SUBHADIP ROY Vs. THE STATE OF WEST BENGAL

JUDGEMENT

(1.) The present writ petition has been preferred challenging an order dtd. 13/12/2023 passed by the learned Tribunal in the original application being OA 73 of 2022 by which the cancellation of candidature of the petitioner for appointment to the post of Junior Engineer (Civil) was held to be fair and reasonable.

(2.) Shorn of unnecessary details, the facts are that the petitioner is a physically disabled person with hearing impairment of 40% disability as certified vide memo no. ENT/10 dtd. 19/1/2017 by a Medical Board at the Lalbagh Sub-Divisional Hospital. In response to an advertisement published by the Public Service Commission, West Bengal (in short, PSC) in the month of December, 2017 being advertisement No. 25/2017, the petitioner applied for participation in the recruitment process for appointment to the post of Junior Engineer (Civil). He emerged to be successful and vide memo dtd. 1/10/2019 he was recommended for appointment by the PSC. Thereafter vide memo dtd. 18/11/2019 issued by the respondent no. 3 he was requested to submit duly filled in verification roll, which he duly furnished. Thereafter by a memo dtd. 19/12/2019 issued by the respondent no. 5 he was directed to appear before the standing Central Medical Board, Medical College and Hospital on 27/12/2019. The petitioner duly appeared before the Medical Board on the said date. Upon examination he was handed over a document signed by the Board members dtd. 27/12/2019 and a document referring him to attend Dr. D Mukherjee of the ENT Department on 14/1/2020 'for verification of the degree of disability'. The petitioner duly appeared before the said doctor and he was examined but no report of such medical examination was provided to him. As the respondents thereafter the maintained a deceptive silence, the petitioner submitted two successive representations on 8/2/2021 and 12/3/2021 but in vain and as such, he submitted an application under the Right to Information Act, 2005 on 19th of June, 2021 and in response thereto, he was handed over letters dtd. 24/1/2020 issued by the respondent no. 5 and a letter dtd. 14/10/2020 issued by the respondent no. 3. In the midst thereof, the petitioner filed a writ petition being WPA 19259 of 2021 and during pendency of the same, the petitioner was served a memo dtd. 10/12/2021 issued by the respondent no. 3 enclosing a memo dtd. 1/12/2021 issued by the respondent no. 6 in which it was stated inter alia that the petitioner could not fulfil the percentage (40%) disability to avail the facilities/concession admissible to the handicapped as per Women & Child Development notification dtd. 27/9/1989 and that his candidature stands cancelled. In view thereof, the writ Court by an order dtd. 7/2/2022 dismissed the writ petitioner with liberty to the petitioner to ventilate his grievance before the jurisdictional Tribunal. Pursuant thereto the original application was filed and the same was admitted with direction upon the parties to exchange their reply and rejoinder and pursuant thereto the parties exchanged their pleadings.

(3.) Drawing our attention to the impugned order dtd. 13/12/2023 passed by the learned Tribunal, Mr. Chattopadhyay, learned advocate appearing for the petitioner submits that in the medical certificate in the form prescribed, annexed at page 63 of the writ petition it was stated that unfit on account of 'the percentage of the disability is 7 (seven) percent (not eligible to avail handicap Quota)'. However, none of the three doctors, who signed the said form was an ENT specialist and as such they referred the petitioner to Dr. Mukherjee, ENT Department for verification of the degree of the disability, as would explicit from the document annexed at page 53 of the writ petition. The petitioner duly appeared before the said ENT specialist on the specified dated but no final report was prepared and accordingly in the memo dtd. 24/1/2020, annexed at page 62 of the writ petition it was stated that 'previously this name is reported as pending vide our No. MB/10 dtd. 8/1/2020'. In the said conspectus, the learned Tribunal erred in law in refusing the petitioner's prayer treating the memo dtd. 24/1/2020 to be sacrosanct though the final medical report was still awaited.