Smt. Anita Kesarwani vs State Of U.P. And 8 Others
2023 Latest Caselaw 14158 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 23.12.2022
 
Delivered on 05.03.2023
 
Court No. - 36
 

 
Case :- WRIT - A No. - 2029 of 2020
 

 
Petitioner :- Smt. Anita Kesarwani
 
Respondent :- State Of U.P. And 8 Others
 
Counsel for Petitioner :- Manisha Chaturvedi,Akhilesh Tripathi
 
Counsel for Respondent :- C.S.C.,Harsh Vardhan Gupta
 
With
 
Case :- WRIT - A No. - 12201 of 2022
 

 
Petitioner :- Jitendra Singh
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Gajendra Singh,Akhilesh Tripathi
 
Counsel for Respondent :- C.S.C.,Rajesh Khare
 

 
Hon'ble Ashutosh Srivastava,J. 

1. Heard Shri Akhilesh Tripathi, and Shri Gajendra Singh, learned counsel for the petitioners, learned Standing Counsel appearing for the State respondents and Shri Harsh Vardhan Gupta, learned counsel for the respondents.

2. Both the writ petition involve identical issued and are being decided together. The fact of the Writ A No. 2029 of 2020 (Smt. Anita Kesarwani vs. State of U.P. and others) are being considered for adjudicating the controversy involved.

3. Brief facts of the case are that in pursuance to the selection proceedings initiated for appointment on the post of Assistant Teacher on completion of special BTC training course, the petitioner being disabled person, was selected after examination by the Medical Board on the post of Assistant Teacher; she was granted appointment in Primary School, Chilla Shahbaji, Block Chail, District Kaushambi vide appointment letter dated 21.12.2010; and in pursuance thereof, she joined on 24.12.2010. On completion of her satisfactory service and as per the Rules applicable to the case of the petitioner, she was granted promotion on the post of Assistant Teacher, Upper Primary School on 12.2.2015 and in pursuance thereof, she joined on the post on 27.3.2015. Principal, DIET, Manjhanpur, Kaushambi issued show-cause notice to the petitioner on 27.5.2016 which was replied vide letter dated 3.6.2016 by the petitioner. The petitioner was sent before the Regional Medical Board, Allahabad on 5.8.2016 for medical examination and in pursuance thereto, medical report dated 5.10.2016 was submitted by the Chairman of the Medical Board wherein the petitioner was found to be disabled as was required for appointment on the post of Assistant Teacher.

4. Vide letter dated 24.12.2016, the petitioner was again informed to appear before the Medical Board for medical examination and in pursuance thereof, the petitioner appeared before Directorate, SCERT as well as Directorate of Basic Education, U.P., Lucknow on 17.1.2017 and submitted all her relevant documents and requested for medical check-up as per letter dated 24.12.2016. The petitioner was directed to appear before the newly constituted Medical Board at Balrampur Hospital, Lucknow between 2.8.2018 to 3.12.2018. The petitioner appeared on 18.3.2018 and was medically examined by the Medical Board at Balrampur Hospital, Lucknow. Vide letter dated 6.3.2019, Principal, D.I.E.T. again authorized one Lecturer of the said D.I.E.T. to appear along with petitioner at King George Medical University (K.G.M.U.), Lucknow on 28.3.2019 and the petitioner was again medically examined on 28.3.2019 and was examined on 2.4.2019. Report of the said medical examination was transmitted to the Principal, D.I.E.T.. Thereafter, the petitioner was also medically examined on 23.10.2016 and after examination, it was found that she is less than 40 % handicapped.

5. By means of the second show-cause notice dated 20.12.2019, the petitioner was called for explaining that she is less than 40 % handicapped and therefore, why services of the petitioner may not be dismissed. Being aggrieved with the aforesaid decisions dated 1.10.2019, 23.10.2019, 11.10.2019, 14.10.2019 as well as show-cause notice dated 20.12.2019, the petitioner has filed the present writ petition.

6. Submission of learned counsel for the petitioner is that show-cause notice is nothing but an eyewash. In fact, the decision has already been taken. He next submits that the petitioner was medically examined by the Medical Board and was found more than 40 % disabled. Copies of the reports of the Medical Board have been brought on record of the writ petition. He next submits that there is no case against the petitioner that he has played fraud in submitting the medical certificate nor there is case of the respondents that she has fabricated any document in this regard. In support of his submission, learned counsel has placed reliance upon the interim order annexed as Annexure 24 to the writ petition.

