The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36822 of 2023 Santosh Kumar Pradhan …. Petitioner Mr.S.B.Mohanty, Advocate -versus- State of Odisha and another …. Opposite Parties Mr.N.K.Praharaj, A.G.A. Mr.S.N.Patnaik, Advocate for OSSC CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 29.01.2024 04. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate for the State-Opposite Parties and
Legal Reasoning
Mr.S.N.Pattnaik, Advocate for Odisha Staff Selection Commission. 3. The Petitioner has filed the present writ application with the following prayer: “It is therefore prayed that this Hon'ble Court may
Decision
graciously be pleased. 1. To admit the Writ Petitioner. 2. To direct the Secretary, Staff Selection Commission, BBSR to include the name of the Petitioner in the provisional Selection list thereby reshuffling it in respect of the Zone of PWD, category-2 taking in to account the higher marks under PWD category and consequential steps be taken for his appointment in the post of Junior Engineer, Civil. And pass appropriate order as deemed fit and proper.” 4. Learned counsel appearing for the Petitioner, at the outset // 2 // submitted that pursuant to an advertisement issued by the Odisha Staff Selection Commission on 02.11.2022 under Annexure-1 for recruitment to the post of Junior Engineer (Group-B) of Technical Services in the State of Odisha for the year 2022. The Petitioner had submitted his candidature for such recruitment on 11.12.2022. Learned counsel for the petitioner further contended that the Petitioner is a physically disabled person. Pursuant to the certificates issued by the competent Medical Board in the year 2013, the percentage of the disability of the Petitioner has been assessed at 80% and the nature of such disability was permanent. Thereafter, he was re-examined in the year 2022. A disability certificate has been issued under the signature of the Chief District Medical Officer, Ganjam dated 28.11.2022, which reveals that the Petitioner has 55 % disability, which is temporary in nature in relation to his Ears and the same has been issued under the RPwD Act, 2016 and in view of the Govt. of India notification dated 04.01.2018. 5. While the matter stood thus, the Petitioner was again re- examined by the Medical Board and another certificate has been issued by the very same Chief District Medical Officer, Ganjam on 19.10.2023. The subsequent certificate issued in the year 2023 reveals that the Petitioner has 51 % disability and such disability is permanent in nature and the same is in relation to both Ears. It also appears that the same has been issued under the RPwD Act, 2016 and under the Govt. of India notification dated 04.01.2018. On the basis of the aforesaid certificates, learned counsel for the Petitioner submitted that it is not disputed that the Petitioner is having disability, however, the percentage and the nature of such disability is not final as because different certificates have been issued by the // 3 // authorities at different point in time. As a result of which, the aforesaid anomaly has created confusion and the Petitioner has not been allowed to participate in the selection process further. Being aggrieved by such conduct of the Recruiting Agency i.e. Odisha Staff Selection Commission, the Petitioner has approached this Court by filing the present writ application. 6. Mr. S.N. Pattnaik, learned counsel appearing for the OSSC, on instruction, submitted before this Court that the Petitioner himself has uploaded the certificate dtd.28.11.2022 and the same has been relied upon by the Petitioner while submitting his application expressing his desire to participate in the recruitment process. He further contended that the certificate dated 28.11.2022 uploaded along with the Petitioner’s application reveals that the disability is temporary in nature. When the same was detected, the authorities have not allowed the Petitioner to participate further in the recruitment process since the requirement under the advertisement is disability should be of permanent nature. He further submitted that on the basis of such certificate the candidature of the Petitioner has not been considered under the PwD category and he has not been allowed to further participate in the recruitment process, although the Petitioner has cleared the written examination. 7. In reply to the aforesaid submission, learned counsel appearing for the petitioner submitted that the Petitioner was called for to attend the document verification under the PwD category under Annexure-6 to the writ application. Although the Petitioner participated in such document verification, however his candidature has not been considered under the PwD category. 8. Learned Additional Government Advocate for the State on the // 4 // other hand on the basis of such written instruction from the Opposite Parties dated 08.01.2024 submitted before this Court that an explanation was called for from the Chief District Medical Officer, Ganjam with regard to the discrepancies in the disability certificate issued in favour of the Petitioner. The CDMO, Ganjam vide his letter dated 08.01.2024 has clarified the position by stating in the said letter that the disability certificate have been issued on the basis of the audiometric test conducted on the petitioner. He further contended that the percentage of disability has been assessed on the basis of such audiometric test and the response of the Petitioner to such test conducted by the technician operating the audiometric instruments. 