Sujata Sahu vs State Of Odisha And Ors
2022 Latest Caselaw 3034 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.10531 of 2022 along with W.P.(C) Nos.41190 of 2021,
41597 of 2021, 368 of 2022, 496 of 2022, 2440 of 2022, 8743 of 2022,
8744 of 2022, 8745 of 2022, 8894 of 2022, 11353 of 2022 & 11355 of
2022.
(In the matter of applications under Articles 226 and 227 of the
Constitution of India, 1950).

  In W.P.(C) No.10531 of 2022

  Sujata Sahu                                 ....         Petitioner
                              -versus-
  State of Odisha and Ors.                    ....         Opp. Parties

  Advocates appeared in the case through Hybrid Mode:
  For Petitioner               :       Mr. Deepak Kumar Mohapatra,
                                                             Adv.

                              -versus-

  For Opp. Parties            :          Mrs. Suman Pattanayak, AGA
                                           Mr. Biswajeet Mohanty, SC
                                                  (for S & ME Deptt.)

  In W.P.(C) No.41190 of 2021

  Manoj Kumar Rout                            ....        Petitioners
                              -versus-

  State of Odisha and Ors.                    ....         Opp. Parties

  Advocates appeared in the case through Hybrid Mode:
  For Petitioner               :         Mr. Saswat Kumar Acharya,
                                                             Adv.

                              -versus-
                                                           Page 1 of 25
 For Opp. Parties            :          Mrs. Suman Pattanayak, AGA
                                         Mr. Biswajeet Mohanty, SC
                                                (for S & ME Deptt.)

In W.P.(C) No. 41597 of 2021

Simarekha Jena                              ....         Petitioner
                            -versus-
State of Odisha and Ors.                    ....         Opp. Parties

Advocates appeared in the case through Hybrid Mode:
For Petitioner               :       Mr. Umesh Chandra Jena, Adv.
                              -versus-

For Opp. Parties            :          Mrs. Suman Pattanayak, AGA
                                         Mr. Biswajeet Mohanty, SC
                                                (for S & ME Deptt.)

In W.P.(C) No.368 of 2022

Mrutyunjaya Nayak                           ....         Petitioner
                            -versus-
State of Odisha and Ors.                    ....         Opp. Parties

Advocates appeared in the case through Hybrid Mode:
For Petitioner            :          Mr. Ramdas Achary, Adv.
                           -versus-

For Opp. Parties            :          Mrs. Suman Pattanayak, AGA
                                         Mr. Biswajeet Mohanty, SC
                                                (for S & ME Deptt.)

In W.P.(C) No.496 of 2022

Anasuya Sahoo                               ....         Petitioner
                            -versus-
State of Odisha and Ors.                    ....         Opp. Parties

                                                         Page 2 of 25
 Advocates appeared in the case through Hybrid Mode:
For Petitioner               :           Mr. Ramdas Achary, Adv.
                              -versus-

For Opp. Parties           :            Mrs. Suman Pattanayak, AGA
                                          Mr. Biswajeet Mohanty, SC
                                                 (for S & ME Deptt.)

In W.P.(C) No.2440 of 2022
Dillip Kumar Panda                           ....         Petitioner
                             -versus-
State of Odisha and Ors.                     ....         Opp. Parties

Advocates appeared in the case through Hybrid Mode:
For Petitioner               :           Mr. Ramdas Achary, Adv.
                              -versus-

For Opp. Parties           :            Mrs. Suman Pattanayak, AGA
                                          Mr. Biswajeet Mohanty, SC
                                                 (for S & ME Deptt.)

In W.P.(C) No.8743 of 2022

Rupali Mohanty                               ....         Petitioner
                             -versus-
State of Odisha and Ors.                     ....         Opp. Parties

Advocates appeared in the case through Hybrid Mode:
For Petitioner               :       Mr. Deepak Kumar Mohapatra,
                                                           Adv.
                              -versus-

For Opp. Parties           :            Mrs. Suman Pattanayak, AGA
                                          Mr. Biswajeet Mohanty, SC
                                                 (for S & ME Deptt.)




