Dr. Arun Sarkar vs The State Of West Bengal & Ors
2022 Latest Caselaw 5140 Cal

                  IN THE HIGH COURT AT CALCUTTA
                   Constitutional Writ Jurisdiction
                           Appellate Side

Present :-
The Hon'ble Justice Moushumi Bhattacharya.


                           WPA 6043 of 2022
                                With
                           IA No. CAN 1/2020
                        (Old No. CAN 4253/2020)

                            Dr. Arun Sarkar
                                  Vs.
                     The State of West Bengal & Ors.


For the petitioner                          :   Mr. Subir Sanyal, Adv.
                                                Mr. Sagnik Roy Chowdhury, Adv.
                                                Mr. Aranya Basu, Adv.
                                                Mr. Ratul Biswas, Adv.


For the College                             :   Mr. Anindya Bose, Adv.
                                                Mr. C. Chatterjee, Adv.
                                                Mr. Diptendu Mondal, Adv.
                                                Mr. Nikhil Gupta, Adv.


For the WBCSC                           :       Mr. Pulak Ranjan Mondal, Adv.
                                                Mr. Subhrangsu Panda, Adv.
                                                Mrs. Bandana Mondal, Adv.


Last Heard on                           :       05.07.2022.


Delivered on                            :       08.08.2022.
                                     2



Moushumi Bhattacharya, J.

1. The petitioner served as Assistant Professor in Bengali in Kandi

Raj College in Murshidabad for seven years from April, 2010 until April,

2017 before the petitioner was recommended by the West Bengal College

Service Commission for appointment as Assistant Professor in Acharya

Girish Chandra Bose College (formerly Bangabasi College of Commerce),

Kolkata, in the "PH" (Physically Handicapped) category. The petitioner is

a physically impaired person (Bi-lateral upper limb amputee) with 80%

disability.

2. The petitioner seeks a direction on the Governing Body, the

President and the Principal of Acharya Girish Chandra Bose College to

confirm and approve his appointment in the post of Assistant Professor

in Bengali of the said College. The petitioner also seeks quashing of the

decision of the Governing Body of the College taken in the meeting held

on 10th June, 2017.

The case of the petitioner

3. The case of the petitioner, as sought to be made out by Mr. Subir

Sanyal, learned senior counsel, is that the petitioner lived in Naihati,

North 24 Parganas and was constrained to apply for a new position since

the petitioner found it difficult to attend Kandi Raj College, Murshidabad

which was at a distance of 480 kilometers, both ways, from Naihati. The

petitioner was selected and recommended to Acharya Girish Chandra

Bose College by the College Service Commission by a letter dated 27th

April, 2017 for the post of Assistant Professor in Bengali in the PH

(Physically Handicapped) category. The petitioner is seriously aggrieved

by the resolution of the Governing Body taken on 10th June, 2017 by

which the College Service Commission was requested to reconsider the

recommendation of the petitioner for the reasons stated in the impugned

decision. The petitioner was thereafter given provisional appointment as

Assistant Professor in Bengali in the said College by a letter dated 30th

August, 2017 issued by the Principal and Secretary of the Governing

Body. The provisional appointment was on a particular scale of pay and

the petitioner was informed that the petitioner would be on probation for

one year from the date on which the petitioner joined the post. Counsel

submits that the petitioner thereafter joined the post and successfully

performed his duties as Assistant Professor in the same manner as the

petitioner had done in Kandi Raj College, Murshidabad.

4. The petitioner in the meantime filed a writ petition being W.P. No.

29975 (W) of 2017 in this Court which was dismissed by a judgment of a

learned Single Judge, as His Lordship then was, on 22nd June, 2020.

While dismissing the writ petition for want of requisite pleading, the

petitioner was given liberty to challenge the decision of the Governing

Body dated 10th June, 2017. The present writ petition was filed

pursuant to the said order.

5. Counsel submits that the petitioner comes within the definitions

of The Right of Persons with Disabilities Act, 2016 as a person having

permanent locomotor disability of 80%. Counsel further submits that

the petitioner was appointed to the post in question against a vacancy

reserved for the physically handicapped hence the petitioner has a right

to be appointed to the said identified reserved post. Counsel places

reliance on the 2016 Act which was enacted in place of the earlier

Persons with Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act, 1995. Counsel submits that the impugned

decision of the Governing Body culminated in the refusal of the College

to issue the letter of appointment to the petitioner to the substantive

post and is arbitrary, discriminatory and in violation of the 2016 Act.

