Resolution dated 14th January, 2011, issued by the Social
Justice and Special Assistance Department, Government of
Maharashtra, and in particular clause No.5 thereof, it is
abundantly clear that, while conducting medical
examination of the candidates from handicapped category,
the medical examination should be conducted like in case
of candidates being selected from the general category. No
questions should be raised about handicapped certificate,
as per the relevant clause No.5 of the said Government
Resolution. The criteria laid down by the
Government while issuing such certificates if
followed and detailed aspects in this regard
are verified and if it is made available to the
appointing authority the said authority will
decide as to whether said person is entitled for
reservation meant for Physically Challenged
Category or not.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3972 OF 2015
Maheshkumar Balasaheb Naik, Vs The State of Maharashtra
CORAM: S.S.SHINDE & A.M.BADAR, JJ.
Dated : 21.09.2015
Citation;2016 (3) ALLMR 149
3] This Petition takes an exception to the letter
dated 3rd January, 2015, written by the Respondent No.3 i.e.
the Chief Executive Officer, Zilla Parishad, Ahmednagar, to
the Dean, Medical Board, Sasoon Hospital, Pune. It appears
that, the letter dated 24.11.2014 was addressed to the
petitioner, giving reference of the letter written by the Chief
Executive Officer, Zilla Parishad, Ahmednagar, to the Block
Development Officer, Panchayat Samiti, Rahata. By letter
dated 10th November, 2014, it was communicated by the
Chief Executive Officer, Zilla Parishad, Ahmednagar to all
the Head of the Departments of Zilla Parishad, Ahmednagar
and Block Development Officers of Panchayat Samities, to
send names of all those employees, who are appointed
from the handicapped / hearing impaired and low vision
categories, so as to refer them for medical re-examination.
The petitioner was asked to appear before the Civil Surgeon
for medical re-examination, and submit medical certificate
after re-medical examination. Aggrieved by the same, the
petitioner has filed the present Writ Petition.
4] It is the case of the petitioner that, the
petitioner has entered in the service of respondent No.3 as
a Junior Assistant in the Year 1996. The petitioner’s father,
unfortunately died during the course of employment with
the respondent No.3 as a Primary Teacher. The petitioner
was appointed on compassionate ground. The petitioner,
thereafter, successfully passed the Departmental
Examination, and thereafter, he was promoted on the post
of Senior Assistant. Since the petitioner was appointed
from unreserved category candidate and being physically
handicapped candidate, he has applied for further
promotional post of Office Superintendent with the office of
the respondent No.3 along with his disability certificate.
The petitioner applied the office of the respondent No.3,
placing on record disability certificate. He did produce the
Audiogram report as well.
5] It is further the case of the petitioner that, the
under Secretary, Rural Development and Water
Conservation Department, Mantralaya, Mumbai, has
communicated to all the Divisional Commissioners by its
letter dated 5th January, 2010 that, there is provision in the
Government Resolution dated 05.03.2002 issued by the
General Administration Department, that appointments by
nomination [direct] cannot exceed 75%, it means 25%
posts are to be filled in by promotion. The aforesaid
communication was in response to the query made about
reservation to the post of Office Superintendent from the
handicapped category.
6] It is further the case of the petitioner that, the
Divisional Commissioner, Nashik Division, Nashik by his
letter dated 16.06.2010 communicated the respondent
No.3 that, perception of respondent No.3 that, in case of
direct recruitment, there can not be reservation for
handicapped category for the post of Office Superintendent
is not in consonance with the afore mentioned Government
Resolution, and the policy of State Government.
7] It is further the case of the petitioner that, the
respondent No.3 by his order dated 10.10.2010 /
13.10.2010 issued promotional order in favour of various
candidates from the post of Senior Assistant to the post of
Office Superintendent, and avoided promotion to the
petitioner intentionally and with a view to deprive the
legitimate right of the petitioner to be appointed on the
post of Office Superintendent.
8] It is the further case of the petitioner that, since
the petitioner has noticed that, the respondent No.3 is
avoiding the petitioner to be appointed on the post of Office
Superintendent from the Physically handicapped category,
the petitioner had, therefore, approached the Divisional
Commissioner, Nashik Division, Nashik, by filing Appeal
under Rule 14 of the Maharashtra Zilla Parishad District
Services [Discipline & Appeal] Rules, 1964, praying therein
that, the respondent No.3 intentionally avoided to give
promotion to the petitioner on the post of Office
Superintendent from the reserved category of physically
handicapped candidate, though the petitioner is eligible
and entitled on the said post, and the direction may be
issued to respondent No.3 to appoint the petitioner on the
post of Office Superintendent. The Divisional Commissioner
by its Judgment and Order dated 25.10.2011 passed in
Appeal No.41/2011, was pleased to partly allow the appeal
filed by the petitioner, and was pleased to direct the
respondent No.3 to examine the petitioner’s case under the
provisions of Government Resolution dated 14.01.2011,
and take appropriate decision.