                                                          Page 3 of 25
 In W.P.(C) No. 8744 of 2022

Guru Prasad Nath Sharma                      ....         Petitioner
                             -versus-
State of Odisha and Ors.                     ....         Opp. Parties

Advocates appeared in the case through Hybrid Mode:
For Petitioner               :       Mr. Deepak Kumar Mohapatra,
                                                           Adv.
                              -versus-

For Opp. Parties           :            Mrs. Suman Pattanayak, AGA
                                          Mr. Biswajeet Mohanty, SC
                                                 (for S & ME Deptt.)

In W.P.(C) No.8745 of 2022

Sukanta Mahapatra                            ....         Petitioner
                             -versus-
State of Odisha and Ors.                     ....         Opp. Parties

Advocates appeared in the case through Hybrid Mode:
For Petitioner               :       Mr. Deepak Kumar Mohapatra,
                                                           Adv.
                              -versus-

For Opp. Parties           :            Mrs. Suman Pattanayak, AGA
                                          Mr. Biswajeet Mohanty, SC
                                                 (for S & ME Deptt.)

In W.P.(C) No.8894 of 2022

Debasis Naik                                 ....         Petitioner
                             -versus-
State of Odisha and Ors.                     ....         Opp. Parties

Advocates appeared in the case through Hybrid Mode:
For Petitioner             : Mr. Deepak Kumar Mohapatra, Adv.
                                                          Page 4 of 25
                                -versus-

For Opp. Parties           :              Mrs. Suman Pattanayak, AGA
                                            Mr. Biswajeet Mohanty, SC
                                                   (for S & ME Deptt.)

In W.P.(C) No. 11353 of 2022

Renubala Pradhan                               ....         Petitioner
                               -versus-
State of Odisha and Ors.                       ....         Opp. Parties

Advocates appeared in the case through Hybrid Mode:
For Petitioner               :       Mr. Deepak Kumar Mohapatra,
                                                           Adv.
                              -versus-

For Opp. Parties               :          Mrs. Suman Pattanayak, AGA
                                            Mr. Biswajeet Mohanty, SC
                                                   (for S & ME Deptt.)

In W.P.(C) No. 11355 of 2022

Samuel Mohanty                                 ....         Petitioner
                               -versus-
State of Odisha and Ors.                       ....         Opp. Parties

Advocates appeared in the case through Hybrid Mode:
For Petitioner               :       Mr. Deepak Kumar Mohapatra,
                                                           Adv.
                              -versus-

For Opp. Parties               :          Mrs. Suman Pattanayak, AGA
                                            Mr. Biswajeet Mohanty, SC
                                                   (for S & ME Deptt.)




                                                            Page 5 of 25
           CORAM:
          DR. JUSTICE S.K. PANIGRAHI

            DATE OF HEARING:-19.05.2022
           DATE OF JUDGMENT:-11.07.2022

 Dr. S.K. Panigrahi, J.

1. Since similar questions of law and fact are involved in all

the above Writ Petitions, all the matters were heard

together. However, this Court felt it appropriate to decide

W.P.(C) No.10531 of 2022 first and whatever the outcome of

the said Writ Petition, the same will be covered to other

similar Writ Petitions mentioned above.

2. The petitioner challenges the validity of the action of the

Opp. Parties to reduce the permanent disability of 70%

issued by the Medical Authority, Kalahandi to temporary

disability of 30% by the State Appellate Medical Board on

15.12.2021, communicated vide letter No.17570/ CDMO &

PHO, Cuttack dated 15.12.2021 and seeks a direction from

this Court to the Opposite Parties for constitution of another

Appellate Medical Board for confirmation of the disability

of the petitioner. He further seeks a direction to the

Opposite Parties to give contractual appointment to the

petitioner as TGT Arts under PWD category.