The response of the College

6. Mr. Partha Sarathi Bhattacharyya, learned senior counsel

appearing on behalf of the College, submits that the issue in the present

writ petition has already been decided by the judgment of the learned

Single Judge delivered on 22nd June, 2020 and is therefore barred by the

principles of Res judicata. Counsel submits that a mere

recommendation for appointment to the concerned post does not confer

any right on the petitioner to being appointed to such post. It is also

submitted that the recommendation of the College Service Commission

is not binding upon the College. Counsel further submits that since

advertisement for the post was published by the College Service

Commission on 30th June, 2015, the facts would be governed by the

1995 Act as the 2016 Act came into force only on 19th April, 2017.

The Court's view on;

I. Res Judicata

7. According to counsel appearing for the respondent College, the

present issue has been decided by a learned Single Judge, as his

lordship then was, by the judgment delivered on 22.06.2020 in W.P. No.

29975(w) of 2017. The writ petitioner had approached the Court with the

plea that as a person with disability, the petitioner should be appointed

to the post of Assistant Professor of Bengali in the concerned College.

The Court however found that the writ petition did not contain any

evidence of the College authorities refusing to appoint the writ petitioner.

The Court was accordingly of the view that the prayer of appointment

could not be granted. The writ petitioner was however given the liberty to

challenge the decision of the Governing Body dated 10.06.2017 which

was disclosed by the College in its affidavit-in-opposition in the earlier

proceeding. The Court held that the petitioner does not have a right to be

appointed on the recommendation made by the College Service

Commission: ref. Balakrushna Behera vs. Satya Prakash Dash; (2008) 1

SCC 318. The Court also held that the recommendation of the petitioner

by the College Service Commission for being appointed as an Assistant

Professor of Bengali in the concerned College did not confer any right on

the petitioner to seek appointment from the College.

8. Upon considering the judgment passed by the learned Judge, it

appears that the issue with regard to the petitioner not being entitled to

claiming a right to be appointed to the post against the particular

vacancy was decided by the Court as was the issue of the College not

being under any obligation to act upon the recommendation of the

College Service Commission. Although the petitioner has come with a

new writ petition, the principle of res judicata would apply to these two

issues. This Court is therefore not inclined to adjudicate on these issues

in the present proceeding.

9. The newness, (the term has recently been added to the

Cambridge Dictionary), is the decision of the Governing Body of the

College taken in its meeting on 10th June, 2017 which is impugned in

the present writ petition and was not challenged in the earlier

proceeding. The adjudication will then be confined to the legality of this

decision under the relevant statutes and the rights guaranteed to the

petitioner under the Constitution of India.

II. The petitioner is a Person with Disability

10. The undisputed fact is that the petitioner, while working as an

Assistant Teacher in a High School met with a train accident and had to

undergo bilateral amputation of both his hands. The petitioner claims

80% disability as a result of the amputation of his upper limbs. The

petitioner was accommodated in the physically handicapped category of

Assistant Teachers through the West Bengal School Service Commission

and was thereafter selected as a physically handicapped category

candidate by the College Service Commission and joined the Kandi Raj

College, Murshidabad. The petitioner sought appointment in a college

nearer to his residence since the petitioner found it difficult to travel 480

kms on a daily basis from his house in Naihati to Kandi Raj College. The

petitioner applied for the substantive post of Assistant Professor of

Bengali in the PH category against the vacancy with RP No. 12.

III. Seamless transition from the 1995 to the 2016 Act

11. The first issue which must be decided is whether the case of the

petitioner would be governed under the Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995 or

The Rights of Persons with Disabilities Act, 2016. The College takes a

stand that the 1995 Act would apply since the advertisement for the

substantive post was published by the College Service Commission on

30th June, 2015 when the earlier Act was in existence. The 2016 Act

came into effect on 19th April, 2017. The Court in the earlier proceeding

had decided against the College authorities on this issue being of the

view that the petitioner can be categorized as a person with disability

even under the provisions of the 1995 Act. Notwithstanding the view

taken, section 102(2) of the 2016 Act provides for a saving clause with

reference to anything done or any action taken under the 1995 Act as

deemed to have been done or taken under the corresponding provisions

of the 2016 Act.

