Elias Ahmed vs The State Of Assam And 7 Ors
2024 Latest Caselaw 3842 Gua

Gauhati High Court

Elias Ahmed vs The State Of Assam And 7 Ors on 3 June, 2024

Author: Kalyan Rai Surana

Bench: Kalyan Rai Surana

                                                                    Page No.# 1/12

GAHC010107162024




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/2808/2024

         ELIAS AHMED
         S/O- JAMAL UDDIN AHMED, R/O- VILL.- KARAGURI PATHER, P.O.
         CHAPABORI, P.S. AND DIST- BARPETA (BAJALI), ASSAM, PIN- 781352.



         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
         ASSAM, DISPUR, JANATA BHAWAN, GUWHATI-6.

         2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
          PERSONNEL DEPARTMENT
          DISPUR
          JANATA BHAWAN
          GHY-6.

         3:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
          DEPARTMENT OF SOCIAL JUSTICE AND EMPOWERMENT
          DISPUR
          JANATA BHAWAN
          GHY-6.

         4:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
          HEALTH AND FAMILY WELFARE DEPARTMENT
          DISPUR
          JANATA BHAWAN
          GHY-6.

         5:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS
         ASSAM
                                                                        Page No.# 2/12

             FOREST DEPARTMENT
             GHY-6.

            6:THE STATE LEVEL RECRUITMENT COMMISSION
             FOR CLASS-IV POSTS
             REPRESENTED BY ITS CHAIRMAN/SECRETARY
            ASSAM ADMINISTRATIVE STAFF COLLEGE
             JAWAHARNAGAR
             KHANAPARA
             GHY-22.

            7:THE JOINT DIRECTOR OF HEALTH SERVICES
             BARPETA
             DIST. BARPETA
            ASSAM
             PIN- 781031.

            8:THE MEDICAL BOARD
             REPRESENTED BY THE PRINCIPAL-CUM-CHIEF SUPERINTENDANT
             GAUHATI MEDICAL COLLEGE AND HOSPITAL
             GHY-32
            ASSA

Advocate for the Petitioner   : MR. S K ROY

Advocate for the Respondent : GA, ASSAM




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 03.06.2024

Heard Mr. S.K. Roy, learned counsel for the petitioner. Also heard Mr. C.K.S. Baruah, learned Govt. Advocate, representing respondent nos. 1 and 2; Mr. V. Choudhury, learned standing counsel for respondent no.6 and Mr. C. Sharma, learned standing counsel for respondent no.6.

2) The petitioner projects that he has speech and language Page No.# 3/12

impairment. The case of the petitioner is that an advertisement dated 25.03.2022 was issued by the Secretary, State Level Recruitment Commission for Class-IV Posts ('SLRC' for short), inviting on-line applications for filling up 13,300 nos. of vacant Class-IV posts. The petitioner had applied for the post of Peon under the category of Persons With Benchmark Disabilities (PwBD for short). The recruitment was to be done as per the Assam Direct Recruitment for Class-III and Class-IV Analogous Posts Rules, 2022. The petitioner had cleared the written examination held on 21.08.2022 and was declared qualified for the next level of test. Thereafter, the petitioner had appeared in the interview test held on 20.01.2023 and the petitioner had cleared the said test as per provisional result published on 04.05.2023 and accordingly, he became eligible for appointment. Subsequently, the "randomised posting result for SLRC Grade- IV recruitments" was published on 09.05.2023 and thereby, the name of the petitioner was recommended for the post of Peon in the establishments under the Environment and Forest Department, Govt. of Assam.

3) By virtue of notice published on 12.05.2023, all the recommended PwBD candidates were asked to appear before the Medical Education and Research Department for examining their benchmark disability. It is projected that on the appointed date and time, the petitioner had appeared and subjected himself for the medical re-verification that was conducted at Guwahati Medical College & Hospital, Guwahati (GMCH for short). However, in the result declared, the petitioner's name did not appear.

4) Therefore, the petitioner had preferred an appeal before the Principal Secretary, Department of Social Justice and Empowerment. Another advertisement was published on 27.07.2023, directing all PwBD category Page No.# 4/12

candidates who had filed appeal against their disqualification to re-appear before the Medical Board at GMCH on the date mentioned in the notice. The petitioner had again appeared before the Medical Board at GMCH for his medical re-examination. However, again the name of the petitioner did not appear in the list of candidates who had cleared the test.