Facts of the case

3. The petitioner had applied for engagement for the post of

contractual T.G. Teacher, Arts being a PWD candidate

having the disability certificate of 70% permanent issued by

the Medical Authority, Kalahandi. The Director Secondary

Education, Odisha had issued advertisement dtd.28.08.2021

for the recruitment to the post of trained Graduate teachers,

Telugu Teacher in Government Secondary School in the

State of Odisha. Pursuant to said advertisement, the

petitioner being an eligible candidate having requisite

qualification had applied for the said post under SCBC,

PWD category as she possessed BSc with B.Ed qualification

and was also qualified under OSSTET which is not disputed

by the opposite Parties. The petitioner had appeared for the

computer-based test (CBT) on 25.10.2021 and qualified in

the said test. Thereafter, the petitioner was placed in the

provisional select list published vide notice dated

03.12.2021. The Opposite Party, No.2 vide Letter dated

09.12.2021, allocated the candidates who have been

provisionally selected to the concerned districts. The

petitioner was posted in Sambalpur district. After

verification of documents by District Education Office,

Sambalpur and as per direction by the Directorate of

Secondary Education, Odisha, the petitioner was allotted to

NR NODAL High School, Rengali vide letter dated

09.12.2021.

4. Thereafter, the Director of Secondary Education, Odisha

vide letter dated 13.12.2021 published a notice directing the

PWD candidates selected for the post of TGT contractual to

appear before the State Medical Appellate Board on

15.12.2021 as per the venue mentioned to verify the

genuineness of their disability. Accordingly, the petitioner

appeared before the State Appellate Medical Board, where

the Medical Board after examining the permanent disability

of the petitioner, came to a finding that the Disability is

Temporary at 30%. Therefore, the petitioner filed a Writ

Petition before this Court in W.P. (C) No.40559 of 2021

challenging such finding of the Appellate Medical Board

dated 15.12.2021 with a prayer for a direction to the

Opposite Parties to give engagement to the petitioner as

teacher Contractual T.G. being a selected candidate under

PWD category as per the Disability certificate and thereby

quash the letter dated 15.12.2021 and sought for reviewing/

re-examining the disability evaluation.

5. This Court while considering the grievance of a similarly

placed person to the petitioner in W.P.(C) No.11022 of 2018,

vide order dated 13.07.2018, disposed of the petition with a

direction for holding of reassessment of disability to address

the confusion, considering the striking difference in the

medical assessment conducted by ENT Department, S.C.B.

Medical College and Hospital, Cuttack and AIIMS,

Bhubaneswar. Pursuant to this order, Director of Secondary

Education, Odisha, Bhubaneswar rejected the prayer of the

petitioner vide order No.6479 dated 09.03.2022.

Submission of the Petitioner

6. Learned Counsel for the Petitioner submits that the State

Appellate Medical Board which was conducted at Govt.

Boys' High School, Unti-1, Bhubaneswar for examining the

case of the petitioner assisted by the SCB Medical College,

Cuttack despite it was clearly directed under notification

dated 21.12.2021 that the PWD candidates of Balangir,

Subarnapur, Boudh, Nuapada, Kalahandi shall appear

before Santha Bhima Bhoi Medical College & Hospital,

Balangir. Therefore, the conducting of Appellate Medical

Board of the State at Bhubaneswar on dated 15.12.2021 itself

is a clear violation to the notification dated 21.12.2021.

Secondly, the order of rejection dated 09.03.2022 without

considering the petitioner's grievance for reassessment of

the parentage of disability in view of the order passed by

this Hon'ble Court vide order dtd.13.7.2018 passed in

W.P.(C) No.11022 of 2018 and subsequently some similarly

situated persons like petitioner in W.P.(C) No. 40587 of 2021

vide order dated 03.01.2022 and W.P.(C) No. 1592 of 2022

vide order dated 03.02.2022 had the similar fate which is

completely illegal, unlawful, bad in law and hence liable to

be set aside.

