Kaushik Sarma Nath v. The Union of India and 8 Ors

ORDER Date : 19/12/2023

Heard Mr. S. K. Roy, learned counsel appearing for the writ petitioner(s) in this batch of writ petitions. I have also heard Mr. B. Choudhury, learned Standing Counsel, State Level Recruitment Commission (SLRC), Mr. J.K. Goswami, learned Additional Senior Government Advocate, Assam, Mr. R. M. Das, learned Standing Counsel, Social Justice and Empowerment Department, Assam, Mr. S.K. Medhi, learned CGC, Mr. B. Gogoi, learned Standing Counsel, Finance Department, Assam, Ms. S. Chutia, learned Standing Counsel, Elementary Education Department, Assam, and Mr. D. Upamanyu, learned Standing Counsel, Health and Family Welfare Department, Assam, appearing for the respective official respondents. The controversy arising in all these writ petitions, is common and, therefore, these cases have been bunched together. The writ petitioners in all these cases are individually holding Disability certificates issued by the competent authority under the Department of Social Justice and Empowerment, Assam, indicating the degree and nature of their disability. According to the certificates held by them, each of the petitioners meet the "Bench Mark" disability criteria of 40% disability, thus making them eligible to seek Government employment as candidates belonging to the Person with Disability (PwD) category. As such, on the strength of these certificate(s), the petitioner(s) had applied for and had taken part in the recruitment process initiated by the Government departments for filling up of a number of Grade-IV posts. However, after the selection process was over, the writ petitioner(s) have been asked to appear before a specially constituted Medical Board so as to verify/reassess the nature and extent of the disability suffered by them. Aggrieved thereby, the present writ petitions have been filed inter alia contending that since the petitioners are holding a Disability Certificate issued by the competent Page No.# 9/10 authority, there was no further requirement under the law or any legal justification to subject the petitioner(s) to further scrutiny by another Medical Board, as have been done in their cases. Taking note of the grievance expressed by the petitioners, this Court had directed the learned Standing Counsel, Health and FW Department, Assam, to obtain instructions. Today, when the matters were called up, Mr. D.P. Borah, learned Standing Counsel, Health and FW Department, Assam, submits that the role of the Health and FW Department, Assam, in these cases, is only to the extent of constituting a Special Medical Board so as to assess the nature and extent of disability suffered by the candidates, on the request of the Nodal Department i.e. the Department of Social Justice and Empowerment. Therefore, the Health Department does not have any independent stand in the matter. He further submits that on such verification, the disability of some of the candidates have been found to be less than the "Bench Mark" of 40% disability. Mr. Borah, however, submits that the outcome of the assessment by the specially constituted Medical Board have already been forwarded to the Social Justice and Empowerment Department, Assam, in respect of each candidate examined by the Board. Mr. R. Dhar, learned Additional Senior Government Advocate, Assam and Ms. R.M. Deka, learned Standing Counsel, Social Justice and Empowerment Department, Assam, have submitted that in many cases, it has been found that the disability condition varies from that mentioned in the certificates and hence, this exercise. By producing a copy of the Office Memorandum dated 21/05/2022 issued by the Government of Assam, Department of Personal, Dispur, more particularly, clause-5 of the OM, Mr. Dhar further submits that it is permissible under the law to subject the candidates for verification/reassessment of their disability through a competent mechanism and hence, this exercise. After hearing the learned counsel for the parties, this Court finds that although all the petitioners are holding Disability Certificates which project them as candidates suffering from "bench mark" disability, yet, it appears that as per the opinion of the specially constituted Medical Board, the Page No.# 10/10 disability of the writ petitioners have been found to be less than the "Bench Mark" criteria of 40% disability. There may be cases where the extent of disability of some of the candidates have undergone changes since the issuance of their Disability Certificates or there was some error in assessing their disability status either by the original authority issuing the Certificates or by the Specially Constituted Medical Board. However, the said aspect of the matter cannot be gone into by this Court unless the petitioners are communicated with the decision of the authorities in this regard, thereby, giving them an opportunity to assail such decision, on merit, if so advised. As such, without expressing any opinion on the stand of the learned departmental counsel or the findings and observations of the Medical Board, these writ petitions are being disposed of by directing the respondents to communicate the decision of the authorities pertaining to the individual disability status vis-a-vis their claim for appointment of each of the writ petitioners against the posts applied for, in writing, within four weeks from the date of receipt of a certified copy of this Order. Liberty is granted to the writ petitioners to assail the decision of the Medical Board and/or Department of Social Justice and Empowerment, by filing fresh writ petitions, if so advised. Writ petitions stand closed.

