BIDYUT KAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this batch of writ petitions, the main controversy relates to the power and authority of the West Bengal Central School Service Commission and the Regional School Service Commissions constituted under the West Bengal School Service Commission Act 1997 (the '1997 Act') to have the disability status of the successful candidates who appeared in the Regional Level Selection Tests from the reserved category of disabled candidates determined by an independent Medical Board. The posts for which the selection process was being undertaken are for assistant teachers for different years. This exercise is being undertaken by the Commission without recognizing the level of disability reflected in the certificates of such candidates by the Medical Authority under the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the '1995 Act'). The candidates, who are petitioners before me had reached the counselling stage from the category of persons with disability, for whom three per cent of the total vacancies appear to have been kept reserved. The petitioners have come to this Court when they were required to undergo a verification process to ascertain the degree of their disability of their disability status itself at the time of selection, and in some cases after completion of the counselling process, as well as cases after being given appointment. These cases can be broadly divided into nine categories. In the first category, being category (A), the petitioners have come questioning the action of the authorities requiring them to report to a Medical Board prior to making recommendation for appointment in specific schools.

(2.) ALL the petitioners have raised a common question of law and resisted the direction of the Commission, questioning their authority to undergo a fresh process for assessment of their level or degree of disability. Main contention of the petitioners is that the disability certificates issued to them under the provisions of 1995 Act should prevail for determining whether a candidate is physically disabled or not, and the decision of the Commission to require them to undergo an independent test for determining the extent of their disability is without jurisdiction or power. All the petitioners claim to possess valid certificates granted in terms of the provisions of the 1995 Act, barring the case of the petitioner in W.P. No. 23665(W) of 2010, in which the term of the certificate of the petitioner does not appear to have been subsisting at the time of the 10th Regional Level Selection Test, 2009, in which the said petitioner was a candidate. The petitioner's certificate in this proceeding was issued on 14th February, 2007. In this certificate, her condition has been described as "non -progressive/likely to improve", and reassessment of the same was recommended after a period of six months. There is no material to show that such re -assessment had taken place.

(3.) THESE writ petitions have been mainly resisted by the Commission, and the learned counsels for the State have supported their stand. On behalf of the Commission, affidavitsin - opposition has been filed in two proceedings, W.P. No. 6003 (W) of 2010 and W.P. No. 21647(W) of 2009. It has, however, been submitted by the learned counsel representing them that his clients (i.e. the Commission) would adopt the affidavit filed in W.P. NO. 6003(W) of 2010 in respect of all other writ petitions as identical legal issues are involved in those proceedings. Since the main legal point involved in all these petitions is the same, in this judgment I shall avoid narrating the factual basis of the individual cases, except in W.P. No. 6003 (W) of 2010, from which it would be possible to ascertain the perspective of the subject controversy. The petitioner in this proceeding had participated in the Seventh Regional Level Selection Test, 2006 for the post of Assistant Teacher in pure science under the Regional Commission, Western Region as a candidate from the physically handicapped category. In terms of Section 33 of the 1995 Act, three per cent of the posts are required to be kept reserved for persons with physical disability. Section 33 of the said Act