7. He further strenuously argued that the petitioner will be

deprived of getting the engagement in the post of

contractual TGT, Arts despite she has been duly selected

and she has the valid disability certificate having 70%

permanent disability issued by the Medical Authority,

Kalahandi due to the unlawful action of the Opposite

Parties. In such circumstances, the petitioner has filed the

present writ petition invoking the jurisdiction under Article

226 of the Constitution of India for judicial review of the

state action to protect her fundamental rights guaranteed

under Articles 14, 16 & 21 of the Constitution of India.

II. Submissions on Behalf of the Opposite Parties

8. Learned counsel for the Opposite Parties submits that after

coming into force of the "The Right of Persons with

Disabilities Act, 2016", the Government of Odisha in Social

Security & Empowerment of Persons With Disabilities

Department passed a Resolution dated 5th September, 2017,

wherein instructions have been issued regarding manner of

Reservation and other concessions for the persons with

Disabilities in various posts or services under State

Government or Public Sector Undertakings. Clause-2(4) of

the above said Resolution dated 5 September, 2017 spells

out that:

"Verification of disability certificates: The Appointing Authorities shall verify the disability certificate before appointment to prevent false or fake claims and to ensure appointment of genuine persons with disability. They may initiate action against such persons who attempts to commit fraud and avail benefits meant for persons with disabilities. The appointing authority shall get all disabilities verified by "the Appellate Authority" being appointed under section 59(1) of "Right of persons with Disabilities Act, 2016"

This mandate of law has been followed by the department from time before issuance of appointment orders to the candidates.

9. He further submits that the Principal Secretary to

Government School and Mass Education Department vide

Letter dated 12.12.2021 requested to the Additional Chief

Secretary, Health and family Welfare Department

requesting therein to convene a special Appellate Medical

Board at Unit-1 Boys High School, Bhubaneswar on

15.12.2021 to ascertain and certify the disability of selected

candidates. In response to above said letter dated 12.12.2021

of the Principal Secretary to Govt., School and Mass

Education Department, the Additional Secretary to

Government, Health and Family Welfare Department vide

letter dated 13.12.2021 requesting therein to the Director,

Capital Hospital, Bhubaneswar, Superintendent, SCB

Medical College and Hospital, Cuttack and Chief District

Medical and Public Health Officer, Cuttack for convening of

Special Medical Board on 15.12.2021 at 8.00 A.M in Unit-1

Boys' High School, Bhubaneswar. As per the above said

letter for OH category the Appellate Medical Board of S.C.B,

Medical College and Hospital examined the candidates

belonging to Orthopedically Handicapped category. For VI,

HI and MD category candidates, the Director, Capital

Hospital constituted the Board.

10.He further submits that the petitioner appeared before the

Special Medical Board on 15.12.2021 in Unit-1 Boys' High

School, Bhubaneswar without any demur or without

questioning the constitution of the Special Medical Board in

Unit-1 Boys' High School, Bhubaneswar and after being

assessed to have lower percentage of disability, he has

turned around and questioned the same. In none of the writ

petition, the constitution of the Special Medical Board on

15.12.2021 in Unit-1 Boys High School, Bhubaneswar has

been questioned, but during the course of argument, the

petitioners questioned the constitution of the Special

Medical Board, without challenging the same in their writ

petition, rather they accepted the same and appeared before

the Special Medical Board on 15.12.2021 in Unit-1 Boys High

School, Bhubaneswar.

11.Learned Counsel further submitted that a similar question

was confronted by the Hon'ble Supreme court in the case of

Chairman, Odisha joint Entrance Examination vrs.

Jasobanta Nayak1. In the said case, in the prospectus, it was

mentioned that the percentage of disability will be

determined by a Medical. Board consisting of Dean &

Principal, S.C.B Medical College and Hospital and two

Assistant Professors, Department of Ophthalmology. The

Medical board assessed the disability of the candidate at

20%, whereas the District Medical Board had awarded 40%

disability. The Apex Court accepted the assessment made

by the Medical Board constituted as per the Prospectus.