5) The petitioner then approached this Court by filing a writ petition and this Court, by order dated 18.12.2023, disposed of W.P.(C) 7229/2023, directed the respondents to communicate the individual disability status to the petitioners vis-à-vis their claim for appointment against the posts applied for. The petitioner claims that on 03.04.2024, he was furnished with a communication dated 08.02.2024, disclosing his disability status assessed by GMCH on 02.08.2023, to the effect that he had "no locomotor disability" in the category of disability of "language and speech". The petitioner was also given a communication dated 31.05.2023, issued by the Joint Secretary to the Govt. of Assam, Personnel (A) Department, by which, against his medical report, it has been recorded to the effect that disability certificate cannot be issued as it is a case of fluency disorder and does not constitute speech disability (under Rights of Persons with Disabilities Act, 2016).

6) The petitioner projects that in the employment advertisement, it was not a prescribed terms and condition that a PwBD candidate would have to appear for medical re-verification. In this context, the learned counsel for the petitioner has submitted that the process was discriminatory as candidates other than PwBD were not required to undergo medical examination. It was submitted that disbelieving a certificate of disability for PwBD is also discriminatory. It was also submitted that as per Government notification dated 13.09.2023, the Page No.# 5/12

Medical Board was required to be constituted by Principal- cum- Chief Superintendent/ Superintendent of the concerned Medical College for the purpose of report and its report would be final and binding. Hence, it was submitted that the constitution of the Medical Board was illegal. It was further submitted that vide the disability certificate dated 08.07.2021, the competent Certifying Authority had assessed that the petitioner had speech and language disability and percentage of disability is 50%. It was also submitted that instead of notifying Rules within 6 (six) months as envisaged under section 101 of Rights of Persons with Disabilities Act, 2016, the State Government had been following clause 5 of the OM dated 21.05.2022, and had also issued another notification dated 13.09.2023, whereby powers were reserved for re-assessment of benchmark disability and cancelling the certificate issued by the Competent Authority.

7) By relying on the judgment passed by the Supreme Court of India in the case of Mohamed Ibrahim v. The Chairman & Managing Director & Ors., 2023 INSC 914, it was submitted that even if the nature of disability suffered by the petitioner has not been included as benchmark disability, but his certificate by a Competent Authority would entitle him to be considered for employment under reservation for PwBD category and the medical condition of the petitioner ought to be included as a benchmark disability.

8) It was submitted that a fresh advertisement dated 27.10.2023 has been issued for filling up 5,000 tentative vacant Class-IV posts under different departments, envisaging reservation for PwBD category. Accordingly, it was submitted that while issuing notice, one advertised post for PwBD category be kept vacant.

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9) The submissions of the learned State and departmental counsel have been heard.

10) It is not in dispute that before the petitioner was provided with an offer letter to join in service, he was asked to undergo medical re-examination, but he was not diagnosed as a person having benchmark disability. Therefore, the petitioner had approached this Court by filing a writ petition under Article 226 of the Constitution of India, which was registered as W.P.(C) 7229/2023. This Court by order dated 18.12.2023, disposed of the said W.P.(C) 7229/2023 by directing the respondents to communicate the individual disability status to the petitioner vis-à-vis his claim for appointment against the posts applied for. It is not in dispute that he was furnished with a communication dated 08.02.2024, disclosing his disability status assessed by GMCH on 02.08.2023 to the effect that he had "no locomotor disability" in the category of disability of "language and speech".

11) This Court had passed an order dated 18.12.2023, in W.P.(C) 7229/2023, filed by the petitioner. The petitioner had not assailed the said order, which had attained finality. Therefore, the petitioner had waived his right to challenge the constitution of the Medical Board. Even if such a challenge was made, by allowing the order dated 18.12.2023 to attain finality, the petitioner had abandoned such challenge. Therefore, the principle of constructive res judicata would be squarely applicable in this case and the petitioner cannot be permitted to now make a challenge to the manner in which the Medical Board was constituted, which he had waived and/or failed to challenge in the W.P.(C) 7229/2023, his earlier writ petition. It is well settled that having appeared in a selection process, it is not permissible for an unsuccessful candidate to turn Page No.# 7/12

back and challenge the selection process. If one needs any authority on the point, the case of D. Sarojkumari v. R. Helen Thilakom & Ors., (2017) 9 SCC 476, decided by the Supreme Court of India may be referred to.

