Jharkhand High Court
Amit Kumar Singh vs Punjab National Bank Through Zonal ... on 15 June, 2022
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.1157 of 2018
.......
Amit Kumar Singh ... ... PETITIONER
-V e r s u s -
1. Punjab National Bank through Zonal Manager, Human Resources Management Division, Bhikhaji Cama Place, New Delhi
2. Chief Manager, Punjab National Bank, Circle Office, Bagroy Market, Main Road, Ranchi ... RESPONDENTS .......
CORAM: - THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
For the Petitioner : Mr. Diwakar Upadhyay, Advocate
Ms. Rishi Bharti, Advocate
For the Respondents : Mr. Pratyush Kumar, Advocate
.......
16/ 15.06.2022 The petitioner has approached this Court with a prayer for quashing
of the communication dated 30.12.2017 (Annexure-11), whereby and whereunder, the appointment of the petitioner to the post of Clerk in Handicapped Quota has been cancelled on the ground that petitioner did not submit the disability certificate in terms of the Rights of Persons with Disabilities Act, 2016. Further, prayer has been made for a direction upon the respondents to restore the offer of appointment given to the petitioner vide communication dated 13.04.2017 for the said post and to treat the disability certificate of the petitioner as valid and legal in consonance with the terms of the advertisement.
The case of the petitioner lies in a narrow compass. An advertisement was floated by the Institute of Banking Personnel Selections for the post of Clerks in the year, 2016. The petitioner being eligible, applied for the same under disability quota and appeared in the recruitment process and qualified under UR-Hi Category and he was provisionally allotted Punjab National Bank. Accordingly, vide letter dated 13.04.2017 the respondent-Bank informed the petitioner that he has been allotted to work with their bank and asked the petitioner for submission of copies and testimonials on 24.04.2017 before the respondent No.2. On 24.07.2017, the petitioner appeared with all required certificates and testimonial including disability certificate issued by the competent authority under the Act of 1995 as per requirement of Advertisement. It is specific case of the petitioner that since the disability certificate was not in order as there was cutting in percentage of disability and type of disability was hand written, the respondents objected the same and as such, petitioner obtained a fresh disability certification issued by the Chief Medical Officer, Hajipur and 2 communicated the said fact to the respondents and also submitted the said certificate on 29.05.2017.However, on 30.12.2017, the petitioner received a communication from the respondent banks that the candidature of the petitioner has been cancelled. Hence, the petitioner has been constrained to knock the door of this Court.
Mr. Diwakar Upadhyay, learned counsel for the petitioner assisted by Ms. Rishi Bharti, learned counsel submits that impugned order dated 31.12.2017 is not tenable in the eyes of law as the petitioner has submitted certificates and testimonial as per the requirement of Advertisement. He submits that the disability certificate of the petitioner was issued by the Competent Authority under the jurisdiction of State of Bihar as the petitioner was a permanent resident of Vaishali District, which comes under the State of Bihar and not State of Jharkhand. He further argues that just to frustrate the claim of the petitioner, the respondents at some places have taken plea that disability certificate submitted by petitioner is not as per disability Act, 2016 whereas, at other places, they talk about Disability Act, 1995. The contradictory statements of the respondents is sufficient to show that with mala fide intention, they have rejected the candidature of the petitioner and as such, a direction be issued to the respondents to appoint the petitioner on the said post. To fortify his argument, learned counsel places heavy reliance in the case of Vikash Pratap Singh & Ors. Vs. State of Chhattisgarh & Ors., reported in (2013) 14 SCC 494 and submits that Rules of game cannot be changed in the midway once the game is started.
Per contra, counter-affidavit has been filed.
Mr. Pratyush Kumar, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that petitioner is not entitled for appointment to the said post as the disability certificate submitted by the petitioner is not in consonance with the requirement of Advertisement and that too not as per the format, annexed with Advertisement. He further submits that statutory form annexed with the Rules/Advertisement clearly speaks that disability of a candidate had to be permanent in nature, whereas, the disability certificate submitted by the petitioner shows that the petitioner's disability is temporary in nature. He further submits that the conditions of the advertisement is not challenged by the petitioner and further, petitioner has not been given any appointment letter. Justifying impugned 3 order, learned counsel submits that petitioner cannot be said to be having hearing impairment as defined in measurable terms u/S 2 (i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, as per the said provisions there has to be a loss of 60 decibels or more in the better ear in the conversational range of frequencies and as such, petitioner does not have the loss of 60 decibels or more in the both the ears in the conversational range of frequencies as per the Audiometry Reports of AIIMS, Patna and thus, he is not entitled for appointment.
Be that as, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons:-
a) The Disability Certificate of the petitioner has been issued by the Competent Authority. Admittedly, the petitioner belongs to District Vaishali, State of Bihar and as such, disability certificate has rightly been issued by the Medical Officer, Vaishali, which is not in dispute.
b) The arguments of the learned counsel for the respondents that the certificates in question has to be inconsonance with Rules, 1995 is not acceptable to this Court in view of the letter dated 14.06.2017, which is annexed in the Counter-affidavit, in which it has been clearly stipulated that 'in this context, it is to inform you that in term of section 102 of RPWD (The Rights of Persons with Disabilities Act, 2016), the Act of 1995 stands repealed.'
c) The respondents by taking shelter of 2016 Act, submits that 1995 Act has been repealed, the said argument of the learned counsel for the respondents is not acceptable to this Court as it can be comfortably inferred that the respondents have demolish their own case by bringing this on record.
d) This Court is in full agreement with the submission of learned counsel for the petitioner that terms and conditions of the advertisement need not be challenge as he is fully relying on the terms and conditions of the advertisement in which it has not been clearly mentioned that the disability is required to be permanent in nature or temporary in nature.
e) From perusal of the Annexure-3 to the writ petition, it appears that 4 provisional allotment for the post of SWO in clerical Cadre was issued to the petitioner for furnishing the documents and the petitioner has already submitted documents including disability certificate and as such, in view of the said letter, the petitioner is entitled for offer of appointment.
As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, impugned order dated 30.12.2017 is not tenable in the eyes of law and same is hereby quashed and set aside. As a result of quashment of impugned order, the respondents are directed to issue offer of appointment to the petitioner, subject to verifications of the certificates and testimonials within a period of six weeks from the date of receipt of a copy of this order.
With the aforesaid observation and direction, writ petition stands allowed.
(Dr. S.N. Pathak, J.) punit/-