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2017 DIGILAW 134 (UTT)

Balam Singh Adhikari v. State of Uttarakhand

2017-02-23

SUDHANSHU DHULIA

body2017
JUDGMENT : Sudhanshu Dhulia, J. 1. The petitioner is a physically challenged person having a 60% hearing impairment and having all the qualifications prescribed under the law for the post of Assistant Teacher – L.T. Grade (Science). The petitioner was an applicant in the selection process initiated by the Government of Uttarakhand in the year 2014 by which an advertisement was published on 23.02.2014 calling application from the eligible candidates, which was subsequently duly amended on 25.02.2014. It is again an admitted case that out of the total number of seats of Assistant Teacher in the State, 3 per cent posts were reserved for persons with disability. 2. The petitioner has all the qualifications for the post of Assistant Teacher – L.T. Grade (Science), including Teacher Eligibility Test, which is now mandatory requirement under the law. The petitioner had applied under the physically challenged quota in the General category. The marks obtained by the petitioner in the selection process are 110.75. He was subsequently selected and appointed under the physically challenged category vide order dated 14.05.2016 and was allotted a school, namely, Government Inter College, Mehatgaon, Post Ratgal, District Almora. 3. It appears that when the petitioner reached his designated school to give his joining, the Principal of the school noticed “anomaly”, which according to the Principal was that the date of advertisement though was 23.02.2014 but the certificate of physical disability, on which the petitioner was relying upon, was dated 29.10.2014. Admittedly the petitioner had obtained the physical disability certificate, which shows that the petitioner had a hearing impairment of 60%, after the date of advertisement. The Principal has refused to give joining to the petitioner and reported the matter to the appointing authority i.e., Divisional Additional Director (Intermediate Education), Kumaon Division. Thereafter on 17.06.2016 the petitioner was given a show cause to appear in the office of Additional Director (Intermediate Education), Kumaon Division along with all the relevant documents. The documents of the petitioner were examined and it was found that the physical disability certificate of the petitioner is post-dated i.e. after the date of advertisement (i.e. 29.10.2014). Hence vide order dated 12.07.2016 the Additional Director (Intermediate Education), Kumaon Division cancelled the appointment of the petitioner. Aggrieved, the petitioner has challenged the order dated 12.07.2016, which is annexure No. 14 to the writ petition, before this Court. 4. Hence vide order dated 12.07.2016 the Additional Director (Intermediate Education), Kumaon Division cancelled the appointment of the petitioner. Aggrieved, the petitioner has challenged the order dated 12.07.2016, which is annexure No. 14 to the writ petition, before this Court. 4. Learned counsel for the petitioner would first argue that he is liable to be considered under the category of physically disabled person. It is not a case where the physical disability itself occurred after the date of the advertisement i.e. dated 23.02.2014. According to the petitioner, the physical disability was in existence at the time of advertisement and in order to substantiate his argument, the petitioner has produced before this Court a medical certificate dated 16.01.2014 issued by Dr. H.C. Gorkoti, M.S. (E.N.T.), Base Hospital, Almora. The medical certificate is annexed as annexure No. 2 to the writ petition, which reads as under :- “Medical Certificate This is to certify that Balam Singh Adhikari S/o Sri Madan Singh Adhikari, Village Talli Reuni, P.O. Majkhali, District Almora is a case of hearing loss (60%). He was under my treatment from 16.01.2014 for the same problem.” 5. This certificate is dated 16.01.2014, which says that the petitioner is under the treatment of the concerned doctor, who issued that certificate. This certificate is admittedly not under the prescribed performa, and therefore, the respondents can definitely have an objection to it, inasmuch as it was not under the performa prescribed by the Government. However, the certificate in a prescribed performa was given by the petitioner only on 29.10.2014, which is annexure No. 2 to the writ petition, which shows that the petitioner is permanent hearing impairment of 60 per cent. 6. The fact is that the valid physical disability certificate of the petitioner is of 29.10.2014 i.e. after the date of date advertisement, which is dated 23.02.2016. Therefore, the learned counsel for the State would argue that in the first instance the candidature of the petitioner was not even liable to be considered by the selection committee, inasmuch as there was a clear condition in the advertisement, which stipulated that any incomplete application which is not properly accompanying the documents, will liable to be rejected. 7. The admitted fact is that the petitioner is a physically challenged person. He was an applicant under the said category for the said selection process. 7. The admitted fact is that the petitioner is a physically challenged person. He was an applicant under the said category for the said selection process. Under Parliamentary Legislation known as “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” (from hereinafter referred to as “Act”) which inter alia states that one of the reasons for bringing out the legislation is “to create barrier free environment for persons with disabilities.” Therefore, minor anomalies are liable to be ignored in a case of physically challenged person, as we have to create a barrier free environment for them, and not create further barriers in terms of technical objections, which do not go to the root of the matter. 