Calcutta High Court (Appellete Side)
In Re.: Munnalal Sau vs The State Of West Bengal & Others on 29 August, 2014
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
1
06 29.08.14
rpan Ct. No.17 W.P. No. 12201 (W) of 2014
In Re.: Munnalal Sau.
Petitioner
Vs.
The State of West Bengal & Others
Respondents
Mr. Ekramul Bari Mr. Syed Mansur Ali Ms. Tanuja Basak ... for the Petitioner Mr. Supriyo Chattopadhyay Mr. Jyoti Prakash Chatterjee ... for the State Mr. Avijit Gangopadhyay ... for the School Service Commission Affidavit-of-service filed in Court today be taken on record.
This writ application is directed against a decision of the Medical Superintendent-cum-Vice Principal, Medical College & Hospital, Kolkata as communicated by him under his Memo dated 04.01.2011.
By virtue of the said Memo, the writ petitioner was informed to appear for the Medical Examination on 15th January, 2014 at 12:00 noon in the Central Medical Board, Medical College & Hospital, Kolkata.
Mr. Supriyo Chatterjee appearing for the State vehemently opposed the prayer of the writ petitioner. It is his contention that the certificate, which has been relied on by the writ petitioner, is a temporary one, which should be renewed from time to time after expiry of ten years.
I am not satisfied with the submission of Mr. Chatterjee on the ground that it is not the case made out in the present writ petition. It is also not the requirement of the School Service Commission that the PH Certificate should be renewed. School Service Commission, on the contrary, asking 2 the Petitioner to appear before the Medical Board and obtain the second certificate which is, in my opinion, is not correct.
Therefore, after hearing Mr. Bari as well as Mr. Avijit Gangopadhyay for the School Service Commission and Mr. Supriyo Chatterjee appearing for the State as also after considering the facts and circumstance of this case I find that the writ petitioner participated in the above selection process. It is not in dispute that the petitioner also participated in the counselling in connection with the above selection process on October 5, 2013 and the writ petitioner exercised his option with regard to his choice of the name of the school for which he could be recommended.
After perusal of the reason assigned in the impugned communication, I find that the writ petitioner claimed benefit of physically challenged person on the basis of disability certificate no. WH/HB/ N 480 dated October 20, 2003 issued by the Competent Authority of Walsh S. D. Hospital, Serampore, Hooghly. It is not in dispute that the writ petitioner was asked to appear before a Medical Board, as suggested by the respondent/school service commission for re-assessment of his disability.
A short point of law is involved in this matter as to whether it is open to the school service commission to re- assess the extend disability in connection with his selection process under reference and on the basis of the facts and circumstances involved in this case.
The above issue has already been decided by an order dated October 08, 2013 in the matter of Bidyut Kar. Vs. State of West Bengal & Ors. (In Re : W.P. 6003(W) of 2010) and the relevant portions of the above decision are 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 3 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".
In view of the above settled proposition of law, this writ application is disposed of quashing and setting aside the impugned Memo issued by the Medical Superintendent-cum- Vice Principal, Medical College & Hospital, Kolkata at the instance of respondent School Service Commission and directing the respondent School Service Commission to issue order of recommendation in favour of the writ petitioner on the basis of option exercised by the writ petitioner in course of his counseling within September 30, 2014.
It will be open for the respondent/school service commission to recommend the name of the writ petitioner after conducting counselling afresh, in the event the vacancy under reference has already been filled up.
The authority of the respondent School is also directed to act on such recommendation without insisting on reporting to the Medical Board further.
The authority of the respondent School also directed to act on such recommendation without further delay in the matter.
I make it clear that it shall be open to the respondent School Service Commission to verify with the issue as to whether the certificate of the writ petitioner is genuine or fabricated and if such certificate is found to be fabricated or forged, the Commission shall be at liberty to take up the issue of the writ petitioner with the Appellate Medical Board.
This writ petition stands disposed of.
There will be, however, no order as to costs. Let it be recorded that no allegation of forgery or fabrication of the certificate of disablement was raised against the writ petitioner in the impugned communication.
4Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Samapti Chatterjee, J.)