12. Hence, even if the advertisement was published by the

Commission on 30th June, 2015 before the 2016 Act came into force, the

action of the Commission and the College taken on the basis of such

advertisement would continue under the provisions of the 2016 Act. It

must also be borne in mind that The Rights of Persons with Disabilities

Act, 2016 was enacted to give effect to the United Nations Convention on

the Rights of Persons with Disabilities. The United Nations General

Assembly adopted its Convention on the Rights of Persons with

Disabilities on 13th December, 2006 and laid down certain principles for

empowerment of persons with disabilities including respect for inherent

dignity, individual autonomy and the freedom to make one's own choices.

The Convention also placed emphasis on non-discrimination and full

and effective participation of such persons. The Statement of Objects

and Reasons of the 2016 Act specifically states that after the enactment

of the 1995 Act, the conceptual understanding of the rights of persons

with disabilities has become clearer over a period of time and that there

has been a world-wide change in approach to issues concerning persons

with disabilities. The Statement also refers to the Report of the Expert

Committee constituted in 2010 and the suggestions of a Draft Bill

relating to Rights of Persons with Disabilities. The objects of the 2016

Act make it evident that 2016 Act is a piece of beneficial legislation for

preserving the rights of persons with disabilities and empowering them

with equal opportunities. If this be the case, attempting to slot the

petitioner into one legislation to the exclusion of the other would be an

unnaturally restrictive vision of the bridge between the two Acts and

their commitment to inclusivity.

IV. Disability

a) Under the 1995 Act

13. Even if the interpretation is narrowed down to fit in the factual

specifics of the present case, the petitioner would still be categorized as a

person with disability under the 1995 Act. Under section 2(i) of the 1995

Act, 'disability' is defined as i) blindness; ii) low vision; iii) leprosy - cured;

iv) hearing impairment; v) locomotor disability; vi) mental retardation

and vii) mental illness. The definition suggests that a person is born with

these disabilities. The definition section omits persons who have become

disabled at a subsequent period of time or as a result of an

event/accident. The petitioner falls into this class of persons since the

petitioner underwent amputation of both his hands after the accident.

Section 2(o) of the 1995 Act defines 'locomotor disability' as:

"2...........

(o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy."

b) Under the 2016 Act

14. The 2016 Act on the other hand defines a 'person with disability'

as :

"2........

(s) "person with disability" means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;"

The definition is an inclusive definition which takes within its fold

evolving forms of disability and the facilitators for full participation in

and integration in society. There is no indication of the disability being a

condition from birth.

15. Moreover, in any logical view of a legislation which is intended to

benefit persons with disability, a definition of disability cannot be frozen

with the repealing of the 1995 Act. The whole object of the later

legislation, i.e. 2016 Act, was to include broad spectrum disabilities

which were not within the recognition of the framers of the earlier

statute and to empower persons with disabilities to effectively integrate

with society. For instance, locomotor disability under the Schedule to

the 2016 Act and within the framework of 'specified disability' is a much

more inclusive definition. A locomotor disability now encompasses the

following:

"A person's inability to execute distinctive activities associated with movement of self and objects resulting from affliction of musculoskeletal or nervous system or both,

....................."

including five sub-clauses of loss of sensation in limbs and manifest

deformity, cerebral palsy, dwarfism, muscular dystrophy and acid

attack victims."

16. In any event, the cause-effect factor cannot be discounted to limit

spectrum disabilities just because the petitioner did not have 80%

disability from birth.

17. Section 2(s) of the 2016 Act read with Section2(o) of the 1995 Act

hence explains the definition of disability to include substantial

restriction of the movement of the limbs and does not exclude any such

condition which may occur at a later stage in life by reason of an

accident or otherwise.

V. The decision under challenge

18. The issue under consideration is whether the impugned decision

of the Governing Body of the College acts as a step backwards on the

path which the 1995 and the 2016 enactments sought to pave for

persons with disabilities.

19. An extract of the impugned decision of the Governing Body of the

College dated 10th June, 2017 is set out:

"The Principal reported that the name of Dr. Arun Sarkar, Asst. Professor in Bengali of Kandi Raj College, Murshidabad has been recommended by the West Bengal College Service Commission vide its letter No. 1293 /Beng/CU/Recom/CSC/17 dt. 27-04-2017 for appointment to the post of Assistant Professor in Bengali as per our requisition submitted to the West Bengal College Service Commission [vide letter No. AGCBC/Secty.-WBCSC/Requisition/01/15 dated 22-07-2015 (Sl. No. 2)] against the Post Creation GO No. 597-Edn (CS) dt. 12-09-2008[1(i)] with RP No. 12 (UR : Reserve for PH Candidate) for the Teaching Staff.

