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2016 DIGILAW 2246 (ALL)

Atul Kumar Tiwari v. State of U. P.

2016-06-28

ARVIND KUMAR TRIPATHI

body2016
JUDGMENT Arvind Kumar Tripathi,J. Heard learned counsel for the petitioners, learned Standing Counsel and perused the record. 2. The present writ petition has been preferred with the prayer to issue a writ of certiorari quashing the Government Order dated 13.5.2016 (Annexure No. 17) and show cause notices dated 20.5.2016 and 2.6.2016 (Annexure No. 18) as illegal and arbitrary and in violation of principles of natural justice as the same are based on no medical report which could have been prepared by the earlier medical board at the time of examining the petitioners and the copy of which could have been supplied to the petitioners for giving him a due opportunity under law to challenge the same before the other authorities under law. With further prayer to issue a writ of certiorari quashing the report/letter dated 4.9.2010 issued by the respondent no. 4 (Annexure No. 12) in respect of the petitioners as the same is completely non-speaking and arbitrary and based on no material or evidence and is not based upon any reason. 3. In the matter of similarly placed persons, several writ petitions were filed and in one of the Writ-A No. 28232 of 2016 (Anil Kumar Dubey Vs. State of U.P. & others), this Court has passed the following order on 16th June, 2016: "...From the record it appears that a Medical Board was constituted in order to assess the disability. Out of the 234 candidates selected under the handicapped category, it was found that 21% of the candidates were not handicapped. One Ravindra Kumar Sharma along with other candidates had challenged the order of the State Government by way of a writ petition, which was dismissed by this Court, however, Special Appeal No. [811] of 2010 was allowed on 09th September, 2010 modifying the order of the learned Single Judge. Dissatisfied with the order of the Division Bench, a special leave petition was filed by the State of U.P., which was converted to Civil Appeal No. 758 of 2016. The Supreme Court by its judgement dated 03rd February, 2016 set aside the order of the Division Bench, however, the Court left it open that before taking any action against the individuals they shall be issued a show cause notice in the matter and thereafter the decision will be rendered in accordance with law. In compliance thereof a show cause notice has been issued. In compliance thereof a show cause notice has been issued. This writ petition has been filed challenging the said show cause notice. The submission of the learned Senior Advocate is that in fact the show cause notice is an eyewash as from the order of the State Government dated 13th May, 2016, it is evident that the decision has already been taken to dispense with the services of all those candidates who have not been found to be physically handicapped by the Medical Board constituted in the year 2010. It is further contended by the learned Senior Advocate that from a perusal of the report of the Medical Board which was constituted in the year 2010, it is distinct that no reason at all has been recorded and the remarks column has been left blank. Only the conclusion "yes" or "no" has been mentioned. It is strenuously urged by the learned Senior Advocate that the petitioner who is working for the last several years, and in fact differently abled person, cannot be terminated without a proper medical examination. Next, he submitted that in some districts in 2012 fresh medical boards were constituted and the candidates from the said districts, who were earlier rejected by the Medical Board in 2010, were found to be physically handicapped and those candidates have also filed a writ petition i.e. Writ-A No. 28276 of 2016 (Hem Sahu v. State of U.P. & others), in which an interim order has been passed by this Court on 14th June, 2016. Learned Senior Advocate has also drawn the attention of the Court to Writ Petition No. 27603 of 2016 (Upendra Kumar Singhal v. State of U.P. & others), wherein this Court has directed to constitute a fresh Medical Board. I have heard learned Counsel for the petitioner and the learned Standing Counsel. Matter needs consideration. As prayed by learned Standing Counsel, three weeks' time is granted to file counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter. List this case on 19.7.2016. In my view, as the petitioner has challenged the show cause notice which has been issued in compliance of the judgement of the Supreme Court, it would be appropriate that the petitioner may submit his reply to the show cause notice. The respondent may get him medically examined also. List this case on 19.7.2016. In my view, as the petitioner has challenged the show cause notice which has been issued in compliance of the judgement of the Supreme Court, it would be appropriate that the petitioner may submit his reply to the show cause notice. The respondent may get him medically examined also. Till fresh decision is taken in pursuance of the show cause notice or till the next date of listing, whichever is earlier, the petitioner shall continue as an Assistant Teacher and his salary shall be paid." 4. Learned Standing Counsel does not dispute the said fact. He also informed that some of the writ petitions were disposed of finally extending the benefit given by interim order passed in the above-noted writ petition. 5. In view of the fact that the show cause notices have been issued in compliance of judgment of the Supreme Court, it would be appropriate that the petitioners may submit their reply to the show cause notice within three weeks, if the reply has already not been submitted. The respondent shall get the petitioners medically examined afresh. Till fresh decision is taken in pursuance of the show cause notice after considering the reply submitted by the petitioners, the petitioners who were appointed and working as Assistant Teacher shall continue and their salary shall be paid for which they are entitled. With aforesaid observation and direction, the present petition is finally disposed of.