Indian Kanoon - Search engine for Indian Law

"3.In the related file mentioned above, a complaint against one candidate had been investigated. On that file it has been decided that Shri Adhikari Jena, Roll No.24039, may be excluded from empanelment, since he is partially deaf but the post had been notified for deaf. Therefore, (ix) Shri Adhikari Jena, Roll No.24039 should also be excluded taking the total number to nine".

5. The Respondents have annexed the result of the Stenography test and typing test conducted on 20.5.2009 and 2.9.2009, respectively in which against the applicant's name it is mentioned that he did not qualify in the speed test. It is the contention of the respondents that since the applicant is only partially deaf he is not eligible to be selected for the post of Junior Clerk-cum-Typist in response to the Advertisement dated 13.4.2005.

6. The applicant has filed a rejoinder on 16.11.2015 in which he has reiterated that he suffers 100% deafness and therefore, to categorize him as partially deaf is unfair. It is not for the vigilance cell to say who is deaf and who is partially deaf. Therefore, the report of the vigilance showing him partially deaf cannot be entertained by the respondents. The applicant has annexed the report of the Medical Board in his O.A. wherein his disability is being shown as 100%.

7. We have heard the arguments of the learned counsels from both the sides and perused the documents submitted by them. The learned counsel for the respondents relied upon the judgment of the Hon'ble Supreme Court in Magraj Patodia vs. R.K.Birla & Ors. (AIR 1971 SC 1295) to argue that a document which was procured by improper or even illegal means will be a bar to its admissibility if it is relevant and its genuineness proved. But while examining the proof given as to its genuineness the circumstances under which it came to be produced into court have to be taken into consideration. It is the contention of the respondents that there was some discrepancy in the documents submitted by the applicant and therefore, after the vigilance inquiry report, his candidature was rejected.

9. From the records it is seen that the applicant was referred for medical examination that was held on 22.5.2009. The certificate issued by the Medical Board and attached by the applicant have been issued on 16.6.2009, whereas the certificate annexed by the respondents was issued on 9.5.2002.All the certificates have been issued by the District Medical Board, Puri and obviously there is discrepancy in these three certificates. In the certificate issued in the Standard Format, the tick mark is close to Partially Deaf and D-Deaf has not been deleted as instructed in the format. It is difficult to come to a conclusion whether the applicant was partially deaf or deaf on the basis of the Disability Certificate issued on 16.6.2009 and the standard format of disability annexed at A/15. In the written notes of submission, the respondents have questioned the authenticity of certificates attached by the applicant. But this plea has not been taken in the counter filed by them. The respondents have admitted that the applicant had earlier submitted an old Disability Certificate dated 9.5.2002 and at the time of certificate verification, he was asked to furnish a fresh Disability Certificate in response to which he submitted a fresh certificate issued by the Chief District Medical Officer, Puri on 16.6.2009 in three pages. The respondents claim that this certificate shows his hearing impairment as partially deaf and the condition is progressive. The vigilance Department of the Railways after its investigation had advised to exclude the name of Shri Adhikari Jena from the selection list since he is partially deaf whereas the post has been notified for the deaf.

10. An analysis of the above position clearly points out to a discrepancy in the decision taken by the respondents inasmuch as they themselves have not accepted the old certificate of the year 2002 determining the extent of disability of the applicant and asked him to produce a fresh Disability Certificate. The applicant has undergone an examination by the District Medical Board, Puri, which at two different places have certified that the percentage of his disability was 100%. Regarding the question whether the applicant is deaf or partially deaf there is a slight confusion since the Medical Board has put the tick mark below the category D-Deaf and above PD-Partially Deaf. The Medical Board should have struck off the category which is not applicable in case of the applicant and they have failed to do so. When this categorization is read with the certificate that the applicant is 100% disabled the inescapable conclusion is that the applicant is deaf with 100% disability and is eligible to be considered against the hearing impaired quota. The respondents have also pointed out the fact that the applicant did not qualify in speed test of typewriting. However, the Railways themselves have made a provision that such candidates can be selected provisionally and can be given a chance to qualify in the typing test within a period of two years from the date of appointment. Respondents have questioned the authenticity of some of the documents and have cited the judgment of the Hon'ble Supreme Court in Magraj Patodia vs. R.K.Birla & Ors. (AIR 1971 SC 1295). We are not dealing with the issue of authenticity of the documents and therefore refraining from applicability of the case law. A prima facie perusal of the documents does not show any major inconsistency to affect the authenticity of the document. The only doubt raised is as to whether the applicant is deaf or partially deaf.