In this context the following discussion were held in the Governing Body Meeting : The West Bengal College Service Commission (WBCSC) be requested to please reconsider their recommendation because the Physically Handicapped (PH) Candidate (Dr. Arun Sarkar) is 80% disabled (without having both hands) and cannot fulfil duties related to

teaching, evaluating etc. of the College as well as for University assignments. Since the department is a young one, appointment of such a candidate might seriously be detrimental to the development of the department and the reputation of the College. It would also be an injustice for the Students in future. Such recommendation be replaced by another candidate of same category for appointment of Asst. Professor in Bengali in our College.

After discussion, resolved unanimously that the Principal & Secretary of the Governing Body be directed not to issue the appointment letter in favour of Dr. Arun Sarkar against the recommendation letter No. 1293 / Beng/CU/Recom/CSC/17 dt. 27-04-2017 until the response received from the West Bengal College Service Commission (WBCSC). The Principal be further directed to write the Chairman & Secretary of the WBCSC requesting them for replacement of such recommendation by another one with same category."

V-A. The decision is summed up as follows:

(i) The petitioner is a physically handicapped candidate and is 80% disabled.

(ii) The petitioner cannot fulfill his duties related to teaching, evaluating and University assignments.

(iii) The appointment of a candidate with 80% disability will seriously prejudice the department and the reputation of the College.

(iv) Since the department is a young department, appointment of the petitioner may be detrimental to the department and would cause injustice to the students.

(v) The recommendation of the petitioner should be replaced by another candidate of the same category.

V-B. The assumptions of the Governing Body may hence be

enumerated as:

(i) A person with 80% disability cannot teach, evaluate answer scripts or perform other assignments related to teaching.

(ii) A 'young' department would require a person who is either not disabled or does not suffer from 80% disability.

(iii) Appointment of a person with 80% disability would be detrimental to the development of a young department as well as to the reputation of the College.

(iv) The students of such a department would suffer if they are taught by a person with 80% disability.

(v) Appointment of such a person would cause injustice to the students.

VI. The impugned decision falls foul of the statutory mandate on all counts

20. The impugned decision which is under challenge is a reflection

of the mindset and attitudes which the 1995 and the 2016 Act aimed to

liberalise and rectify. Chapter-II of the 2016 Act relates to "Rights and

Entitlements". Section 3(1) ensures to persons with disabilities the right

to equality, a life with dignity and respect for his/her integrity. Section

3(1) also envisages the right to equal treatment of persons with

disabilities on the same level as others in the relevant group. The

entitlement to be equally treated is also found in section 3(3) which casts

an obligation on the "other" not to discriminate against a person with

disability on the ground of disability unless it is shown that the

impugned act or omission is a proportionate means of achieving a

legitimate aim. Section 3(2) and (5) requires the appropriate Government

to takes steps to utilize the capacity of persons with disabilities by

providing a conducive environment and ensuring reasonable

accommodation.

21. Chapter-III of the 2016 Act focuses on "Education" and sections

16 and 17 thereunder mandates an inclusive system of education for

children with disabilities who shall be admitted to educational

institutions without discrimination and be provided with equal

opportunities as those of other children. Section 17(c) provides for

training and employing teachers, including teachers with disability who

are qualified in sign language and braille and teachers who are trained

in teaching children with intellectual disability. Section 20(1) prohibits a

Government establishment from discriminating against any person with

disability in any matter relating to employment. Section 20(4)

specifically prohibits a Government establishment from dispensing with

or reducing the rank of an employee who acquires a disability during

his/her service. Chapter-VI relates to Special Provisions for Persons with

Benchmark Disabilities including reservation in higher educational

institutions and in Government establishments (Sections 32, 34).

VII. "Dis" → "Ability"; the 2016 Act is an enabler for Persons with

Disability

22. The 2016 Act is in the nature of a manifesto for ensuring the

following rights to persons with disabilities :

 Equal treatment;

        Non-discrimination;

        Equal opportunity;

        Protection from cruelty and inhuman treatment;

        Protection from abuse and exploitation;

        Equal protection and safety in situations of risk, armed conflict,

humanitarian emergencies and natural disasters;

 Integration with family including social integration in the larger

context;

        Access to justice and electoral processes;

        Social security and adequate standard of living;

        Healthcare;

        Rehabilitation.