9] It is further the case of the petitioner that, the
petitioner has also approached to the appropriate authority
and Commissioner for Handicapped Welfare, Maharashtra
State, Pune, by filing complaint under Clause 62 of the
Handicapped Persons [Equal Opportunity, Protection of
Rights and Full Participation] Ordinance, 1995, thereby
prayed that, the respondent No.3 is intentionally avoiding
to issue promotional order in favour of the petitioner on
promotional post of Office Superintendent from reserved
category of physically handicapped candidate. The learned
Commissioner for Handicapped Welfare, Maharashtra State,
Pune was pleased to partly allow the complaint filed by the
petitioner, thereby directing the respondent No.3 to take
appropriate decision for appointing the petitioner on higher
promotional post of Office Superintendent under the
provisions of Government Resolution dated 05.03.2002 and
17.03.2011, in consonance with the guidelines issued by
the Central Government dated 29.12.2005 and pass an
appropriate order within two months from 17.02.2012.
10] It is the further case of the petitioner that, since
both the higher authorities have directed the respondent
No.3 to take appropriate decision, appointing the petitioner
on higher promotional post of Office Superintendent from
the reserved category, the respondent No.3 did not pay
heed towards the oral requests made by the petitioner.
Therefore, the petitioner was constrained to file detailed
representation dated 23.02.2012, thereby requesting the
respondent No.3 to appoint him on higher promotional post
of Office Superintendent with immediate effect. It is
further the case of the petitioner that, the Divisional
Commissioner, Nashik Division, Nashik, by his letter dated
27.06.2012 informed the respondent No.3 that, appropriate
orders are passed in Appeal No.41/2011 thereby partly
allowing the appeal filed by the petitioner, and it was,
therefore, directed to the respondent No.2 that, appropriate
further action may be taken in respect of the petitioner’s
case.
11] It is further case of the petitioner that, since the
respondent No.3 had not paid heed to the Judgment and
Order dated 25.10.2011, passed in Appeal No.41/2011 by
the Divisional Commissioner, Nashik, and not initiated
further appropriate action appointing the petitioner on a
promotional post of Office Superintendent, therefore, the
petitioner again constrained to file representations dated
14.10.2012 and 15.10.2012 with the office of Additional
Divisional Commissioner, Nashik Division, Nashik. It is
further the case of the petitioner that, in order to harass the
petitioner, the respondent No.3 by his letter dated 3rd May,
2013 communicated the District Civil Surgeon, Ahmednagar
to examine the disability certificate issued in favour of the
petitioner from his office, and also submit a report as to
whether the said certificate is issued from Civil Surgeon’s
office or not, knowing the fact that, the petitioner has
already submitted the said certificate of examination by the
Expert Medical Board along with audiogram way back in the
Year 2009. It is further the contention of the petitioner
that, though it was not legal and proper to go before the
same Medical Board for same physical examination, which
is already done, and issued the said certificate in favour of
the petitioner, to obey the orders of Higher authority, the
petitioner again remained present with the office of the
Civil Surgeon, Ahmednagar for his physical examination,
and the office of Civil Surgeon issued examination
certificate dated 21.05.2013, mentioning therein that, the
petitioner is fit to be appointed on promotional post of
Office Superintendent.
12] It is further the case of the petitioner that, the
office of the Civil Surgeon, Ahmednagar, by his letter dated
08.08.2013, communicated to the office of the respondent
No.3 that, the disability certificate issued in favour of the
petitioner is a genuine certificate, and it was issued after
examination of the petitioner by the Expert Medical Board
and the entry in this regard is also available in the record of
the Civil Hospital. It is further the case of the petitioner
that, the representation dated 17.11.2009, the orders
passed in Appeal No.41/2011 and the orders passed in
Appeal No.418/2012 dated 17.02.2012, were came to be
obeyed by the respondent No.3 after more than four years,
and that too after extreme mental as well as physical agony
suffered by the petitioner, thereby appointing the petitioner
on the post of Office Superintendent, Group-II on a
promotional post, to which the petitioner was legally
eligible and entitled.
13] It is further the case of the petitioner that, on
10.11.2014, since the respondent No.3 was compelled to
issue promotion order in favour of the petitioner, appointing
him on the promotional post of Office Superintendent, the
Secretary, Maharashtra State Handicapped Association,
Mumbai has filed some complaint in respect of the
Physically Handicapped Candidates with the office of the
respondent No.3, therefore, the respondent No.3 had
communicated all the head of Department and Block
Development Officer to get medically re-examined all the
physically handicapped employees serving under their
control.
