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Orissa High Court · body

2018 DIGILAW 605 (ORI)

Alupta Akanksha Biswal v. State of Odisha

2018-06-21

BISWANATH RATH

body2018
ORDER 21.06.2018 In spite of notice through Special Messenger and date of appearance being expired, there is no appearance on behalf of the opposite party no.2, the sole contesting opposite party. Learned counsel for the State on previous occasion also declined to represent the opposite party no.2, for which this Court was constrained to issue notice to the opposite party no.2 through Special Messenger at the cost of the petitioner. Therefore, this matter is decided only hearing the learned counsel for the petitioner and considering the submissions of Shri U.K. Sahoo, the learned Additional Standing Counsel. Heard Shri Sameer Kumar Das, learned counsel for the petitioner and Shri U.K. Sahoo, learned State Counsel. The factual scenario available in the case and for the particular pleading of the petitioner that the petitioner is an applicant pursuant to an advertisement for filling up the seats in the Medical Colleges; through NEET conducted at centrally level. Petitioner being a physically handicapped candidate as per the scheme of advertisement, the petitioner was required to produce P.C. certificate and this apart following a further notice vide Annexure-2, the petitioner and similarly situated candidates were required to be presented before the Committee of Doctors, set up by the Competent Authority. Even though the petitioner was provided required medical certificate yet by virtue of the notice under Annexure-2, the physical handicapped candidates involving the NEET rank holders for the purpose of W.P.(C) No.3631 of 2018 admission in P.C. category for MBBS & BDS were directed to attend a Medical Board at C.T.-II, SCB medical College, Cuttack on 14.07.2017 & 15.07.2017. Petitioner’s further case is that pursuant to issuance of a notification vide Annexure-3 indicating that the decision of the Board for above purpose shall remain binding pursuant to the notice under Annexure-2. As a consequence, petitioner along with others were placed before the Board constituted for the purpose before the Committee as indicated in the Annexure-3 and the list of eligible P.C. candidates was also prepared and circulated vide Annexure-4 indicating the name of the petitioner at Sl.No.10 therein. As a consequence, petitioner along with others were placed before the Board constituted for the purpose before the Committee as indicated in the Annexure-3 and the list of eligible P.C. candidates was also prepared and circulated vide Annexure-4 indicating the name of the petitioner at Sl.No.10 therein. It is at this stage, learned counsel for the petitioner alleges that after the petitioner took admission in the MKCG Medical College, Berhampur and while she was continuing with her education, she was surprised to receive a letter vide Annexure-5 asking her to appear before the AIIMS Authority for another health check up on the question of physical handicapness. But however, the AIIMs authority declined to examine the petitioner for the petitioner already examined by the competent Board. Petitioner has been again troubled by virtue of the letter under Annexure-7 in pursuant to a development vide Annexure-6 asking her to appear before the Standing Medical Board in the Office of the CDMO, Ganjam for examination of her health status. There also appears another communication vide Annexure-8 directing the petitioner once again to appear before the constituted committee in the Office Chamber of DMET (O), Heads of Department Building, 1st floor, on 7.03.2018 at 11.30 A.M. It is at this stage of the matter, petitioner approached this Court challenging the repeated action of the opposite parties asking the petitioner to appear before the different authority for health check up, in spite of the fact that the petitioner has already been examined by a competent Board following the scheme of the advertisement. Taking this Court to the entire development, Shri Das, learned counsel for the petitioner submitted that once a candidate is examined by a competent Medical Board in terms of the advertisement and the notice vide Annexure-2 and further for the condition attached in Annexure-3 clearly indicating that the report of the Board remain final, there was no question of putting the petitioner again for physical test. It is in the above premises, Shri Das, learned counsel for the petitioner submitted that the correspondences/directions vide Annexures-5, 6, 7 & 8 are all bad in law and should be interfered with and set aside. It is in the above premises, Shri Das, learned counsel for the petitioner submitted that the correspondences/directions vide Annexures-5, 6, 7 & 8 are all bad in law and should be interfered with and set aside. Even though there is no appearance on behalf of the contesting opposite party-the opposite party no.2, but however, the opposite party no.4 filed a counter affidavit and taking reliance of the amended provisions submitted that they have been empowered to bring appropriate Rule but as of now, there has been no rule framed under the Right of Persons with Disabilities Act, 2016 and as such opposite party no.4 becomes helpless. Perusing the counter averments, this Court finds, the counter averment is wholly irrelevant for the purpose of determination of the dispute involving the case. It is at this stage of the matter, considering the submission of the learned counsel for the petitioner, this Court finds, there is no dispute that the petitioner is a selected candidate in the NEET Examination in the physically handicap category conducted centrally. Now coming to the question of her selection in the category of physical handicapness, there is no dispute that along with application, the petitioner had already submitted a physical handicap certificate clearly indicating that she belongs to the category of Locomotor Disability and she was suffering at 45% with permanent physical impainment/blindness in relation to her spine. Subsequently, on the issuance of the notice under Annexure-2, it appears the petitioner has been once again placed before a Medical Board in the SCB Medical College, Cuttack where she has been found to be in the list of eligible P.C. (lower locomotary disability) candidate as clearly appearing in the serial no.10 under Annexure- 4. It is under this background, this Court finds, once the condition in the advertisement and the notification subsequent to the advertisement are complied, the opposite parties have no business in asking the petitioner to be placed before any other Board for retest. In the circumstances, this Court finds, the communications under Annexures-5 to 8 are not sustainable in the eye of law for having no legal support. Law is fairly settled that once an advertisement is set into motion, it is to be abided by the scheme of advertisement and there is no question of bringing new conditions. In the circumstances, this Court finds, the communications under Annexures-5 to 8 are not sustainable in the eye of law for having no legal support. Law is fairly settled that once an advertisement is set into motion, it is to be abided by the scheme of advertisement and there is no question of bringing new conditions. In the process this Court interfering in the order vide Annexure-8 and also in the orders vide Annexures-5 to 7, Ayas sets aside the same and directs the opposite parties to treat the petitioner as a duly selected candidate in the NEET Examination. While observing that the petitioner has been already made to suffer, which might have affected her educational atmosphere, this Court directs the opposite parties not to disturb the petitioner any further. The writ petition stands disposed of with the above direction. Issue urgent certified copy on proper application. Petition disposed of.