Taking note of Centre’s policy to provide jobs to candidates with physical disabilities,the Bombay High Court has quashed an order of Mumbai University cancelling appointment of a physically handicapped person as telephone operator-cum-receptionist and directed that instead he may be appointed as clerk-cum-typist.
“The impugned order of March 9 is set aside and the respondents are directed to appoint the petitioner as clerk-cum-typist with effect from the date on which he was
appointed to the post of telephone operator-cum-receptionist,from June 7,2008,within four weeks,” a bench headed by Chief
Justice Mohit Shah said in their order on June 22.
Milind Salvi had applied for both the posts and was appointed as telephone operator-cum-receptionist. However,the University cancelled his appointment after four years on the ground that he was appointed to the post without holding necessary qualification. Being aggrieved,he moved the court.
“Since the petitioner was given the post of telephone operator-cum-receptionist by the respondents without any suppression of facts by him or false information given by him,we direct that respondents shall not recover any part of the salary and allowances paid to him,” the judges noted.
The University,however,asked for a stay on the High Court order appointing the petitioner as clerk-cum-typist but the bench comprising Chief Justice Mohit Shah and Justice Nitin Jamdar rejected its plea saying they did not see any justification for this.
On May 4,2007,the university had invited applications through an advertisement for various posts including that of one telephone operator-cum-receptionist and 27 posts of clerk-cum-typists. Three percent posts were reserved for handicapped persons.
Salvi had a disability exceeding 50 per cent but less than 60 per cent as per certificate issued on November 28,2002,by All India Institute of Physical Medicine and Rehabilitation,Mumbai. He had applied for posts of telephone operator-cum receptionist and clerk-cum-typist.
The court noted that there is no dispute about the fact that Salvi was qualified for the post of clerk-cum-typist as he had passed SSC examination,the MS-CIT course as well as typing examination in Marathi with 30 wpm and in English with 40 wpm.
Salvi had relied on certificate dated March 13,2004 of Gokhale Education Society,certifying that he had successfully completed telephone operating course (key and plug system) in January 2004 with Grade ‘A’.
“However,it appears that the said certificate was granted after completion of two months course at a private commercial institute and not of six months course from a
government approved institute,” the Court noted.
By an order dated June 7,2008,Salvi was appointed on the post of telephone operator-cum-receptionist in the pay scale of Rs 3,200-4,900/- and was posted at Bombay Veterinary College,Mumbai.
This order was issued after the interview which was conducted on June 5,2008,for which the petitioner was called by a letter dated May 28,2009. Copies of original certificates were produced by Salvi at the interview.
Subsequently,however,an enquiry was initiated against the petitioner alleging that he was appointed as telephone operator-cum-receptionist without having the requisite qualification for the post,ie,six months course of telephone operator from a government recognised institute.
The inquiry officer submitted a report on February 4 saying the petitioner’s appointment to post was not in accordance with the rules. However,he held that Salvi had not submitted any false information or suppressed any facts at the time of interview.
As the university had not asked for the certificate of six months training,the petitioner was not responsible for the illegal selection,the court held.
“Otherwise also as he was also selected for the post of clerk-cum-typist,he may be appointed on that post in case his appointment on the post of telephone-cum-receptionist is cancelled,” the judges observed.
Petitioner’s counsel Pooja Thorat submitted that since there were as many as 27 posts of clerk-cum-typist and the advertisement reiterated the legal requirement to reserve 3 per cent posts for persons with disability,at least one post was reserved for physically handicapped person.
The petitioner is handicapped and amongst the category of physically handicapped he was found to be most meritorious. Hence,even if there was any infirmity in his appointment on the post of telephone operator-cum-receptionist he was required to be appointed as clerk-cum-typist,Thorat argued.
She further argued that termination of the services of the petitioner after four years has caused irreparable loss and damage to his career and,therefore,the relief prayed by the petitioner deserved to be granted.
Counsel for University,R B Sawant,however,argued that since the petitioner had accepted the appointment to the post of telephone operator-cum-receptionist knowing fully well that he had not obtained any qualification after undergoing six months course as telephone operator,he cannot be considered as coming to the Court with clean hands.
Countering the argument,Thorat argued that such contention was not warranted because various departments and agencies appoint physically handicapped persons as telephone operators and,therefore,the petitioner bonafide believed that he was selected in the category of physically handicapped candidates and posted as telephone operator-cum-receptionist.
However,the court held that the petitioner had the necessary qualification and was also found to be most meritorious amongst the physically handicapped persons. Hence,his claim for appointment to the post of clerk-cum-typist cannot be defeated merely because he had accepted the post of telephone operator-cum-receptionist.