, was successful in the examination. The petitioner was called upon to furnish medical fitness certificate. The said communication refers to a letter dated 18.10.2001 determining the posts reserved for Visual, Locomotive and Hearing impaired physical disabled candidates including for the post of Telecom Technical Assistant. The petitioner was declared medically fit with the endorsement to ''consider the case as per Government Rule'' vide certificate Annexure P-9 issued by the Civil Surgeon, Hoshiarpur. Circular (Annexure P-10) is the decision dated 18.10.2001, which finds mention in the letter written to the Civil Surgeon for medical examination of the petitioner. As per the opinion of the Civil Surgeon, Hoshiarpur, the right eye of the petitioner is blind and left eye vision is 6/18 i.e. out of 7 lines of the disclosed vision chart, she can only read upper 4 lines from a distance of 6 meter and that she is found to be visually 40% handicap.

Such circular was issued subsequent to a constitution of a Committee to identify posts for the purpose of 3% reservation for physically handicapped persons for all cadres. The post of TTA falls in Category-I. Such post is not reserved for Visual handicapped person, but is reserved for Locomotive handicapped person such as one armed affected; both legs affected, but no arms; & limited exercise to tolerance etc. The partial deaf persons were also eligible under the Hearing Disability category. However, reservation was provided for Visual Impaired candidates in Category-II posts consisting of Stenographer/Personal Assistants as well as Category-III consisting of Translator, Peon and Sweeper. The Circular dated 18.10.2001 was subsequently amended on 21.04.2003 (Annexure P-11), when reservation for Visual Impaired candidates was fixed in certain other categories of posts falling in Category II.

Since the petitioner was not offered appointment for the reason that the post of Telecom Technical Assistant was not reserved for Visually Impaired Physically Handicapped category, the petitioner invoked the jurisdiction of the Tribunal. The Tribunal dismissed the Original Application preferred by the petitioner noticing that the petitioner has disclosed a disease as ''Amblyopia Phythsym '' in the application form. Such disability does not indicate the kind of handicap the petitioner was suffering from to a common man. It was found that it is unfortunate that the applicant had to go through the mental agony of first receiving the offer and then being denied the appointment.

Learned counsel for the petitioner has vehemently argued that the petitioner was offered appointment against one of the post reserved for Visually Handicapped. The post is reserved for Physically Handicapped category, therefore, she could not be denied appointment when the Civil Surgeon has reported her 40% visually handicap.

We have heard learned counsel for the parties and find no merit in the present petition. The advertisement for the posts of Telecom Technical Assistants was published on 23.09.2007. For Hoshiarpur District, 3 posts of Physically Handicapped category were reserved without any further bifurcation amongst Visually Impaired, Locomotive disabilities or Hearing Impaired. Prior thereto on 18.10.2001, it was decided that the post of Telecom Technical Assistant was not reserved for Visually Impaired category but for other two disabilities. The respondents have attached the duties of Telecom Technical Assistant, which consist of two streams i.e. Switching and Transmission. The duties to be performed include installation and maintenance of all types of local and TAX exchanges; installation and maintenance of all types of telegraph instruments and apparatus; installation and maintenance of power plant, battery, air conditioning equipments, pumps, engine alternator, electrical installations, fans, desert coolers etc.; carry out daily, weekly and monthly tests on local & junction lines, switching and junction equipments, localization & repair of faults in all types of exchanges; taking traffic readings, preparation of fault statistics, fault analysis and maintenance of records; perform all jobs connected with technical maintenance installation as assigned by the JTO/Officer in Charge, &; independently operate and maintain electronics exchanges system. A perusal of the duties of Telecom Technical Assistant shows that the work assigned is technical in nature. Considering the work profile, the Nigam has taken a decision way-back in the year 2001 not to fill the post of Telecom Technical Assistant amongst Visually Impaired handicapped, though for Visually Impaired handicap, the posts are reserved in Secretarial related posts. It is for the employer to adjudge whether particular post can be meant for Visually Impaired handicap candidate or not keeping in view its requirements.

Since a conscious decision was taken much before the advertisement was published in the year 2007, any omission in the advertisement will not confer any right in favour of the petitioner to seek appointment against a technical post. Similarly the issuance of letter to the petitioner informing that she has been selected does not confer any right in her as the petitioner has to be medically fit to discharge the duties. In the application form, the petitioner has disclosed her disease as ''Amblyopia Phythsym'' which could not be identified as the one of being Visual Impaired by the staff of the Nigam. Since the exact disease was not disclosed in the application form, no right could accrue to the petitioner for appointment to the post of Telecom Technical Assistant, as such post was not reserved for Visually Impaired candidate.

Learned counsel for the petitioner refers to the Hon''ble Supreme Court judgments reported as Amita Vs. Union of India (UOI) and Another, ; Bhudev Sharma Vs. District Judge, Bulandshahr and Another, and Govt. of India through Secretary and Another Vs. Ravi Prakash Gupta and Another, in support of the argument that since the petitioner satisfies the conditions laid down in the advertisement, the petitioner is entitled to be appointed.

In Amita''s case (supra), the candidate has disclosed in the application form that she was blind, but her candidature was rejected in respect of selection to the post of Probationary Officer in a Bank. In the said case, reliance was placed upon an earlier judgment permitting the Visually Impaired persons to compete the civil services examination. On the analogy of said permission, the candidate was permitted to compete for the post of Probationary Officer. It was held that Visually Impaired candidates are entitled for being selected and appointed as Probationary Officer from the general category or from the reserved category. The said judgment provides no assistance to the petitioner inasmuch as it was conceded position that the post of Probationary Officer can be filled up from Visually Impaired candidates.

In Bhudev Sharma''s case (supra), the question decided was that 2% of 30 posts is 0.6%, which was rounded off to hold that 1 post from 30 posts reserved for Physically Handicapped persons. The issue raised and decided has no parity with the issue arising for consideration in the present case.

In Ravi Prakash Gupta''s case (supra), a candidate suffering from 100% blindness appeared in the Civil Services Examination. It was held that unless the posts are identified for the purposes of Section 33 of the Disabilities Act, 1995, no appointments from the reserved categories contained therein can be made, but such dependence would be for the purpose of making appointments and not for the purpose of making reservation. Even the said judgment does not help any of the arguments raised by the learned counsel for the petitioner.

Since a conscious decision has been taken not to reserve the post of Telecom Technical Assistant for the Visually Impaired candidates much before the advertisement was issued, the petitioner cannot take advantage of omission in the advertisement not specifying the posts, which are required to be reserved.

Consequently, we do not find any merit in the present writ petition. The same is dismissed.