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2011 DIGILAW 122 (ORI)

Sumitra Bhuyan v. State at Orissa

2011-02-25

B.K.MISRA

body2011
ORDER Heard Learned Counsel for the, parties. The Petitioner being aggrieved with the order of the Learned Additional District Magistrate, Bhadrak dtd. 8.7.2010 in A.W.(A) No. 29 of 2010 (Annexure-1) has approached this Court for quashing of the said order. I have heard Learned Counsel for the Petitioner, Learned Counsel appearing for the Caveator, namely Opp. Party No.6 & Learned Additional Standing Counsel. In brief I may state here that the Petitioner was appointed as an Anganwadi worker as a physically disabled woman in respect of the Mahulgadia Anganwadi Centre under Bonth Block in Bhadrak district. The Opp. Party No.6 along with five other candidates also had applied for the said post. Challenging the appointment of the Petitioner as Anganwadi worker, the Opp. Party No.6 had filed a Writ Petition before this Court vide W.P.(C) No. 3950 of 2010. The said Writ Petition was disposed of by this Court with a direction that the Opp. Party No.6, who was the Petitioner in that Writ Petition, should file an appeal before the Learned Additional District Magistrate, Bhadrak who shall dispose of the appeal on merit. Pursuant to such direction of the Hon'ble Court, the Opp. Party No.6 filed an appeal before the Learned Additional District Magistrate, Bhadrak which was registered as A.W.(A) No. 29 of 2010 & the Learned Additional District Magistrate, Bhadrak disposed of the appeal vide his order impugned at Annexure-1 giving a direction to the present Petitioner, who was Opp. Party No.2 in the said appeal to appear before the "State Medical Board" as doubts were entertained about the "Disability Certificate" granted by the District Medical Board, Bhadrak. Learned Counsel for the Writ Petitioner contended that the impugned order is a cryptic & non speaking one & besides that the order has, been passed by Learned Additional District Magistrate, Bhadrak without application of mind & without following the Government order i.e., the guidelines prescribed with regard to the disability certificate & about the dispute which would arise with regard to issue of disability certificate within the meaning of Rule-5 & 6 of "Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Orissa Rules, 2003" (herein referred as Orissa Rules, 2003) issued by the Government of Orissa in Women & Child Development Department vide Notification No. 17963-HW-II-A-4-/03-WCD dtd. 28.8.2003. 28.8.2003. It was also contended that the direction of the Learned Additional District Magistrate, Bhadrak to the Petitioner to appear before the "State Medical Board" is non est as there is no such State Medical Board. It was also contended by the Learned Counsel for the Petitioner that the Petitioner do not feel shy of appearing before any medical authority with regard to her physical disability by a duly constituted Medical Board within the meaning of Orissa Rule-5 & 6. Learned Standing Counsel appearing for the State also very fairly conceded that there is no such State Medical Board & the Learned Additional District Magistrate, Bhadrak should have followed the rules prescribed to resolve the dispute which has arisen with regard to the disability certificate in respect of the Petitioner. Learned Counsel for the Opp. Party No.6 contended that the Petitioner should not feel shy of appearing before the medical board with regard to her disability of eye. After hearing the Learned Counsel for the respective parties, I find sufficient force in the contention of the Learned Counsel for the Petitioner, as the order impugned at Annexure-1 is definitely a cryptic one. No reason has been assigned by the Appellate authority, namely the Learned Additional District Magistrate, Bhadrak & thus the absence of reasons & non adherence to the Government instructions as contained in Rule 5 & 6 of the Orissa Rules, 2003 makes the order of the Learned Additional District Magistrate vulnerable. Rule 5 speaks about the disability certificate & Rule-6 speaks about the appointment of an Appellate medical board by the State Government to resolve any dispute which arises to issue of disability certificate Orissa Rule-5 & 6, 2003 speaks as follows: "5( 1} the Medical Board constituted under Rule 4 after due examination, shall give a permanent disability certificate in cases of those permanently disabled where there are no chances of variation in the degree of disability; (2) Wherever there is any chance of variation in the degree of disability, the Medical Board will indicate the period' of validity in the certificate; (3) No refusal of disability certificate shall be made unless an opportunity is given to the applicant of being heard; (4) On representation by the applicant, the Board may review its decision having regard to all the facts & circumstances of the case & pass such order in the matter as if deem fit. 6. 6. (1) The State Government may appoint an Appellate Medical Board to resolve any dispute arises with regard to issue of Disability Certificate. (2) The Appellate Medical Board shall consist of at least three members not below the rank of Assistant Professor of the Medical College of the State, out of which one shall be a Assistant. Professor in the particular field for assessing locomotor/visual including low vision/hearing & speech disability mental retardation & leprosy cured as the case may be; (3) The decision of the Appellate Medical Board in the matter shall be final, Besides that the Learned Additional District Magistrate, Bhadrak has also failed to take into consideration the instructions of the Government in General Administration Department vide Resolution No. 3404-2R/1-3/2004/Gen. dtd. 13.2.2006 wherein in Para-10 it has been prescribed on nomination by the Women & Child Development Department person with disabilities should not be subjected to the usual medical examination on first appointment & the question should be decided on the basis of reports of the Medical Board attached to the Women & Child Development Department for the person with disabilities". Thus, without delving into the merits of the case & without expressing anything about the disability certificate granted to the Petitioner by the District Medical Board, Bhadrak, the impugned order at Annexure-1 is quashed with a direction to the Learned Additional District Magistrate, Bhadrak to hear A.W.(A) No. 29 of 2010 afresh by affording opportunity to the parties & the Learned Additional District Magistrate is to strictly follow the instructions of the Government contained in the Disability Orissa Rules, 2003 as has been quoted earlier & if any dispute would arise with regard to issue of the disability certificate, he is to strictly follow the Government instructions contained in Rule-5(4) & Rule-6 & thereafter he would be free to pass appropriate orders in accordance to the procedure laid down by the Government. With the aforesaid observation, the Writ Petition is disposed of. Personal appearance of the Petitioner is dispensed with. Urgent certified copy of this order be granted on proper application. Order quashed.