Further, a similar view has been taken by a Division Bench

of this Court in the case of Miss Debashree Mahapatra vrs.

Union of India and others2.

Court's Analysis and Reasoning

12.The petitioner had applied for the post of Contractual

Trained Graduate Teacher under P.H category pursuant to

Advertisement dated 28.08.2021 issued by Director of

Secondary Education, Odisha, Bhubaneswar. As per clause-

(2016) 12 SCC 402

W.P(C) No.15952 of 2016

12 of the above said Advertisement, "A candidate selected

under PWD category, shall be referred to Appellate Medical Board

and only on being certified as PWD by the Appellate Medical

Board shall be considered for engagement." Subsequently, after

the enactment of Right of persons with Disabilities Act,

2016, the Government of Odisha in Social Security &

Empowerment of Persons With Disabilities Department

passed a Resolution dated 5th September, 2017, wherein

instructions have been issued regarding manner of

Reservation and other concessions for persons with

Disabilities in various posts or services under State

Government or Public Sector Undertakings which may be

extracted herein below:

            "Social    Security    &     Empowerment        of
            Persons With Disabilities Department
          [No.                 7140-SSEPD-DA-II-MISC-
          0136/2017/SSEPD..]

2. Definition, percentage of Disabilities and Certifying Authority to issue disability certificate. (4) Verification of disability certificates: The Appointing Authorities shall verify the disability certificate before appointment to prevent false or fake claims and to ensure appointment of genuine persons with disability. They may initiate action against such persons who attempts to commit fraud and avail of the benefits meant for Persons with Disabilities. The appointing authorities shall get all disabilities verified by "the Appellate

Authority" being appointed under section 59(1) of "Rights of Persons with Disabilities Act, 2016" by this department from time to time before issue of appointment orders to the candidates.

The Rights of Persons with Disabilities Act,

59. Appeal against a decision of certifying authority.--(1) Any person aggrieved with decision of the certifying authority, may appeal against such decision, within such time and in such manner as may be prescribed by the State Government, to such appellate authority as the State Government may designate for the purpose. (2) On receipt of an appeal, the appellate authority shall decide the appeal in such manner as may be prescribed by the State Government."

13.Admittedly, the petitioner appeared before the Special

Medical Board on 15.12.2021 in Unit-1 Boys High School,

Bhubaneswar without questioning the constitution of the

Special Medical Board in Unit-1 Boys' High School,

Bhubaneswar. However, after being assessed to have lower

percentage of disability, he is raising questions over the

same. Even, in none of the Writ Petition filed before this

Court, they have challenged the constitution of the Special

Medical Board on 15.12.2021 in Unit-1 Boys' High School,

Bhubaneswar. However, during the course of argument

such issue has been raised vehemently. Similar issues have

been dealt by the Apex Court in some of the important cases

and held that the High Court cannot sit as a super Appellate

Board to review the findings of the Appellate Medical Board

since the Board is a professional body comprising experts in

their respective branch of knowledge.

14.The Supreme Court in the case of Chairman, Odisha Jt. Entrance vs Jasobanta Nayak & Ors3 has succinctly observed that:

"It needs no special emphasis to state that the percentage of disability has to be determined by the Medical Board, which is specifically mentioned in the prospectus. The said Board consisting of Dean & Principal, S.C.B. Medical College, Cuttack, and two Assistant Professors, Department of Ophthalmology, S.C.B. Medical College, Cuttack, has assessed the disability of vision of the respondent No.1 on 16th June, 2012, at 20% and issued the certificate. Be it noted, the certificate granted by the District Head Quarters Hospital, Balasore, was 40%. A Court cannot assess the percentage of disability. As per the prospectus, the Medical Board has to be constituted consisting of senior Professors of the S.C.B. Medical College, Cuttack and Chairman, OJEE 2012 or his representative under the Chairmanship of Principal, S.C.B. Medical College or his nominee.