8. It is nobody’s case that the petitioner is not a physically challenged person. A specific question was put to the learned counsel for the State if he has any doubt as to the veracity of the document, but there is no objection on this aspect has been raised by the State. Hence unless the certificate itself is cancelled by the competent authority, veracity of the same cannot be challenged. 9. In the Act entire CHAPTER VI relates to “employment” of physically disabled persons in Government service. The relevant Sections 38 and 39 of the Act reads as under :- “38. Schemes for ensuring employment of persons with disabilities – (1) The appropriate Governments and local authorities shall by notification formulate schemes for ensuring employment of persons with disabilities, and such schemes may provide for- (a) the training and welfare of persons with disabilities; (b) the relaxation of upper age limit. (c) regulating the employment; (d) health and safety measures and creation of a non-handicapping environment in places where persons with disabilities are employed; (e) the manner which and the persons by whom the cost of operating the schemes is to be defrayed; and (f) constituting the authority responsible for the administration of the scheme. 39. All educational institutions to reserve seats for persons with disabilities - All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seats for persons with disabilities.” 10. 39. All educational institutions to reserve seats for persons with disabilities - All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seats for persons with disabilities.” 10. Although the Act mandates the State Government to identify such Government Department where physically challenged person can be employed but there is a specific mandate under Section 39 of the Act that all educational institutions must reserve 3 per cent of the seats for physically challenged persons. It is for this reason that 3 per cent of the posts in Uttarakhand reserved for physically challenged category. 11. The correct procedure for the appointing authority in these circumstances to have ascertained whether the petitioner actually has a physical disability or not and what was liable to be questioned were the certificate he has annexed and his physical disability itself under which he was getting a reservation. On the other hand, the appointment of the petitioner has been cancelled on irregularities, which could have been corrected, considering that the applicant was a physically challenged person. This opportunity was liable to be given to the petitioner, which has not been done in the present case. 12. There is another argument raised by the petitioner that even if his case of physically challenged is not liable to be considered, he was liable to be considered under the General category itself, as the marks he had obtained were 110.75 in the Kumaon Division. This has been brought to the notice of this Court by annexure No. 10 to the writ petition that at least there are two candidates of General category candidates, namely, Dhiraj Pandey and Jeewan Lal Shah, who have been given appointment in Almora under the General category, who are having 110.5 and 110 marks respectively, which is admittedly lower marks than what the petitioner has obtained. But the reasons the petitioner has not been considered under the General category candidate is that on the date of advertisement the maximum age limit for General category candidate was 40 year whereas the petitioner at the relevant time was of 41 years 8 months. However, the petitioner would than rely upon a Government Order dated 25.02.2014 by which the age of General category candidate has been increased to 42 years. However, the petitioner would than rely upon a Government Order dated 25.02.2014 by which the age of General category candidate has been increased to 42 years. The Government Order dated 25.02.2014 clearly stipulates that this order is prospective in nature and will not be applicable to any advertisement, which have been issued prior to the said date. In the case of the petitioner, the date of the advertisement is 23.02.2014, which was published on 24.02.2014. Although the petitioner rely upon the fact that this advertisement was amended on 25.02.2014, and therefore, the relaxation in age is liable to be given, in the case of the petitioner. 13. This point, this Court is not liable to be considered inasmuch as the original date of advertisement is 23.02.2014, and therefore, since the Government Order dated 25.02.2014 is not retrospective in nature, the relaxation given to the General category candidate, cannot be given in the case of the petitioner. 14. Having said this, the petitioner was liable to be given the rejection of the candidature, as a physically challenged person, under these circumstances is not justified, when the petitioner has submitted the medical certificate of his disability, a fact which has also not been denied by any of the respondents. 15. In view thereof, the writ petition is allowed. The impugned order dated 12.07.2016 is hereby quashed. The Additional Director (Intermediate Education), Kumaon Division is hereby directed to appointment the petitioner on the post of Assistant Teacher – L.T. Grade (Science), considering his candidature as physically challenged person, if possible at the earlier place of posting. In case, the said post is filled by this time, his case shall be considered at suitable place, considering the physical disability of the petitioner.