14] It is further the case of the petitioner that, the
respondent No.4 by its communication dated 24.11.2014
directed the petitioner to submit himself for medical reexamination
within 8 days, and submit medical certificate /
report issued by the District Civil Surgeon, Government
Hospital.
15] It is the case of the petitioner that, the
respondent No.2 by his Circular dated 19.10.2011,
forwarded the guidelines of the Central Government
published on 10.06.2009 to all concerned. It is the case of
the petitioner that, the Government of Maharashtra, by
Government Circular dated 06.05.2004, formulated and
circulated the common guidelines, in respect of reservation
meant for persons from handicapped category on various
posts, and the procedure to fill in those posts. In the said
explanation at serial No.8, the State Government was
pleased to state that, the certificate issued from the District
Hospital, in which medical examination / check up, has
been conducted of the handicapped candidates, such
certificate should be treated as basic certificate. It is the
case of the petitioner that, the under Secretary, Public
Health Department, Mantralaya, Mumbai was pleased to
issue Circular dated 29.04.1999, thereby clarifying the fact
that, all the District Hospitals, Medical Board, the District
Civil Surgeon and Medical Superintendents are the
Presiding Officers for the protection of Section 2 of subsection
(T) of Handicapped Persons [Equal Opportunity,
Protection of Rights and Full Participation] Ordinance 1995.
It is the case of the petitioner that, the respondent No.1 by
Government Resolution dated 05.03.2002, clarified the fact
that, as per the policy of Central Government, the
promotional posts for physically handicapped i.e. Blind, Low
Vision, Deaf should be reserved up to 3%.
16] It is the case of the petitioner that, on
14.01.2011, the Social Welfare and Special Aid Department,
Mantralaya, Mumbai by his Circular dated 14.01.2011,
formulated and issued the guidelines in respect of
handicapped Persons [Equal Opportunity, Protection of
Rights and Full Participation] Ordinance 1995, in which in
clause No.5, it is specifically clarified that, the physical
examination of handicapped person should be done like the
candidates from General Category.
17] It is further the case of the petitioner that, the
Dean, Medical Board, Sasoon Hospital, Pune was informed
by letter dated 03.01.2015 by the respondent No.3 and the
petitioner was also directed to attend the physical
examination, and also verification of his disability certificate
immediately at the Sasoon General Hospital, Pune, stating
therein that, the petitioner was given promotion on the post
of Office Superintendent, but whether petitioner is eligible
to be allowed to work on the said promotional post of office
Superintendent as the petitioner is physically deaf. The
respondent No.3 was also pleased to inform the Medical
Board, Sasoon Hospital, Pune to specify the percentage of
disability and capacity to hear by ear and to submit such
fact finding report to the office of respondent No.3. It was
informed to the petitioner that, if he fails to attend the
Medical Board at Sasoon Hospital, Pune for verification of
his disability certificate within 15 days, he would be
reverted back to his original post of Senior Assistant from
the post of Office Superintendent and also liable to take
further disciplinary action under Section 4 of Maharashtra
Zilla Parishad District Services [Discipline and Appeal]
Rules, 1964. Therefore, the learned counsel appearing for
the petitioner submits that, the Petition may be allowed.
18] On the other hand, the learned counsel
appearing for the respondent No.3 invited our attention to
the averments in the affidavit-in-reply and made the
following submissions:
19] It is submitted that, the petitioner was given
promotional order, and he was posted in Health
Department of Zilla Parishad, subject to the result of the
appeal pending before the Additional Commissioner,
Nashik. The Zilla Parishad received anonymous complaint
on 09.07.2014, regarding promotion of the petitioner. It is
stated that, as per the Government Resolution dated
05.03.2002, the deaf persons cannot be promoted on the
post of Office Superintendent. The Maharashtra Rajya
Apang Karmachari Sanghatana sent a letter dated
18.10.2004 to the Zilla Parishad, requesting to do reverification
of Disability Certificate of the employees as the
said Association has noticed that, percentage of
handicapped employees is increasing and their disability
certificates are doubtful. As per the Circular dated
14.01.2014, the re-verification of the Disability Certificate of
the handicapped employees is also necessary. In view of
this, the petitioner was asked to appear before the Medical
Board of Sasoon Hospital as the Disability Certificate of the
petitioner dated 21.05.2013 bears a mark that ‘except
handicap not examined’ and there are also obliterations by
scratching the words ‘Senior Assistant’ and by writing
thereon, ‘Office Superintendent’. But, the said obliteration
is not signed by anyone. It is further submitted that, the
post of Office Superintendent is a key post in the
administration and coordinates between Higher Officers
and their Subordinates. Equally, the Office Superintendent
is also required to receive phone calls, and act on the said
phone calls. It is somewhat difficult for deaf persons to
receive phone calls and make further communications with
the various authorities. In view of this, guidance of the
Medical Board was sought, as to whether the petitioner
would be competent regarding receiving phone calls and
making further communication with various authorities.