7. Learned counsel next submits that in the matter of similarly situated candidate i.e. Writ-A No.28276 of 2016 (Hema Sahu v. State of U.P. and others), this Court has passed the following order on 14.6.2016:

"...Learned Senior Counsel further submits that subsequent to the constitution of medical board of 2010, a fresh medical board was constituted in pursuant of the order of the Director, State Council for Education Research and Training,U.P. and the District Magistrate, Azamgarh in the year 2012. The petitioner was examined by the fresh medical board comprising of four doctors including the expert and in the said examination, it has been certified that petitioner is a physically disabled person and her disability is to the extent of 45%. Copy of the said report is on record as annexure 14-D to the writ petition. The said report has been signed by Chief Medical Officer, Azamgarh, Chief Medical Officer, Ghazipur, District Welfare Officer, Ghazipur, Eye Surgeon, District Hospital, Azamgarh, Eye Specialist and Orthopaedic Surgeon.

I have heard learned counsel for the petitioner and learned standing counsel.

There is no material on record to indicate that petitioner has submitted any fabricated document. As regards the report of earlier medical board which was constituted in the year 2010 as noticed above, the rejection order is skeletal and without any reason much less brief reason. The subsequent medical board has found her physically disabled to the extent of 45%.

The learned counsel for the petitioner has also placed reliance upon an interim order passed in the petition of similarly placed person being Writ -A No. 27603 of 2016, Upendra Kumar Singhal Vs. State of U.P. and others.

Be that as it may, the petitioner has been issued a show cause notice by the impugned order. In my view, the said show cause notice has been issued in compliance of the order of Supreme Court dated 3.2.2016. Thus, the petitioner may submit her document and in case she is called upon, she may be medically examined afresh by the respondents. Till fresh decision is taken in pursuance of the show cause notice or till next date of listing whichever is earlier, the petitioner shall continue as assistant teacher and her salary shall be paid.

Learned standing counsel prays for and is granted three weeks' time to file counter affidavit.

Rejoinder affidavit may be filed within one week thereafter.

List this case on 19.7.2016."

8. Counter affidavit has been filed by the Secretary, Basic Shiksha Parishad, Allahabad and District Basic Shikha Adhikari, Kaushambi, respondent nos. 8 & 9, respectively, rebutting the allegations of the Writ petition in Para 3 (b) of the Counter Affidavit it has been stated that the State Government issued Government Order dated 03.11.2009 requiring the Director General, Medical & Health to constitute Medical Board for identification of physically handicapped certificates of candidates selected in Special BTC training. The said Government Order was challenged before the Writ Court and finally the Apex Court in Civil Appeal No. 7581 of 2016 (State of U.P. Vs. Ravindra Kumar Sharma & Ors.) decided on 03.02.2016 upheld the Government Order and directed the State authorities to proceed with the medical examination and take appropriate action in accordance with law. The Relevant paragraph nos. 10 to 12 of the said judgment is quoted below:

"10. The Division Bench of the High Court has ignored and overlooked the material fact that verification has already been done by the Medical Board and it has been found that certificates of 21% were fraudulently obtained. The High Court has issued a direction in the impugned order for physical verification of the candidate by the authorities and in case he does not suffer from disability so certified candidate can be subjected to fresh medical test. The High Court has overlooked that on mere physical verification it may not be possible to know various kinds of disabilities such as that of eyes, ear impairment etc. That can only be done by the medical examination and particularly when the High Court itself has observed that in case there is genuine suspicion and fraud has been committed medical certification can be reopened. Direction issued in this regard has not been questioned by the respondents and in fact process of re-verification was already over when High Court issued aforesaid directions.

11. In our considered opinion in the peculiar facts of this case of such a fraud and genuine suspicion raised in the representation lodged by the Viklang Sangh and when 21% of such certificates have been found to be fraudulently obtained there was no scope for the Division Bench to interfere and issue order to perpetuate fraud, writ is to be declined in such a scenario and no equity can be claimed by the respondents.

