(b) the concerned medical authority in a government
hospital where he may be undergoing or may have
undergone treatment in connection with his disability:
Note.--No other proof of residence shall be demanded from
the applicant who has aadhaar or aadhaar enrollment
number."
(4) If an applicant is found ineligible for issue of certificate
of disability, the medical authority shall convey the reasons
to him in writing under Form VIII within a period of one
month from the date of receipt of the application.
(5) The State Government and Union territory
Administration shall ensure that the certificate of disability
is granted on online platform from such date as may be
notified by the Central Government."
15. A bare reading of Section 57 & 58 alongwith Rule 17 & 18, makes it
clear that an application for issuance of disability certificate is required to be
submitted by person with disability in the prescribed Form IV. Thereafter,
the medical authority after due examination shall issue either a permanent
certificate or a certificate for particular period in Form V in case of single
disability and in Form VI in case of multiple disability. From the format
No.V, it is seen that at the bottom, name and address of medical authority is
required to be mentioned.
16. From the procedure prescribed, it is gathered that as soon as the
application is made by person with disability, the same is required to be
processed and be placed before the Medical Board. In these cases, none of
the parties have disputed that Medical Board at District Hospital is the
medical authority under Section 57 & 58 of the Act. Further, after
examination of disability, if a certificate is issued, it is required to be so
recorded in the disability register maintained at District Hospital. This has
been specifically held in the enquiry report as also the stand taken in the
return by respondents. The finding in enquiry report and the stand taken by
respondents in return appears to be justified inasmuch as in absence of
registration of certificate in disability register, it is impossible to verify the
authenticity of certificate. Thus, a valid disability certificate issued by
Medical Board should find place in the record maintained by the Hospital
from where the same is issued.
17. It is a settled legal proposition that a thing is required to be done in
the manner prescribed. This has been so held by Apex Court in the case of
State of Jharkhand Vs. Ambay Cement & Anr., reported in (2005)1 SCC
368 wherein the Court held in para 26 as under:
"26.Whenever the statute prescribes that a particular act is
to be done in a particular manner and also lays down that
failure to comply with the said requirement leads to severe
consequences, such requirement would be mandatory. It is
the cardinal rule of interpretation that where a statute
provides that a particular thing should be done, it should be
done in the manner prescribed and not in any other way. It
is also settled rule of interpretation that where a statute is
penal in character, it must be strictly construed and
followed. Since the requirement, in the instant case, of
obtaining prior permission is mandatory, therefore, non-
compliance with the same must result in cancelling the
concession made in favour of the grantee, the respondent
herein."
18. It be noted that in none of the writ petition, copy of application
submitted by candidates under Section 58(1) of the Act of 2016 is placed on
record. Further, the fact that the disability certificates are not registered in
disability register goes to show that the prescribed procedure was not
followed while issuing the disability certificates in question.
19. The matter can be examined from another aspect. The certificate
relied upon by petitioner is placed on record as Annexure P/4. It is in the
same Format V. It is issued by Medical Board at Government District
Hospital, Morena (M.P.). The certificate number and the date of issuance are
also printed at the left top of certificate. However, at the bottom, neither the
name nor the designation of examining doctor is mentioned. Further, at the
left top there is a round seal of the District Hospital, Morena, which bears
serial no.4426 and date of 03.10.20218. Meaning thereby, when the serial
number is mentioned in the certificate, it should found place in the disability
register maintained by District Hospital. As per the finding recorded by
committee, the petitioner's certificate is not found registered at serial
no.4426 on 03.10.2018.
20. The petitioners' contention is that non-registration of certificate in
disability register is only an irregularity and it would not invalidate the
certificate. This submission is not acceptable inasmuch as the certificate,
being relied upon by petitioner, actually bear serial number mentioned at the
left top of certificate over the round seal of District Hospital. However, as
per the enquiry report, the certificate is not found to have been registered on
the said number. To illustrate, at the left top of certificate, within the seal of
District Hospital, the serial no.4426, dated 03.10.2018, is mentioned,
however, as per enquiry report, on 03.10.2018, the certificates from serial
no.2145 to 2189 alone are issued. Infact, in the entire year 2018, the
certificates from serial no.1084 to 2470 were issued. Thus, it is not a case of
mere irregularity of not mentioning the serial number but it is a case of
mentioning incorrect serial number on the certificate. Therefore, the
possibility of certificate being forged cannot be ruled out. The petitioners'
contention that it is only an irregularity, is, therefore, not acceptable.
21. Further, it is seen that the certificate does not bear the name and
designation of examining doctor. During enquiry, one member of Board viz.
Dr. Subhash Agrawal has denied his signature on the petitioner's disability
certificate.
22. The petitioners' counsel also made a submission that the disability
certificate of petitioner is also available on official portal of the department
and a Unique Disability ID has also been generated. A copy of UDID is
placed on record at page no.26 of the petition. However, from this
document, it is seen that the UDID is issued on 24.07.2020 whereas the
certificate in question was issued on 03.10.2018. This fact supports the
respondents' contention that initially the disability certificates were not
issued online but after the Covid-19 Pandemic was over, the certificates are
made available online. Meaning thereby, the disability certificate issued on
03.10.2018 has been subsequently uploaded on portal and UDID is
generated on 24.07.2020. Thus, the petitioner does not get any help from the
fact that the copy of certificate is available online.
23. Thus, it is to be held that a valid disability certificate is required to be
registered in the disability register maintained by the Hospital and its non-
registration creates a serious doubt about its genuineness and authenticity.
For the reasons aforesaid the certificate is invalid and unacceptable.
ISSUE NO. ii:
24. This takes us to the next issue regarding non-compliance with
principles of natural justice which has been heavily pressed into service by
petitioners' counsels.
25. The scope of applicability of doctrine of natural justice has been
considered by Apex Court in the case of Dharampal Satyapal Ltd. v. CCE
reported in (2015)8 SCC 519, wherein the Court held as under:
"39.We are not concerned with these aspects in the present
case as the issue relates to giving of notice before taking
action. While emphasising that the principles of natural
justice cannot be applied in straitjacket formula, the
aforesaid instances are given. We have highlighted the
jurisprudential basis of adhering to the principles of
natural justice which are grounded on the doctrine of
procedural fairness, accuracy of outcome leading to
general social goals, etc. Nevertheless, there may be
situations wherein for some reason--perhaps because the
evidence against the individual is thought to be utterly
compelling--it is felt that a fair hearing "would make no
difference"--meaning that a hearing would not change
the ultimate conclusion reached by the decision-maker--
then no legal duty to supply a hearing arises. Such an
approach was endorsed by Lord Wilberforce in Malloch v.
Aberdeen Corpn. [(1971) 1 WLR 1578 : (1971) 2 All ER
1278 (HL)] , who said that : (WLR p. 1595 : All ER p.
1294)
"... A breach of procedure ... cannot give [rise to] a
remedy in the courts, unless behind it there is something
of substance which has been lost by the failure. The
court does not act in vain."
Relying on these comments, Brandon L.J. opined in
Cinnamond v. British Airports Authority [(1980) 1 WLR
582 : (1980) 2 All ER 368 (CA)] that : (WLR p. 593 : All
ER p. 377)
"... no one can complain of not being given an
opportunity to make representations if such an
opportunity would have availed him nothing."
In such situations, fair procedures appear to serve no
purpose since the "right" result can be secured without
according such treatment to the individual.
40. In this behalf, we need to notice one other exception
which has been carved out to the aforesaid principle by the
courts. Even if it is found by the court that there is a
violation of principles of natural justice, the courts have
held that it may not be necessary to strike down the action
and refer the matter back to the authorities to take fresh
decision after complying with the procedural requirement
in those cases where non-grant of hearing has not caused
any prejudice to the person against whom the action is
taken. Therefore, every violation of a facet of natural
justice may not lead to the conclusion that the order passed
is always null and void. The validity of the order has to be
decided on the touchstone of "prejudice". The ultimate test
is always the same viz. the test of prejudice or the test of
fair hearing."
26. Keeping in view the aforesaid legal position, if the facts of these
cases are seen, it is gathered that the petitioners have not disputed the
finding that their certificates are not found registered in disability register of
District Hospital. On the contrary, their submission is that its non-
registration is only an irregularity and it would not invalidate their
certificates. Thus, in view of the conclusion reached above that non-
registration of certificate would invalidate the certificate itself, no fruitful
purpose would have been served, even if the petitioners were given
opportunity of hearing.
27. Further, there are large number of disability certificates which have
been found not registered in disability register and are thus declared invalid.
In these circumstances, the rule of audi alteram partem may not be attracted
as has been held by Apex Court in the case of Nidhi Kaim vs. State of M.P.
reported in (2016)7 SCC 615. In the said case, the Apex Court was
considering cancellation of results of 345 and 70 candidates as a result of
which the admissions granted to them in various medical colleges stood
cancelled. These were the students who got admission in medical colleges
after clearing PMT examination conducted by Professional Examination
Board, Bhopal. The argument of violation of principles of natural justice
was made before the Apex Court. Answering the said argument, the Apex
Court held in para 42 as under:
"42. From an analysis of the above decisions, the following
principles emerge:
42.1. Normally, the rule of audi alteram partem must be
scrupulously followed in the cases of the cancellation of the
examinations of students on the ground that they had
resorted to unfair means (copying) at the examinations.
42.2. But the abovementioned principle is not applicable to
the cases where unfair means were adopted by a relatively
large number of students and also to certain other
situations where either the examination process is vitiated
or for reasons beyond the control of both students and the
examining body, it would be unfair or impracticable to
continue the examination process to insist upon the
compliance with audi alteram partem rule.
42.3. The fact that unfair means were adopted by students
at an examination could be established by circumstantial
evidence.
42.4. The scope of judicial review of the decision of an
examining body is very limited. If there is some reasonable
material before the body to come to the conclusion that
unfair means were adopted by the students on a large scale,
neither such conclusion nor the evidence forming the basis
thereof could be subjected to scrutiny on the principles
governing the assessment of evidence in a criminal court."
28. Thus, the fact that the disability certificates were not found registered
in Government records, was sufficient for the respondents to reach to a
conclusion that the certificates in question are not genuine. Therefore,
compliance with rule of audi alteram partem was not required particularly
when the number of cases is large enough to make it impracticable.
29. Thus, this Court is of considered opinion that non-grant of
opportunity to the petitioners has not caused any prejudice to them
inasmuch as the petitioners do not dispute that their certificates are not
registered in disability register maintained at Government Hospital. The
petitioners' contention regarding violation of principles of natural justice is
accordingly rejected.
30. Coming on to the documents filed by petitioner alongwith rejoinder
wherein the certificates of three candidates have been found valid on re-
examination. It is seen that pursuant to the order passed by this Court on
26.06.2023, a five member committee was constituted who re-examined the
certificates of candidates. Upon re-examination, the certificates of these
three candidates were found valid. However, the petitioners whose
certificates have been found invalid even upon re-examination by five
member committee, do not get any help from the documents filed alongwith
rejoinder.
31. In W.P. No.21268/2023, the learned counsel for petitioner submitted
that the petitioner has secured 97% marks which is above the cut-off marks
of 93% prescribed for UR category and, therefore, his client is entitled to be
appointed under UR category. The submission so made is considered. It is
seen that the petitioners have submitted an affidavit at the time of
appointment that if any information/ document submitted by them is found
incorrect, their appointment shall be liable to be cancelled. Even otherwise,
the posts in question must have been filled up and the selected person is not
a party in the petition. In view of the aforesaid, the submission made by
petitioner's counsel is unacceptable.
32. In view of the discussion made above, the impugned orders passed by
respondents do not call for interference by this Court.
33. Since, the respondents have already conducted an enquiry regarding
validity of disability certificates of petitioners, no fruitful purpose would be
served by remitting the matter to the respondents. However, it is also a fact
that in some cases, the certificates have been found valid upon re-
examination. Therefore, liberty is granted to the petitioners to produce
material before the Commissioner, Public Instructions, Bhopal, within three
weeks from today, to show that their certificate is validly issued. If any such
material is produced, the Commissioner or any other competent authority
shall examine the same keeping in view the observations made hereinabove
and pass suitable order. Needless to mention, if the certificate of any of the
petitioner is found valid, consequential benefit be conferred on him.
34. Before parting with these matters, this Court is constrained to observe
about the manner in which the respondents have undertaken the exercise of
verification of documents. From the appointment order, it is seen that the
documents were verified before its issuance. Again, as per the condition in
the appointment order, the appointed candidates were required to produce
the documents in original for verification. The verification was accordingly
done and the petitioners were allowed to join their respective posts. The
certificates were found invalid only when the respondents re-verified the
same on receiving complaints. This shows that the documents were not
properly verified twice before the impugned action. This is a serious lapse
as a result of which carrier of number of persons is put to stake. The higher
authorities of the respondent department is, therefore, required to look into
this aspect of the matter and take remedial measures so as to avoid the
complications, as has arises in these cases, in future.
35. With the aforesaid observations, these petitions are disposed off.
(ASHISH SHROTI)
JUDGE
jps/-