Therefore, the learned counsel appearing for the
respondent No.3 prays that, the Petition may be dismissed.
20] We have given careful consideration to the
submissions of the learned counsel appearing for the
petitioner, and the learned AGP appearing for the
Respondent – State and the learned counsel appearing for
the respondent No.3. With their able assistance, we have
carefully perused the pleadings in the Petition and grounds
taken therein, annexure thereto, and the copies of the
Medical Certificates produced on record by the petitioner.
Upon careful perusal of the copies of the certificates, it
appears that, the Medical Officer, General Hospital,
Ahmednagar has issued audiogram, and disability
certificate in favour of the petitioner is also issued by the
Civil Surgeon, District Hospital, Ahmednagar. It further
appears that, the petitioner was required to approach the
various authorities, since he was not being promoted on the
higher post from hearing impaired category.
21] Upon careful perusal of the documents placed
on record, the Government Resolution dated 5th March,
2002 provided promotion for class-III post from Class-IV
post from the handicapped category.
22] Upon careful perusal of the Government
Resolution dated 14th January, 2011, issued by the Social
Justice and Special Assistance Department, Government of
Maharashtra, and in particular clause No.5 thereof, it is
abundantly clear that, while conducting medical
examination of the candidates from handicapped category,
the medical examination should be conducted like in case
of candidates being selected from the general category. No
questions should be raised about handicapped certificate,
as per the relevant clause No.5 of the said Government
Resolution. Clause No.5 of the said Government Resolution
reads thus:
5-{Vernaculars omitted}
The
true translation i.e. as translated by the
office Translator of the said clause, reads thus:
5. The appointing authority should give
clear cut instructions to the concerned Medical
Officer by the letter that the candidates who
have selected and sought benefit under
Physically Challenged category by way of
reservation meant for Physically Challenged
persons and said candidates have selected in
the category of Blind / Orthopedic / Deaf and
Dumb before their appointment. And
accordingly those candidates should be
medically examined as if general category
candidates. Issues of their Physically
Challenged Certificate or disability should not
be raised. The criteria laid down by the
Government while issuing such certificates if
followed and detailed aspects in this regard
are verified and if it is made available to the
appointing authority the said authority will
decide as to whether said person is entitled for
reservation meant for Physically Challenged
Category or not.
23] Upon perusal of the documents placed on
record, in the light of the Government Resolution dated 6
th
May, 2004, issued by the General Administration
Department, Government of Maharashtra, the certificate
submitted by the petitioner from the category of ‘hearing
impairment’ is in conformity with the said Government
Resolution. It further appears that, before appointment of
the petitioner, the petitioner did appear before the Civil
Surgeon, General Hospital, Ahmednagar and the disability
certificate has been issued by the said Authority,
mentioning therein that, the petitioner’s disability is more
than 40%.
24] As already observed, the audiogram was also
submitted. Therefore, having been submitted such disability
certificate issued by the Civil Surgeon, General
Administration, Ahmednagar with audiogram, the impugned
communication asking the petitioner to submit himself once
again for medical examination appears to be contrary to
the Government Resolution dated 14th January, 2011. As
already observed, the petitioner, on fulfilling parameters
laid down as guidance in the Government Resolution dated
6th May, 2004, issued by the General Administration
Department, was promoted to the post of Office
Superintendent.
25] Therefore, by issuing the impugned
communication contrary to the spirit of the above
mentioned Government Resolutions, asking the petitioner
to re-examine himself, and submit fresh medical certificate,
appears to be without any legal basis. If the respondents
feel that, the petitioner should be medically re-examined
for compelling reasons, they have to do the said exercise
within the permissible limits of provisions of said Act,
Government Resolutions issued by the State Government
on subject, and not contrary to the spirit of the provision of
said Act or Government Resolutions issued by the State
Government. However, in absence of any such exercise in
adherence to provisions of Act / Government Resolutions,
the impugned communication cannot sustain, accordingly,
the impugned communication dated 24.11.2014 issued by
the Block Development Officer, Panchayat Samiti, Rahata,
and impugned letter dated 3rd January, 2015, issued by the
Respondent No.3 i.e. the Chief Executive Officer, Zilla
Parishad, Ahmednagar, qua the present petitioner, in the
peculiar facts of the present case and in the light of
documents placed on record, stands quashed.
26] Rule made absolute in above terms. Writ
Petition stands disposed of accordingly.
Sd/- Sd/-
[A.M.BADAR] [S.S.SHINDE]
JUDGE JUDGE
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