Andhra Pradesh High Court - Amravati
P.Fayazuddin, vs State Of Andhra Pradesh on 8 December, 2020
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
WRIT PETITION No.1769 of 2020
ORDER:
The petitioner, was appointed as language Pandit Grade-II in the year, 1995 in the general merit quota, despite having a hearing impairment disability. Thereafter the petitioner was promoted as School Assistant Hindi in the year 2003 in the general quota. When it came to the question of promotion to the cadre of Head Master, Grade-II, the petitioner had sought promotion under the physically handicapped quota, Government had issued G.O.Ms.No.31 women Development, Child Welfare & Disabled Welfare Department dated 01.12.2009 framing guidelines for evaluation of various disabilities and for issuance of certificates. As per note 4 B(1) appendix 3 to the saied G.O, the test for hearing impairment is to be conducted by pure tone average of learning in 500 and 2000 HZ, 4000 HZ by conduction (AC and BC) should be taken as basis for consideration as per the test recommendations. Such a test was conducted on the petitioner by the Medical Board at Government Hospital, Ananthapur, which issued disability certificate dated 23.11.2017 holding that the petitioner has 52% disability under hearing impairment. Thereafter the respondents while considering the representation of the petitioner for considering his case for promotion to the cadre of Head Master Grade-II under physically handicapped quota had referred the petitioner again for a test for physical impairment 2 and issued temporary promotion by proceedings dated 28.08.2019. Thereafter the Joint Director of School Education, Kadapa issued impugned proceedings RC No.4297/A2/2019, dated 17.01.2020 reverting the petitioner to the post of School Assistant on the ground that the Superintendent, Government ENT Hospital, Visakhapatnam had furnished a report stating that the petitioner had 0% disability in hearing impairment.
The petitioner has challenged the said proceedings dated 17.01.2020 on the ground that the proceedings were issued without giving any notice to the petitioner and without giving an opportunity to the petitioner to set out his case. The petitioner has challenge this notice also on the ground that the test required to be performed for ascertain hearing impairment is a pure tone average test which is known as PTA test, however the test conducted on the petitioner was the brainstem evoked response audio meter test known as BERA test which is not permissible. The respondents have filed a counter affidavit along with material papers. The case of the respondents is that in view of the subsequent certification of the Superintendent, Government ENT Hospital, Visakhapatnam, it would have be treated that the petitioner has no impairment and cannot be promoted in the physically handicapped quota.
A perusal of the certificate issued by the Superintendent, Government ENT Hospital, Visakhapatnam, dated NIL.12.2019, which is the basis for the reversion of the petitioner, would show that five individuals have been tested and one Sri 3 K.Venkateswarlu at serial No.4 was tested by using the PTA test while the other four individuals including the petitioner herein were tested by way of BERA test.
There is no explanation as to why the BERA test was used while G.O.Ms.No.31 stipulated PTA test. There is also no explanation as to why the PTA test was conducted, on one individual only, while the other four individuals were tested while using the BERA test.
In these circumstances, the order of reversion which is based on the certificate issued by ENT Hospital using BERA Test cannot be sustained. Apart from this, the fact that the petitioner was not given notice of any of these proceedings prior to the issue of impugned proceedings is also case of violation of principles of natural justice and the order of reversion would have to be set aside on that ground also.
In these circumstances, the impugned order issued by the 3rd respondent in proceedings RC No.4297/A2/2019 dated 17.01.2020 is set aside and the petitioner is entitled for reinstatement, however, it shall be open to the respondents to get a competent Medical Board to assess the hearing impairment of the petitioner in accordance with G.O.Ms.No.31, dated 01.12.2009. In the event of any adverse certification being given by the Medical Board, the respondents shall give notice of the adverse inference to the petitioner and pass orders only after giving opportunity of hearing to the petitioner. 4
Accordingly, the writ petition is disposed of. There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________ R. RAGHUNANDAN RAO, J.
Date :08.12.2020 Note : Issue CC by 10.12.2020 b/o.
sj 5 83 HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO WRIT PETITION No.1769 of 2020 Date : 08.12.2020 sj