ARUN SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Whether amputation of both the arms (bilateral upper limb amputee) is a disability which precludes an otherwise qualified Assistant Professor of Bengali from discharging his duties, is what Mr. Sanyal wants me to decide in this writ petition. However, I am afraid that WP No.29975 (W) of 2017 [Dr. Arun Sarkar- v-State of West Bengal and Others] does not really ask for this in terms, and there is no challenge to any refusal of the college authorities to appoint him on any ground. What it seeks is that the Respondents No.4 to 6, being the College Authorities, issue him with an appointment letter in terms of the recommendation of the College Service Commission made after due process of selection, dated April 27, 2019, and to allow him to join in the substantive post of Assistant Professor in Bengali of Acharya Girish Chandra Bose College, 35, Rajkumar Chakraborty Sarani (Scott Lane) Kolkata - 700 009 and to pay him the salary in accordance with law, month by month.

(2.) The facts are not in dispute. The petitioner had suffered a train accident while working as an Assistant Teacher in a high school, underwent a bilateral amputation of the upper limbs, and claims to be 80% disabled. He was thereafter accommodated in the physically handicapped category of Assistant Teachers through the West Bengal School Service Commission. He was selected as a physically handicapped category candidate by the West Bengal College Service Commission, and joined service on its recommendation, at the Kandi Raj College in Bengali. It is the case of the petitioner that his present residence is at Naihati and it is not possible for him to travel 480 km every day to serve at Kandi while staying at Naihati; at the same time, it is not possible for him to live all alone at Kandi, after amputation of both the arms. He claimed that it was not possible for him to shift his residence to Kandi from Naihati because one of his daughters was studying at a school in Naihati and the other at a college in Kolkata. This being the position the other family members of the petitioner's family could not relocate to Kandi, the place of posting of the petitioner. So, the petitioner sought appointment as an in-service candidate and applied under the advertisement No.1/2015 for the post of Assistant Professor in a vacancy of physically challenged category and was successful in the duly held selection process, and was recommended by the West Bengal College Service Commission by a letter dated April 27, 2015 to the said Acharya Girish Chandra Bose College under Section 7 of the West Bengal College Service Commission Act, 2012, for the substantive post of Assistant Professor in Bengali in the PH (Physically Handicapped) Category and the vacancy with RP No.12. A request was made to issue the appointment letter within a month from receipt of the recommendation. Since nothing was done, hence the writ petition under Article 226 of the Constitution of India was taken out, seeking the reliefs mentioned in paragraph 1 above.

(3.) The matter was heard on affidavits. The principal points which were taken by all the respondents, including the West Bengal College Service Commission, were that recommendation, even after success in a selection process, did not mean that a right to appointment had accrued to the candidate, and that the recommendation was not binding on the college. A subsidiary point taken by the respondents No.4 to 6 (college authorities) was that the petitioner was not a person with a disability within the meaning of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act, 1999) (hereinafter, the said Act of 1995). The petitioner rebutted this last point by submitting that he had been treated to be a physically handicapped candidate with a disability of 80% as certified by the competent authority under the said Act of 1995 and had been given appointment on that basis at Kandi and his pay had also been fixed on that account there, and it was too late in the day to take this point and the respondent authorities were estopped from taking this point after having accepted the status of the petitioner has (as?) a person with disability under the said Act of 1995 for so long.