The State Of Maharashtra vs Dr.Kishor Shrimant Ubale
2022 Latest Caselaw 10113 Bom

                                          1                wp10149.22 Judgment.docx



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                             WRIT PETITION NO. 10149 OF 2022


         The State of Maharashtra
         Through the Special State
         Tax Commissioner Office
         3rd Floor, H-Wing, GST Bhavan
         Mazgaon Mumbai 400 010.                                ...PETITIONER


                     VERSUS

1.       Dr.Kishor Shrimant Ubale,
         Age; 33 years, Occ; Doctor,
         R/o; Opp. To Old Shivaji Vidyalaya,
         Shivaji Nagar Beed.
         Tq. & Dist. Beed.

2.       The Maharashtra Public Service
         Commissioner,
         Through its Chairman
         Having its office at 5th , 6th and
         8th Floor, Cooprej Telephone Nigam
         Building,
         Maharashi Karve Road, Kuprej,
         Mumbai 400 021.

3.       Sir. J.J. Group of Hospital Byculla,
         Through its Chairman
         J.J. Marg, Nagpada Mumbai Central
         Offi Jijabhoy Road, Mumbai 400008.                   ...RESPONDENTS



                           ....................................
             AGP for the petitioner-State s : Mrs. M.A. Deshpande
           Advocate for Respondent No. 1 : Mr. Avinash S. Deshmukh
                           ....................................


                                     CORAM : MANGESH S. PATIL &
                                             SANDEEP V. MARNE, JJ.

                                     2                  wp10149.22 Judgment.docx



                                        DATE : 03.10.2022


JUDGMENT : [PER : SANDEEP V. MARNE, J.]

1. Rule. Made returnable forthwith. With the consent of the

learned Advocates for the respective parties, heard finally at the stage

of admission.

2. The State Government has filed the present petition

assailing the judgment and order dated 12.04.2022 passed by the

Maharashtra Administrative Tribunal, Bench at Aurangabad, allowing

the Original Application No. 339 of 2019 filed by respondent No. 1. The

Original Application was filed by respondent No. 1 challenging the letter

dated 27.04.2018, declaring him ineligible for appointment on the post

of Sales Tax Inspector, on the ground that his disability was certified to

be 30% in the examination conducted by the Medical Board, as against

the minimum requirement of 40% disability.

3. The facts of the case are in narrow compass. Maharashtra

Public Service Commission (for short 'MPSC') published advertisement

No. 47 of 2016 on 22.01.2016 for the post of Sales Tax Inspector.

Respondent No. 1 was in possession of disability certificate dated

11.07.2006 issued by the District Civil Surgeon (Civil Hospital,

Aurangabad) and disability certificate dated 08.11.2008 issued by the

Medical Board, Medical College and Hospital, Aurangabad, both

certifying 40% vision disability. He applied against post reserved for

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disabled quota. He was declared successful in the preliminary

examination, as also in the main examination. Upon being selected,

his name was included in the select list by letter dated 09.02.2017.

Respondent No. 1, along with six other candidates were directed to

approach the Dean, Government Medical College, Ambejogai for

medical examination to certify whether they were fit to render duties of

the post. However Respondent No. 1 was again directed by letter dated

10.01.2018 to approach the Medical Board of referral at J.J. Hospital,

Mumbai for the verification of his medical certificate. The petitioner

accordingly appeared before the Medical Board which certified him to

possess disability certificate to the extent of 30%. It is undisputed that

the minimum percentage of disability required for the reservation in

P.H. category is 40%. Therefore, by the communication dated

27.04.2018, the Joint Commissioner of Sales Tax, Mumbai informed

respondent No. 1 that he was found ineligible for being appointed on

the post of Sales Tax Inspector. This communication dated 27.04.2018

was challenged by respondent No. 3 in his Original Application No. 339

of 2019. By the order impugned before us, the Tribunal proceeded to

allow the Original Application setting aside the communication dated

27.04.2018 and directing the petitioners to consider Respondent No. 1

for appointment as per the recommendations of MPSC within eight

weeks. The Tribunal however, directed that it would be open to the

petitioners to refer him for medical examination only for deciding his

disability to work on the post of appointment but not for verification of

his disability certificate.

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4. Appearing for petitioners-State Mrs. M.A.Deshpande, the

learned Additional Government Pleader would submit that the

complaint was received about the genuineness of disability certificate

produced by respondent No. 3 and therefore the petitioners had

referred him for medical examination before the Medical Referral

Board. She would submit that the petitioners were entitled to do so.

She would further submit that respondent No. 1 appeared before the

Medical Board without any demur and therefore is estopped from

challenging its decision. Having certified to possess only 30% disability

by the medical board, respondent No. 1 is clearly ineligible to be

appointed in PH Quota. She prays for setting aside the order passed by

the Tribunal.

5. Per contra, Mr. Deshmukh, learned counsel appearing for

respondent No. 1 would support the order passed by the Tribunal based

on the findings recorded by it.

6. We have gone through the order passed by the Tribunal and

have also perused the documents placed along with the petition. The

Tribunal has inter-alia relied upon Government circular dated

14.01.2011, which is quoted in the order of the Tribunal, directing that

once disability certificate is issued by the Competent Authority, the

appointing authority should not question the certificate of the disability

of the candidate.

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7. Mrs. Deshpande, the learned AGP has not been able to

produce before us any Rule or administrative instruction which

empowered the petitioners to direct the remedical examination of

respondent No. 1 despite the production of disability certificate by him.

Her contention that there was complaint about the genuineness of the

disability certificate and that therefore, the petitioners were entitled to

verify the same, does not cut any ice as the complaint was about the

genuineness of the certificate. The petitioners therefore were required

to send the certificate for verification to the authority which had issued

it only to verify whether it has issued or not. Mere receiving of

complaint about the genuineness of disability certificate would not

entitle them to subject the respondent No. 1 for fresh medical

examination. We find that respondent No. 3 had produced two

disability certificates. The Certificate date 11.07.2006 was issued by

the District Ophthalmic Surgeon, (Civil Hospital, Aurangabad) and

second disability certificate dated 08.11.2008 has been issued by the

Medical Board, Medical College and Hospital, Aurangabad.

8. The percentage of disability can be arrived at on the basis

of subjective opinion of doctors. Percentage of disability is likely to

differ in different medical examinations conducted by the different

doctors. It is not that respondent No. 3 does not suffer from any

disability. Even in the examination conducted by the Medical Referral

Board he is found to possess vision disability. However, the only

difference of opinion is about the percentage of disability. We have

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already come to the conclusion that the petitioners were not entitled to

subject respondent No. 3 for re-medical examination. Even in such re-

examination by the Medical Board, disability of respondent No. 1 is

certified, albeit with lesser percentage. In such circumstances, rejection

of candidature of respondent No. 1 relying upon the opinion of Medical

Board appears to be erroneous. The Tribunal has rightly set aside the

impugned communication dated 27.04.2018. We do not find any

jurisdictional error being committed by the Tribunal while passing the

impugned order.

9. The petition is devoid of any merits, the same is dismissed

without any order as to the costs. Rule is discharged.

     ( SANDEEP V. MARNE )                    ( MANGESH S. PATIL )
          JUDGE                                   JUDGE




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