12) In this case, all PwBD candidates were asked to report for conducting their Medical Re-Verification. Such a step cannot be said to be discriminatory to the petitioner.

13) The petitioner had participated in a selection process for 13,300 nos. of vacant Class-IV posts pursuant to an advertisement. The petitioner now claims that if his disability is not a benchmark disability, by applying the ratio of the case of Mohamed Ibrahim (supra), directions should be issued to the respondents to appoint him.

14) The Court has considered the aforesaid submissions, and is of the considered opinion that the aforesaid contention of the petitioner deserves to be rejected for 3 (three) reasons.

a. Firstly, this Court is required to exercise self-restraint while using its power to direct the State Government to appoint the petitioner under PwBD category because his disability is not assessed as a benchmark disability by the Medical Board.

The call as to which type of disability and what degree or percentage of particular disability should be a benchmark disability is a policy decision, which should be best left to the appropriate Government to decide. In this regard, we may refer to the decision of the Supreme Court of India in the case of Punjab State Power Corporation Ltd. v. EMTA Coal Ltd., (2022) 2 SCC 1 , wherein in the Page No.# 8/12

context of decision maker's freedom to change the policy in public interest, it was held that it cannot be fettered by applying the principle of substantive legislative expectation and it was held that even the change in policy does not call for interference by judicial review on the ground of a legislative expectation of an individual or a group of individuals being defeated.

b. Secondly, the Court does not have the requisite expertise to substitute its opinion over the expert opinion given by the Appeal Medical Board. It is reiterated that the petitioner had voluntarily appeared before the Medical Board and the Appeal Medical Board.

c. Thirdly, the Court cannot direct that the disability of the petitioner alone should be considered and included as a benchmark disability, when there may be many PwBD applicants whose nature of disability may also be liable to be examined by the appropriate Government and included as benchmark disability.

Thus, if any directions in the nature of second and third options above are ordered, then the Court would be substituting (i) the terms and conditions given in the employment advertisement; and also (ii) the terms and conditions of selection and appointment as set-out by the Government to give appointment under the PwBD category, considering certain prescribed category of disability to be the benchmark disability.

15) This is not a case where the appropriate Government, after conclusion of recruitment process, had declared certain percentage of specified Page No.# 9/12

disability as benchmark disability and appointed persons on pick and choose basis. Thus, when the disability with the petitioner was diagnosed, is not a pre- determined benchmark disability, it is not an acceptable submission on behalf of the petitioner that the respondent authorities have discriminated against the petitioner in any manner whatsoever.

16) On examination of the decision of the Supreme Court of India in the case of Mohamed Ibrahim (supra), it is seen that in the said case, the appellant was appointed as Assistant Engineer and after his appointment, he was subjected to medical re-examination. Thus, it apparently appears that on continuing his appointment, nobody else would be affected. Thus, on facts, the present case is distinguishable because in the present case, the petitioner was neither offered appointment nor he was given an appointment. Therefore, if the petitioner is directed to be appointed, there is every likelihood that someone's right may be affected, who is not before the Court. The relevant paragraphs 2 and 25 to 28 of the case of Mohamed Ibrahim (supra) is quoted below:-

2. The brief facts of this case are that the appellant was appointed as Assistant Engineer (Electrical) by the Superintendent's Office, Karur in 2015 [A notification No. 01/15 dated 28.12.2015 was published for direct recruitment to the posts of Assistant Engineer (Electrical), Assistant Engineer (Mechanical) and Assistant Engineer (Civil) in the Respondent Corporation.] and he joined the services on 31.03.2017 [vide Memo No. 02972I360IAdm.I./A1/ F. Appt.

order/2017-7 dated 31.03.2017 by the Superintendent Office, Karur]. The corporation informed [vide letter of selection bearing No. 024396/ 108/G.55/G.551/2015 dated 30.03.2017] the appellant about his selection and asked him to report to office of the Superintendent, Karur on 15.04.2017. Later, he was asked to produce a Physical Fitness Certificate from the Senior Civil Surgeon Government Hospital, Kumbakonam after medical examination. After the examination, the appellant was informed that he had colour defective vision (colour blindness). By outpatient receipt (dated 15.04.2017) he was referred to Assistant Surgeon, Govt. Hospital, Musiri, Trichy District. The Asst. Surgeon confirmed that Page No.# 10/12

he had colour blindness and referred him to the Medical Board/ Ophthalmology department of MGM Trichy. The Superintendent's Office at Karur wrote letter dated 31.10.2017 to the Medical Board, Thanjavur Medical College Hospital, requesting the appellant's medical examination and a report based on that examination. The Regional Medical Board (hereafter "RMB") asked the appellant to appear for medical examination; he was told by the medical officer that the report would be forwarded to the corporation. A report dated 23.02.2018 [bearing No. 13278/MB/2017], from RMB, Thanjavur was sent to the respondent, stating that:

" .... Fitness cannot be given for the patient since norms regarding colour vision not provided by the employer (TNEB)".

25. The appellant is, for all purposes, treated as a person with disability, but does not fall within the categories defined in the Act, nor does he possess the requisite benchmark eligibility condition. The objective material on the record shows that the colour vision impairment is mild. Yet, TANGEDCO's concerns cannot be characterised as unreasonable. However, TANGEDCO is under an obligation to work under the framework of "reasonable accommodation", which is defined by Section 2 (y) as follows:

"(y) "reasonable accommodation" means necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others;.."

26. Reasonable accommodation thus, is "appropriate modification and adjustments" that should be taken by the employer, in the present case, without that duty being imposed with "disproportionate or undue burden". TANGEDCO- the employer expresses its willingness to accommodate the appellant. Yet the position it offers, is highly inadequate: that it is belated, is beside the point. In the considered view of this court, the post offered, i.e., Junior Assistant, is inconsistent with the appellant's qualification cannot be offered to him; the offer is a mere palliative gesture, which he justifiably rejected.

27. TANGEDCO, during the hearing was unable to show how it employing the appellant in one of the many departments or units [as AE (Material Management) or AE (CAUP) in the office of the Executive Engineer or even as AE (General) in the office of the SE or as AE (General)] is not possible. The hierarchy of posts further indicates that the primary inspection responsibilities of technical nature are upon Junior Engineers, who oversee the work of Technical Assistants, and that of Linemen. It is evident that the AE works at a position of overseeing supervisory work of Junior Engineers. This could involve, at the field stage, satisfaction after visual inspection. Sufficient safeguards (whenever the appellant's services in that Page No.# 11/12

regard are absolutely essential, and he is deployed on some occasions) can be taken, to ensure that he is accompanied by those without any colour vision deficiencies or impairments. TANGEDCO's units and organizational structure, in this court's opinion, have sufficient possibility for accommodating the appellant in a unit or department which may not require utilization of skills that involve intense engagement with colour. As stated earlier, these are AE (General) in SE office, AE (CAUP) in EE office; AE (Material Management). The TANGEDCO, is under an obligation to ensure that the appellant is therefore, suitably accommodated in any such general department or establishment.

28. In view of the foregoing discussion, the impugned judgment cannot stand; it is set aside. TANGEDCO, the respondent corporation, is directed to appoint and continue the appellant in its service, as AE (Electrical) at the appropriate stage of the grade of pay, from the date he was terminated from service, or his appointment was cancelled, and accommodate him in a suitable department, where he can be given appropriate responsibilities. The appellant shall also be entitled to 50% of full arrears of salary, and all allowances, and his service shall be reckoned from the original date of appointment, (which was later cancelled), with full continuity. The appeal is allowed in these terms, without order on costs.

17) Thus, in view of the above, as the disability of the petitioner is not a benchmark disability, the petitioner ought to have impleaded all unsuccessful candidates of PwBD category, whose disability was percent-wise less than the benchmark disability, so that all equally placed persons may get an opportunity of being selected even if their percentage of disability is lower than the benchmark disability. Thus, this case appears to be hit by non-joinder of necessary parties.

18) Moreover, it is no longer res integra that after the selection process is concluded, any subsequent vacancy is required to be filled up by a fresh recruitment process. The new and/or newly available vacancies cannot be filled up from the persons who had participated in earlier selection process. Therefore, as the admitted case of the petitioner is that a fresh advertisement Page No.# 12/12

dated 27.10.2023, has been issued for filling up 5,000 tentative vacant Class-IV posts under different departments, envisaging reservation for PwBD category, no case has been made out by the petitioner to keep one newly advertised post under PwBD category vacant for accommodating the petitioner, who has not even participated in the subsequent selection process.

19) In light of the discussions above, this writ petition fails and is hereby dismissed at the "motion" stage, without issuance of notice on the respondents.

JUDGE

Comparing Assistant