Rahul Sahebrao Thorat vs The State Of Mah And Ors
2017 Latest Caselaw 9440 Bom

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                                  (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                     WRIT PETITION NO. 6806 OF 2008


 Rahul s/o Sahebrao Thorat,
 Age: 20 years, 
 Occu: Educated Unemployed,
 R/o Deeplakshmi Colony, Plot No.47,
 Opp. Govt. Dairy, Dhule,
 District : Dhule                      ..PETITIONER

          VERSUS

 1.       The State of Maharashtra,
          Through : The Secretary, 
          Revenue & Forest Department,
          Mantralaya, Mumbai-32.

 2.       The Chief Conservator of Forest
          (Regional), Deputy Director of
          Education, Nashik Region,
          Nashik

 3.       The Deputy Conservator of Forest,
          Yawal Forest Department,
          Yawal, Dist. Jalgaon

 4.       The President,
          Medical Board Sarvopchar Hospital,
          Dhule                            ..RESPONDENTS


 Mr Sujeet D. Joshi, Advocate for petitioner;
 Mrs M. A. Deshpande, A.G.P. for respondent/State

                               
                           CORAM : P.B. VARALE &
                                   SUNIL K. KOTWAL, JJ.

DATE : 8th DECEMBER, 2017

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ORAL JUDGMENT :

Heard Mr Joshi, learned Counsel appearing

for the petitioner.

2. The petitioner is before this Court

challenging the judgment and order dated 25th July,

2008, passed by learned Maharashtra Administrative

Tribunal Mumbai, Bench at Aurangabad, in two

original applications, namely, Original Application

No.12 of 2007 preferred by present petitioner and

other Original Application No.13 of 2007, preferred

by one Sunil Naval Mali and another Original

Application No.7 of 2007, preferred by one Shivaji

Piraji Rawate.

3. Mr Joshi, learned Counsel appearing for

the petitioner, by inviting our attention to the

material placed on record, submitted that the State

Government initiated special drive for appointment

of the physically challenged candidates, an

advertisement was issued in the newspaper dated 8 th

September, 2006, for filling up the posts of

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'Forest Guard' i.e. group 'C', from the candidates

facing physical disabilities. The requisite

criteria for selecting candidates was referred to

in the advertisement like their academic

qualification, physical measurement and

prescription of age limit. Perusal of advertisement

which is placed on record at annexure 'B' show that

there is relaxation in the age criteria for such

candidates facing physical disabilities and there

is requirement of certificate issued by the

competent authority certifying that minimum

percentage of disability should be 40%.

4. Mr Joshi, learned Counsel appearing for

the petitioner submitted that in response to the

advertisement, the petitioner submitted his

application and competed with the other candidates.

He then submitted that as per requirement, the

petitioner had undergone medical examination and

was possessing certificate issued by the competent

medical board. He further submitted that by an

order dated 25th September, 2006, the petitioner

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was appointed along with other 10 persons. The

petitioner was facing physical disability i.e.

hearing impairment and reference is made in the

appointment order.

5. Mr Joshi, learned Counsel appearing for

the petitioner then submitted that news item was

published in local newspaper on 6th November, 2006.

It was alleged that the President of Medical Board

played mischief and was subjected to certain

extraneous considerations, issued medical

certificate, certifying those candidates, who were

not falling in the category of physically disabled

persons. He then submitted that without there

being any other material, only on the basis of news

item, the respondent-authority referred certain

candidates for further medical examination. The

petitioner was one of such candidates, who was

referred to "Ali Yawar Jung National Institute for

hearing handicapped", Mumbai. The certificate was

issued by the said Institute and the Institute on

the medical examination of the petitioner,

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certified that the petitioner was having 'Bilateral

moderately severe sensorineural hearing loss'.

6. Mr Joshi, learned Counsel then submitted

that, by order dated 14th November, 2006, selection

of the petitioner was cancelled. He then submitted

that being aggrieved by the said

order/communication, the petitioner approached

Administrative Tribunal along with other

applicants. He then submitted that the Tribunal

erred in dismissing the application. He then

submitted that petitioner though was referred to

institute, namely, "Ali Yawar Jung National

Institute for hearing handicapped", Mumbai, the

communication dated 14th November, 2006, nowhere

states that the petitioner's selection is cancelled

in view of certificate issued by "Ali Yawar Jung

National Institute for hearing handicapped",

Mumbai. He submits that on the contrary, the

communication states that the petitioner is

disqualified on account of medical certificate

dated 27th October, 2006. Other submission of Mr

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Joshi, learned Counsel was, respondent-authorities

while referring the petitioner to "Ali Yawar Jung

National Institute for hearing handicapped",

Mumbai, ought to have informed the institute the

nature of duties, supposed to be conducted by

'Forest Guard'. Without there being such material,

certificate issued by the said institute may be

inconsequential. Mr Joshi, learned Counsel on

these submissions, prays for quashing and setting

aside the order passed by the Tribunal and allowing

the petition.

7. Mrs. Deshpande, learned A.G.P. appearing

for the respondent Nos.1 to 3 vehemently opposed

the petition. Learned A.G.P. submits that no error

is committed by the Tribunal. Learned A.G.P. then

submitted that all necessary precautions were taken

by the respondent-authorities while referring the

petitioner to the Institute, which is a reputed

institute known nationwide and an independent

institution. She then submitted that as per

record, even the material in so far as the duties

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of Forest Guard is concerned, was forwarded to the

medical board. She submits that considering the

relevant material, Tribunal found no favour with

the applicants and accordingly applications were

dismissed.

8. On the backdrop of submissions of learned

Counsel for the petitioner as well as learned

A.G.P., we have gone through the material placed

before us. In so far as facts of issuance of

advertisement and selection of the petitioner are

not in dispute, as well, the fact that there was

news item published is also not disputed. The

petitioner was unable to submit before us that

there is any prohibition for the Government to seek

a report from an independent institute for

assessing physical ability or disability of a

person. The Government in its wisdom, can

undertake such exercise until it is not prohibited.

In so far as the certificate issued by the

institute, which is nationally reputed is

concerned, the aspect is clearly dealt with by the

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Tribunal. The Tribunal also dealt with submission

that along with reference of the candidates to the

Board, no material form or duties of Forest Guard

was provided. On the contrary, the Tribunal found

that when the medical board was informed to carry

out examination, it was supported with the material

of duties and responsibilities of the Forest Guard,

the Tribunal, in clear and unambiguous words,

states that there appears no room to raise any

doubt over the certificate.

9. Though Mr Joshi, learned Counsel for

petitioner made attempt to urge before us that

there is no reference to the certificate issued by

the Ali Yawar Jung Institute, in communication

dated 14th November, 2006, as such, the said

communication is unsustainable. We are unable to

accept the submission for the reason that

communication may not be very happily worded but

clearly spells out intention and it is stated that

the petitioner was medically found unfit in medical

examination, as stated by us that it is not in

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dispute that the petitioner was subjected to

medical examination through the independent

institute like Ali Yawar Jung Institute. The

Tribunal then observed that if the Apex expert

body, on medical examination of a candidate finds

candidate unfit and declares candidate unfit, the

Tribunal cannot sit over the conclusion arrived at

by the expert body. The Tribunal was certainly

justified in observing that, it is expert body in

the field of medical fitness and certify about

fitness of a candidate, neither Tribunal nor this

Court possess expertise in that field so as to sit

over as appellate forum on the certificate issued

by the competent medical authority.

10. Considering all these aspects, we are of

the opinion, that the Tribunal committed no error.

The conclusions arrived at by the Tribunal are on

just and proper appreciation of material. We are

of the opinion that, no interference is called for

in the judgment and order passed by the Tribunal.

Writ Petition, thus, being merit less, deserves to

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be dismissed and same is accordingly dismissed.

Rule discharged.

(SUNIL K. KOTWAL, J.) (P.B. VARALE, J.)

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