23. The affirmative action built into the 2016 Act is manifested in the

free education for children with benchmark disabilities, reservation and

incentives to the private sector for ensuring representation of a certain

percentage of persons with benchmark disabilities. The objective of the

Act is full participation of persons with disabilities and empowering

them to realize their full potential. Section 2(c) defines "barrier" as any

factor including communicational, cultural, economic and

environmental impeding the full participation of persons with disability

in society. The goal is hence to remove barriers in all forms which would

frustrate the object of the Act.

24. The decision of the Governing Body, in essence reveals a set of

prejudices which squarely fits into the definition of a "barrier" under the

2016 Act.

VIII. "Reasonable Accommodation"

25. The principle of "reasonable accommodation" in section 2(y) of

the 2016 Act points to appropriate modifications and adjustments to

ensure to persons with disability the enjoyment of rights equally with

others. This expression received an educative interpretation in Vikash

Kumar vs. Union Public Service Commission; (2021) 5 SCC 370. Justice

D.Y. Chandrachud, speaking for the Bench, explained the concept of

"reasonable accommodation" as capturing the positive obligation of the

State and private parties to provide additional support to persons with

disabilities to ensure their effective participation in society. The

expression was interpreted as intrinsic to recognizing the worth of every

person as an equal member of society and upholding individual dignity.

In the understanding of this Court, "reasonable accommodation" is that

extra effort which is part of the duty cast upon Government Bodies and

private entities to create an environment which is conducive to

mitigating the effect of disability in the overall mainstreaming of persons

from the community. Apart from the effect of creating a physical

environment of equality, "reasonable accommodation" entails fostering

of a set of attitudes with reference not only to the person in the centre of

the effort but also the persons surrounding the beneficiary. In other

words, the mindset of inclusion should permeate through the layers of

interactions with the beneficiary at the same time. By cutting a clear

wedge between the petitioner and the students of the College in terms of

the future prospects of the latter, the Governing Body has in effect

separated the petitioner and the group which would have facilitated the

objective of the Act.

IX. The exceptions to the mandate of inclusivity

26. The Rights of Persons with Disabilities Act, 2016 contains a

moderation on the discrimination against persons with disability in

Section 3(3) of the Act in the following form.

3(3). "No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim."

27. The Government is hence given a limited leeway to make a choice

in the matter of employment and selection where it can show that

excluding a person with disability fits in with a stated objective. The

onus of establishing the objective and justifying the exclusion is on the

Act. A similar tenor can also be found in the proviso under Section 20(1)

− Non-discrimination in employment. The proviso gives a window to an

establishment to be exempted from the non-discrimination mandate in

matters of employment with reference to the type of work carried on by

the Government establishment.

IX-A. Does the impugned decision of the Governing Body align with the exceptions as pointed out above?

28. The justification is that the department is a 'young' one and that

the appointment of the petitioner would be prejudicial to the

development of such a department. The Governing Body also concludes

that the appointment of the petitioner would affect the reputation of the

College and do injustice to the future prospects of the students. The

impugned decision does not discharge the onus of proving how the

exclusion of the petitioner would aid in achieving the aim, legitimate or

otherwise, of the College [section 3(3)] or how the petitioner will not be

suitable for the work of the College (section 20, proviso). Moreover, the

order does not clarify on the specific needs of the department calling for

an Assistant Professor of only a particular profile to the exclusion of

others.

29. The vagueness of the order becomes even more stark when seen

against the back-story of the admitted facts. The petitioner met with the

train accident in 1997 and worked as an Assistant Teacher under the PH

category in Garifa High School from 1999 onwards. The petitioner joined

the Kandi Raj College as an Assistant Professor in Bengali in April, 2010

upon being recommended in the PH category. There is no evidence of the

petitioner being unable to fulfill his duties as a Teacher/Assistant

Professor as a result of disability forced upon him. The impugned

decision also does not refer to any complaint received from the students

of the College where the petitioner joined in April, 2017. It is also

undisputed that the petitioner performed his duties from 1997 till June,

2017 with the use of artificial limbs. Besides, it is difficult to accept that

the duties mentioned in the impugned order namely, teaching,

evaluating answer-scripts and other University assignments are beyond

the capabilities of a person with disability.

