Samsuddin Ahmed v. The Union of India and 8 Ors

ORDER Date : 21-12-2023 Heard Mr. S. K. Roy, learned counsel appearing for the writ petitioner. I have also heard Mr. B. Choudhury, learned standing counsel, State Level Recruitment Committee, Page No.# 3/6 Assam, Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, Assam, Ms. D. Musahary, learned standing counsel, Education Department, Assam, Mr. J. Gogoi, learned Standing Counsel, Social Justice and Empowerment Department, Assam, Mr. B. Gogoi, learned Standing Counsel, Finance Department, Assam and Mr. D. Upamanyu, learned Standing Counsel, Health and Family Welfare Department, Assam, appearing for the respective official respondents. The writ petitioner is in this case is holding Disability Certificates issued by the competent authority under the Department of Social Justice and Empowerment, Assam, indicating the degree and nature of his disability. According to the certificates held by him, the petitioner meet the "Bench Mark" disability criteria of 40% disability, thus making him eligible to seek Government employment as candidate belonging to the Person with Disability (PwD) category. As such, on the strength of this certificate, the petitioner 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 has been asked to appear before a specially constituted Medical Board so as to verify/reassess the nature and extent of the disability suffered by him. Aggrieved thereby, the present writ petition has been filed inter alia contending that since the petitioner is holding a Disability Certificate issued by the competent authority, there was no further requirement under the law or any legal justification to subject the petitioner to further scrutiny by another Medical Board, as has been done in his case. Taking note of the grievance expressed by the petitioner, this Court had directed Page No.# 4/6 the learned Standing Counsel, Health and FW Department, Assam, to obtain instructions. Today, when the matters were called up, Mr. D. Upamanyu, learned Standing Counsel, Health and FW Department, Assam, submits that the role of the Health and FW Department, Assam, in this case, is only to the extent of constituting a Special Medical Board so as to assess the nature and extent of disability suffered by the candidate, 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. Upamanyu, 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. Ms M. Bhattacharjee, learned Additional Senior Government Advocate, Assam and Mr. J. Gogoi, 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, Ms. Bhattacharjee further submits that it is permissible under the law to subject the candidate for verification/reassessment of his disability through a competent mechanism and hence, this exercise. After hearing the learned counsel for the parties, this Court finds that although the Page No.# 5/6 petitioner is holding Disability Certificates which project him as candidates suffering from "bench mark" disability, yet, it appears that as per the opinion of the specially constituted Medical Board, the disability of the writ petitioner has 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, this writ petition is being disposed of by directing the respondents to communicate the decision of the authorities pertaining to the disability status vis-à-vis his claim for appointment of the writ petitioner against the post 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 petitioner to assail the decision of the Medical Board and/or Department of Social Justice and Empowerment, by filing fresh writ petition, if so advised. Writ petition stands closed.

JUDGE GS Page No.# 6/6 Comparing Assistant

PageoNo.#o1/6 GAHC010281752023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/7454/2023o SAMSUDDINoAHMEDo SONoOFoSRIoHABIBORoRAHMAN,oRESIDENToOFoVILLAGE-oFOLIMARI,oPOST OFFICE-oLAKHIPUR,oPOLICEoSTATION-LAKHIPUR,oDISTRICT-oGOALPARA,o ASSAM,oPIN-o783129 VERSUSo THEoUNIONoOFoINDIAoANDo8oORSo REPRESENTEDoBYoTHEoSECRETARY,oMINISTRYoOFoSOCIALoJUSTICEoANDo EMPOWERMENT,oGOVERNMENToOFoINDIA,oSHASTRIoBHAWAN,oNEWo DELHI,oDELHI-o110001 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoPRINCIPALoSECRETARYoTOoTHEoGOVERNMENTo OFoASSAM oPERSONNELoDEPARTMENT oDISPUR oJANATAoBHAWAN oGUWAHATI-6 3:THEoPRINCIPALoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM oDEPARTMENToOFoSOCIALoJUSTICEoANDoEMPOWERMENT oDISPUR oJANATAoBHAWAN oGUWAHATI-6 4:THEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVERNMENToOFo ASSAM oSECONDARYoEDUCATIONoDEPARTMENT oDISPUR oJANATAoBHAWAN oGUWAHATI-6 Page No.# 2/6 5:THE DIRECTOR OF SECONDARY EDUCATION ASSAM 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 JOINT DIRECTOR OF HEALTH SERVICES GOALPARA DISTRICT- GOALPARA ASSAM PIN- 783101 9:THE MEDICAL BOARD GAUHATI MEDICAL COLLEGE AND HOSPITAL GUWAHATI-32 ASSA Advocate for the Petitioner : MR. S K ROY Advocate for the Respondent : DY.S.G.I. BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM