Calcutta High Court (Appellete Side)
Sn Benay Kumar Dey vs State & Ors on 4 July, 2014
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
119 4.7.14 W.P.17572(W)of 2014
sn BENAY KUMAR DEY VS. STATE & ORS.
Mr. Asok Kumar Ganguly
.. for the petitioner
Mr. Avijit Gangopadhyay
..for the SSC
Mr. Moloy Chakraborty
Mr. S. Sinha Roy
..for the State
Let the affidavit of service be kept on record.
This writ application is filed by the petitioner
challenging a notice issued by the Medical
Superintendent Cum Vice Principal, Burdwan
Medical College & Hospital, Burdwan under its
memo no. 1385(5)/1/RSSC(WR)/BNK dated July
26, 2011 directing the petitioner for appearing
before the Medical Board for re-examination of his
physical disability.
Since a point of law is involved in this matter
which can be decided on the basis of the materials
on record this matter is taken up for hearing.
The fact of the case is a nut shell is this the
petitioner participated in the selection process
under 11th Regional Level Selection Test, 2010 for
an assistant teacher under Physically handicapped
category for the subject Pure Science (Pass) The
petitioner relied upon the certificate no.27/238
dated April 26, 2007 issued by the Medical Board
of Suri Sadar Hospital, Birbhum for the purpose of
enjoying the benefit of quota under physically
challenged person. The petitioner was a successful
candidate in the above selection process under the
category mentioned hreinabvoe. His counselling
took place on June 7, 2011 in which he was
allowed to submit a declaration as to selection of
the school and the petitioner exercised his option
in respect of Baghasty Union Haricharan S.C. High
School(H.S.), District Paschim Medinipur (at page
31 of the writ application).
The subject matter of challenge in this writ
application is the power of respondent School
Service Commission to refer the physically challenged selected candidate to the Medical Board in spite of receiving such certificate issued by the competent authority from the petitioner at the time of receiving the application.
The above point of law was involved in the matter of Bidyut Kar Vs. State of West Bengal & Ors. (In Re: W.P.6003(W) of 2010) and the number of cases same and identical involving the same issues.
The above matter was disposed of by a learned Single Judge of this High Court on October 8, 2013 and the relevant portion of the above decision is quoted below :-
"But as I have indicated in the earlier part of this judgement, I find the intention of the Commission in these proceedings to be bona fide. They have also been able to establish that prima facie they have reason to doubt the disability level of different candidates coming with the certificates under the 1995 Act. This is a cause for concern, which needs to be addressed to. Under the law, however, the issue has to be raised before the Appellate Medical Board under the 1999 Rules in cases the Commission has doubt over the assessment of the disability level of individual candidates. In cases where the commission has reason to believe that the certificate of a candidate itself is forged or fabricated, it would be open to the Commission to verify authenticity of such certificates by making communication with the issuing authority. If such authority confirms the doubt of the Commission and declares the certificate of a candidate to be fabricated or forged, it would be open to the Commission to invalidate the candidature of such person, and withdraw the recommendation, upon giving opportunity of hearing to such candidate. But in the former class of cases, the procedure mandated by the 1999 Rules would have to be taken recourse to. Unless the Commission choose to institute a civil suit, for a declaration that the certificate of a candidate is invalid on the ground of carrying false assessment of his or her disability status, and obtains a decree to that effect. That course would always remain open for the Commission to undertake".
Let it be recorded that no allegations of forgery or fabrication of the certificate of disablement is leveled against the petitioner at any point of time. In view of the above, the ratio of the judgement delivered in the matter of Bidut Kar(supra) is applicable in this case.
In view of the above settled proposition of law, this writ application is disposed of quashing and setting aside the impugned notice issued by the Burdwan Medical College at the instance of respondent School Service Commission and directing the respondent School Service Commission to issue order of recommendation in favour of the petitioner on the basis of option exercised by the petitioner in course of his counseling within a period of four weeks from the date of communication of this order.
The authority of the respondent School is also directed to act on such recommendation without insisting on reporting to the Medical Board further.
I make it clear that it shall be open to the respondent School Service Commission to verify with the issuing authority as to whether the certificates of the individual candidates are genuine or fabricated and if such certificates are found to be forged or fabricated, invalidate their candidature. It is also made clear that the Commission shall be at liberty to take up the issue of individual candidates with the Appellate Medical Board, if they find the certificate to be genuine, but assessment made in the certificate to be doubtful. This writ petition stands disposed of. There will be, however, no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Debasish Kar Gupta,J)