9. The instruction dated 08.01.2024 further reveals that on the basis of such audiometric report the ENT specialist has given his final report and accordingly the disability certificate has been issued. On a plain reading of the instruction dated 08.01.2024 and the response of the CDMO, Ganjam it appears that the CDMO, Ganjam has justified both the reports. Accordingly, learned Additional Government Advocate submitted that it was open to the Recruiting Agency i.e. Odisha Staff Selection Commission to take a final decision in the matter and the State-Opposite Parties have no role in the recruitment process. Further, while supporting action of the Recruiting Agency, learned Additional Government Advocate submitted that the disability certificate, which was produced by the Petitioner, reveals that the petitioner has temporary disability, therefore, the Recruiting Agency has rightly not considered the case of the Petitioner. In such view of the matter, it was submitted that the writ application is devoid of merit and the same should be dismissed. 10. Having heard the learned counsels appearing for the respective // 5 // parties and on a careful consideration of the submissions of learned counsels and upon a careful examination of the materials on record, this Court observed that three disability certificates which have been issued by the very same authority are annexed to the writ application as Annexure-3. The Certificate dated 16.08.2023 reveals that the Petitioner is having 80% hearing disability, which is permanent in nature and the same has been issued by the competent Medical Board and the certificate has been counter-signed by each of the members of the Medical Board. Thereafter, another certificate dated 28.11.2023 has been issued in favour of the Petitioner under the signature of the CDMO, Ganjam. 11. At the outset, the same does not appear to be a certificate issued by the competent Medical Board but the same is no doubt a certificate under the RPwD Act, 2016 and pursuant to the Govt. of India notification dated 04.01.2018. Such certificate reveals that the Petitioner is having 55 % hearing disability, which is temporary in nature. Then another certificate was issued on 19.10.2023 by following aforesaid process under the signature of the CDMO, Ganjam. Such certificate reveals that the Petitioner has 50% hearing disability, which is permanent in nature. On a careful examination of all the certificates, this Court found that the certificate issued by the authorities are not consistent and it is difficult to come to a definite conclusion with regard to the percentage of the disability and the nature of such disability. 12. However, the latest certificate issued by the CDMO, Ganjam dated 19.10.2023 reveals that the Petitioner is having 51% of hearing disability, which is permanent in nature. On the basis of such certificate dated 19.10.2023 which is the latest one in the series, the // 6 // Petitioner is eligible to be considered under the PwD category as he has 51% disability and the same is permanent in nature. Furthermore, this Court observed that the Opposite Parties have considered the certificate dated 28.11.2022, which was submitted by the Petitioner and relied upon. Therefore, it prima facie appears that the Opposite Parties have not committed any illegality in not considering the case of the Petitioner under the PwD category as the disability certificate dated 28.11.2022 reveals that the disability is temporary in nature. 13. Considering the aforesaid discrepancies and anomalies in different certificates issued by the CDMO, Ganjam, this court expresses its displeasure in the manner in which the Medical certificates have been issued by the CDMO, Ganjam. This Court further observes that the CDMO, Ganjam, being the head of the District Medical system, is expected to be more cautious in his approach while issuing certificates to the disabled persons as is required under the RPwD Act, 2016. In this case it is found that the District Medical Authorities have acted in a very casual manner while issuing the certificate. Moreover, it is not disputed that a valid right accrued in favour of the petitioner in view of the provision contained under the RPwD act, 2016. Thus, such right cannot be taken away merely on the basis of the errors and omissions committed by the District Medical Authorities. Keeping in view the aforesaid factual as well as legal background, this Court deems it proper to dispose of the writ application at the stage of admission by directing the Opposite Party No.2 to refer the matter of the Petitioner to the Appellate Medical Board within 10 days from the date of production of certified copy of this order. It is further directed that the Petitioner be given advance intimation to appear before the // 7 // Appellate Medical Board on the date and time to be fixed by such Medical Board. The petitioner is directed to cooperate with the assessment the percentage and nature of his disability by the Appellate Medical Board. The Appellate Medical Board shall furnish its report within 7 days from the date of examination of the Petitioner by them before the Opposite Party No.2. The Opposite Party No.2, taking into consideration the report of the Appellate Medical Board, shall take a final decision in the matter. In the event the Appellate Medical Board confirms the certificate dated 19.10.2023, then the Opposite Party No.2 shall do well to consider the case of the Petitioner under the PwD category as provided under the RPwD Act, 2016 within four weeks from the date of communication of such certificate by the Appellate Medical Board if there is no other legal impediment. It is further directed that till a final decision is taken in the matter, as has been directed hereinabove, one post under the PwD category shall not be filled up for a period of eight weeks. 14. With the aforesaid observation, the writ application stands disposed of. 15. Issue urgent certified copy of this order as per Rules. Anil ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 02-Feb-2024 17:56:57