JUDGE sukhamay Comparing Assistant

PageoNo.#o1/10 GAHC010264272023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/6885/2023o HASMAoBEGUMo D/O-oSHRIoMAFIJUDDINoAHMED,o R/O-oVILLAGE-oSIDHABARI,oPART-II,o POSToOFFICE-oBAKAITARI,o POLICEoSTATION-oMATIA,o DISTRICT-oGOALPARA,oASSAM,o PIN-o783125. VERSUSo THEoUNIONoOFoINDIAoANDo8oORSo REPRESENTEDoBYoTHEoSECRETARY,oMINISTRYoOFoSOCIALoJUSTICEoANDo EMPOWERMENT,oGOVERNMENToOFoINDIA,oSHASTRIoBHAWAN,oNEWo DELHI-o110001. 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoPRINCIPALoSECRETARYoTOoTHEoGOVERNMENTo OFoASSAM oPERSONNELoDEPARTMENT oDISPUR oJANATAoBHAWAN oGUWAHATI-6. 3:THEoPRINCIPALoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM oDEPARTMENToOFoSOCIALoJUSTICEoANDoEMPOWERMENT oDISPUR oJANATAoBHAWAN oGUWAHATI-6. 4:THEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVERNMENToOFo oSECONDARYoEDUCATIONoDEPARTMENT Page No.# 2/10 DISPUR JANATA BHAWAN GUWAHATI-6. 5:THE DIRECTOR OF SECONDARY EDUCATION KAHILIPARA GUWAHATI-19. 6:THE STATE LEVEL RECRUITMENT COMMISSION FOR CLASS-IV POSTS REPRESENTED BY ITS CHAIRMAN/ SECRETARY ASSAM ADMINISTRATIVE STAFF COLLEGE JAWAHARNAGAR KHANAPARA GUWAHATI-22. 7:THE SECRETARY TO THE GOVT. OF ASSAM MEDICAL EDUCATION AND RESEARCH DEPARTMENT DISPUR GUWAHATI-6. 8:THE ISSUING MEDICAL AUTHORITY GOALPARA (DEPARTMENT OF EMPOWERMENT OF PERSONS WITH DISABILITIES MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT GOVERNMENT OF INDIA) 9:THE MEDICAL BOARD GAUHATI MEDICAL COLLEGE AND HOSPITAL GUWAHATI-32 Advocate for the Petitioner : MR. S K ROY Advocate for the Respondent : DY.S.G.I. Linked Case : WP(C)/6901/2023 MIZANUR RAHMAN S/O- SAMSUL HOQUE R/O- VILLAGE BORBILA PART I PageoNo.#o3/10 o P.O-oHOWRARPAR.o P.SoANDoDIST-oDHUBRI o PIN-783324 oVERSUS THEoUNIONoOFoINDIAoANDo8oORS REPRESENTEDoBYoITSoSECRETARY oMINISTRYoOFoSOCIALoJUSTICEoANDoEMPOWERMENT oGOVERNMENToOFoINDIA oSHASTRIoBHAWAN oNEWoDELHI-110003. 2:THEoSTATEoOFoASSAM REPRESENTEDoBYoTHEoPRINCIPALoSECRETARYoTOoTHEoGOVT.oOFoASSAM oPERSONNELoDEPARTMENToDISPUR oGUWAHATI-06 o3:THEoPRINCIPALoSECRETARY TOoTHEoGOVT.oOFoASSAM oDEPARTMENToOFoSOCIALoJUSTICEoANDoEMPOWERMENToDISPUR oJANATAoBHAWANo oGUWAHATI-06. o4:THEoCOMMISSIONERoANDoSECRETARY TOoTHEoGOVT.oOFoASSAM oELEMENTARYoEDUCATIONoDEPARTMENT oDISPUR oGUWAHATI oASSAM o781006. o5:THEoDIRECTOR ELEMENTARYoEDUCATION oASSAM oKAHILIPARA oGUWAHATI-o781019 o6:THEoSTATEoLEVELoRECRUITMENToCOMMISSIONoFORoCLASSoIVoPOSTS REP.oBYoITSoCHAIRMANo/oSECRETARYo oASSAMoADMINISTRATIVEoSTAFFoCOLLEGE oJAWAHARNAGAR oKHANAPARA oGUWAHATI-22 o7:THEoSECRETARY TOoTHEoGOVT.oOFoASSAM oMEDICALoEDUCATIONoANDoRESEARCHoDEPARTMENT oDISPUR oGUWAHATI-06 Page No.# 4/10 8:THE ISSUING MEDICAL AUTHORITY DHUBRI (DEPARTMENT OF EMPOWERMENT OF PERSONS WITH DISABILITIES MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT GOVERNMENT OF INDIA) O/O THE JOINT DIRECTOR OF HEALTH SERVICES JAIL ROAD WARD NO-7 DHUBRI PIN-783301 9:THE MEDICAL BOARD GUWAHATI MEDICAL COLLEGE AND HOSPITAL GUWAHATI-32 ------------ Advocate for : MR. S K ROY Advocate for : DY.S.G.I. appearing for THE UNION OF INDIA AND 8 ORS Linked Case : WP(C)/6877/2023 KAUSHIK SARMA NATH S/O- ANIL SARMA R/O- VILLAGE- NIZ SATHISAMUKA POST OFFICE- SATHISAMUKA POLICE STATION- PATACHARKUCHI DISTRICT- BAJALI (BARPETA) PIN- 782124. VERSUS THE UNION OF INDIA AND 8 ORS REPRESENTED BY THE SECRETARY MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT GOVERNMENT OF INDIA SHASTRI BHAWAN PageoNo.#o5/10 o NEWoDELHI-o110001. 2:THEoSTATEoOFoASSAM REPRESENTEDoBYoTHEoPRINCIPALoSECRETARYoTOoTHEoGOVERNMENToOFo o PERSONNELoDEPARTMENT oDISPUR oJANATAoBHAWAN oGUWAHATI-6. o3:THEoPRINCIPALoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM oDEPARTMENToOFoSOCIALoJUSTICEoANDoEMPOWERMENT DISPUR oJANATAoBHAWAN oGUWAHATI-6. o4:THEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVERNMENToOFo oELEMENTARYoEDUCATIONoDEPARTMENT DISPUR oJANATAoBHAWAN oGUWAHATI-6. o5:THEoDIRECTORoOFoELEMENTARYoEDUCATION oASSAM KAHILIPARA oGUWAHATI-19. o6:THEoSTATEoLEVELoRECRUITMENToCOMMISSIONoFORoCLASS-IVoPOSTS REPRESENTEDoBYoITSoCHAIRMAN/oSE