12. In the circumstance we set aside the impugned judgment and order passed by the Division Bench of the High Court and dismiss the writ petition. However before taking any action against the individuals they shall be issued show cause in the matter and thereafter decision will be rendered in accordance with law. Let this exercise be completed within a period of four months. The appeal is allowed to the aforesaid extent."

9. In para 3 (c) it has been stated that in view of the judgment and order passed by Apex Court the Medical Board was constituted and the Principal DIET vide letter dated 27.05.2019 required the petitioner to appear before Medical Board. On examination, the Medical Board found the disability of the petitioner to be less than 40%. Pursuant to which the Principal DIET issued show cause notice dated 20.12.2019 requiring the petitioner to submit her explanation. Pursuant to which the Committee constituted pursuant to Government Order dated 13.05.2016, in its meeting dated 21.01.2020 took decision to terminated the services of the petitioner and to direct the Secretary Controller of Examination, U.P. Prayagraj to cancel Special BTC training Course Certificate of the petitioner. The Principal DIET communicated the decision of the Committee dated 21.01.2020 to District Basic Shiksha Adhikari, Kaushambi on 18.02.2020. The District Basic Shiksha Adhikari, Kaushambi, wrote a letter dated 19.02.2020 requiring the Block Education Officer, Chail, District-Kaushambi to provide service book and other related records of the petitioner for proceeding to terminate the services of the petitioner.

10. The petitioner has filed the rejoinder affidavit rebutting the averments made in the counter affidavit. In para 5 of the rejoinder affidavit it has been stated that pursuant to the judgment and order dated 03.02.2016, Ravindra Kumar Sharma (Supra) the disability of the petitioner was examined by the medical board on 05.10.2016 and the disability was found to be verified. However, the petitioner was subjected to subsequent medical examination to verify her disability on 18.03.2018 at Balrampur Hospital Lucknow and on 02.04.2019 at KGMU, Lucknow, and the reports were directly forwarded to District Basic Shiksha Adhikari and Principal DIET. The petitioner once again for the fourth time was put to medical examination on 23.10.2019 and the petitioner's disability was found to be less than 40% and the disability was rejected. In para 6 of the rejoinder affidavit it has been averred that the alleged decision of the Committee dated 20.01.2020 and letter dated 19.02.2020 were never served upon the petitioner.

11. In the light of the above admitted facts the counsel for the petitioner contended that the petitioner's disability was found to be correct in medical examination conducted on 05.10.2016 pursuant to the judgment and order dated 03.02.2016 passed by the Apex Court in case of Ravindra Kumar Sharma (Supra). The counsel further contended that subjecting the petitioner to multiple medical examination without any basis until her disability is rejected is ex-facie illegal. The counsel further contended that the petitioner was neither served with the order dated 20.01.2020 passed by the Committee and notice dated 19.02.2020 issued by the District Basic Education Officer, Kaushambi, to Block Development Officer, Chail, Kaushambi, to enable her to assail the same in the writ proceedings nor the same has been annexed with the counter affidavit and if any such order has been passed the same is ante dated to circumvent the interim order dated 13.02.2020 passed by this Court.

12. Heard learned counsel for the parties and perued the record.

13. This Court finds that the Apex Court in the case of Ravindra Kumar Sharma (Supra) upheld the decision to get the candidates medically examined to verify their disability to shun the entry of candidates having obtained forged certificates. However, the Apex Court held in its judgment dated 03.02.2016, that the entire exercise be completed within four months. The Apex Court stipulated the time with the intention to get the selected candidates subjected to medical examination once, which the view to get the fraudulent persons ousted from service, and to settle the lis. This Court finds that the petitioner was subjected to medical examination on 05.10.2016 pursuant to the judgment passed by the Apex Court and the disability of the petitioners was verified, however, the petitioner was again subjected to medical examination and lastly on 23.10.2019 wherein and whereunder the disability of the petitioner was rejected.

14. The counsel for the State-respondents as well as respondent no. 8 and 9, educational authorities could not come fourth with any plausible reason to support subsequent medical examination. Thus this Court is satisfied that subjecting the petitioner to subsequent medical examination to verify the disability is in teeth of the judgment and order passed by the Apex Court in Ravindra Kumar Sharma (Supra) and notices issued pursuant to the medical examination dated 23.10.2019 are illegal and are hereby quashed.

15. Both the writ petitions succeeds and are accordingly allowed.

Order Date :- 05.05.2023

Deepak