30. The scope of work referred to in the order is ambiguous and does

not discharge the onus put on an employer in excusing itself from the

mandate of the 2016 Act. In Syed Bashir-Ud-Din Qadri vs. Nazir Ahmed

Shah; (2010) 3 SCC 603, the Supreme Court dealt with the appointment

of the appellant before it on the ground that the appellant was suffering

from cerebral palsy and was not fit to work as a Rehbar-a-Taleem

(Teaching Guide). The Supreme Court noted with empathy that the

movement of a person suffering from cerebral palsy would be jerky on

account of locomotor disability and that his speech would also be

somewhat impaired. The Court proceeded to hold that the appellant's

services as a teaching guide could not be discontinued as long as the

impairment did not interfere with the appellant efficiently discharging

his duties.

IX-B. The impugned decision is a reflection of a mindset - barrier

31. The impugned decision is opaque, reflects an intransigent

mindset and a systemic obstacle to the personal and intellectual growth

of persons with disability. The decision is regressive and chains the

freedoms and opportunities of the community.

32. The 2016 Act is a declaration of rights and opportunities to

persons with disability. While the idea of freedom from the physical

limitations germinated in the 1995 Act, in 2016 the focus shifts from

protection of persons with disability to empowerment; recognition of

limitations to removing barriers; the right to participation to affirmative

action. In essence, the statute facilitates the movement of the

community from the margins to the mainstream of opportunities. The

canvas is more about effective integration of persons with disability and

less about recognition of a physical condition as a limiting factor.

Highlighting the difference has made way to obliterating unequal

opportunities as a result of the difference.

X. Is the impugned decision amenable to judicial scrutiny?

33. The respondent College objects to any relief being granted on the

limited scope of judicial review against an administrative decision. In

Dwarka Nath vs. Income Tax Officer; AIR 1966 SC 81, Justice K. Subba

Rao, speaking for the Bench, referred to the principles succinctly stated

in Halsbury's Law of England, 3rd Edn., Vol 11 as an administrative body

being under a duty to act judicially in ascertaining the facts of law

notwithstanding that its proceedings have none of the formalities of a

court of law. The Supreme Court also noted that even where a decision of

an administrative body is actuated in whole or in part by questions of

policy, it may be under a duty to act judicially in the course of arriving at

a decision. Relying on the aforesaid decision, this Court is of the view

that the acts impugned may take on the character of quasi-judicial acts

where the administrative body has a duty to act judicially.

34. In the present case, the Governing Body of the College had a duty

to consider the import of the provisions of the 1995 Act and the 2016 Act.

Both these Acts imposed a duty on the Governing Body to act in terms of

the mandate of the law which the Governing Body failed to do. In East

Coast Railway vs. Mahadev Appa Rao; (2010) 7 SCC 678, the Supreme

Court held that application of mind is a threshold requirement for

making a valid order. It was further held that the authority making the

order must be alive to the materials placed before it and cannot act

under an impulse. This decision fits the fact scenario before this Court

since there is no evidence of the presence of any material before the

Governing Body justifying the comments on the petitioner's abilities to

perform his duties.

35. There cannot be any denial of the fact that the Governing Body of

the College had a duty to act responsibly with sensitivity, having regard

to the statutory position governing persons with disabilities. It is all the

more surprising that the Governing Body directed the Chairman and

Secretary of the College Service Commission to replace the

recommendation of the petitioner "by another one with same category"

(the words are further indicative of the mindset of the Governing Body).

The impugned decision also gives rise to serious civil consequences on

the rights of the petitioner in specific and persons with disabilities in

general. This Court finds the impugned decision to be denounce-worthy

having regard to the provisions of the 1995 and 2016 Acts and being in

direct contradiction with the objectives sought to be achieved by the

statutes. The decision deserves to be quashed and set aside.

36. While the Court may not appropriate unto itself the power of

recommending the petitioner for appointment, the Court deems it fit to

direct the Governing Body to arrive at a fresh consideration of the facts

before it and revisit the issue with due regard to the statutory mandate.

37. WPA 6043 of 2020 is accordingly partially allowed by quashing

the resolution taken by the Governing Body of the College on 10.06.2017

and the Governing Body is directed to come to a fresh decision within a

period of 8 weeks from the date of communication of this order.

38. The writ petition along with all connected applications is

disposed of accordingly.

Urgent Photostat certified copies of this Judgment, if applied for,

be supplied to the parties upon fulfillment of requisite formalities.

(Moushumi Bhattacharya, J.)