The Medical Board has been constituted as per the norms of prospectus and it has clearly recorded its opinion as regards the disability of vision of the respondent. In such a situation, we are constrained

CIVIL APPEAL NOS.288-289 OF 2016

to hold that the High Court was not justified in interfering with the selection process in exercise of writ jurisdiction and declaring the disability of the respondent No.1 at 40% and to consider his case in the category of physically handicapped persons. The approach being erroneous, the order is wholly untenable."

15.In the case of Miss Debashree Mahapatra vs Union Of India

And Others4, the High Court of Orissa was confronted with

quite identical set of facts where the petitioner, a physically

challenged candidate, having 45% locomotor disability of

right leg as per disability certificate issued by the District

Medical Board, Khurda was denied admission into the

MBBS/BDS course. The disability certificate issued by the

Special Medical Advisory Board stated that the petitioner

had suffered disability to the extent of 10% only, hence, she

was not eligible for admission. The Court observed that:

"In view of the aforesaid facts and circumstances, we are of the considered view that the decision taken by the medical board in consonance with the conditions stipulated in the brochure for finding out the disability of the person concerned is final and, more so, the reliance placed on the certificate issued by the authority on 02.04.2011 being of five years back, the same cannot be taken into consideration. But, the petitioner may avail the facilities, concessions and benefits admissible under

W.P.(C) No. 15952 of 2016

the said certificate for purposes other than that of admission into the course, which is fully covered by the conditions stipulated in the brochure itself and also the law laid down by the Apex Court discussed above."

16. Madras High Court in the case of M. Rosy v. The Secretary

to Government5 made certain interesting observations

which may be extracted here under:

"Further procedural safeguards urged by the petitioners that certificates produced by them and obtained from the District Medical authority should be final also does not take into account as the special board was constituted by the State Government in terms of the directives issued by the MCI. In the absence of any malafide alleged against those authorities, this court is not inclined to disturb the findings arrived at by the respondents. In the matter of this nature where the facts are matters of record, the petitioners' asking for further opportunity is not provided under the prospectus issued by the respondents."

17. The Delhi High Court in the case of Alok Ranjan vs

National Medical Commission6 made a critical observation

pertaining to issuance of disability certificates. The Court

observed that:

"When doctors are examining the Petitioner and is observing in the certificate about the nature of

W.P.Nos.18641 and 18642 of 2012

W.P.(C) 9933/2020

disability and the percentage of disability, there is no need to further opportunity of being heard to be given to the Petitioner. We have no reason to disbelieve the opinion given by the Board of Doctors of the designated institute/hospital. There is no personal malice alleged against the doctors who have issued the certificate."

18. In Vidhi Himmat Katariya v. State of Gujarat7, the

Supreme Court proceeds to observe in Para 17 of the said

judgement that "when the experts in the field have opined

against the petitioners, the Court would not be justified in

sitting over as an appellate authority against the opinion

formed by the experts." In the present case, the petitioner

appeared before the Special Medical Board on 15.12.2021 in

Unit-1 Boys High School, Bhubaneswar and it found that

there is a lower percentage of disability. The findings of the

Appellate Board should have been attached some amount of

sanctity and the candidate should have accepted.

19. Before parting, it is observed that the petitioner has prayed,

in the writ petition that in cases of persons already having

permanent disability certificates, they should be examined

by the Appellate Medical Board only to the extent of

checking the authenticity and genuineness of their

certificate. Quite obviously, the same is untenable and it

would be extraneous on the part of this Court to direct the

W.P (C) NO. 885/2019

appointing authority to revamp its assessment criteria and

procedure. The writ petitioner further prays that the

medical examination of the petitioner be done in Maharaja

Krushna Chandra Gajapati Medical College and Hospital at

Berhampur or Veer Surendra Sai Institute of Medical

Sciences and Research, Burla. The same has been dealt with

and the Medical Board, which has been constituted by no

less an authority than the above-mentioned Medical

Colleges. After due examination, the Medical Board has

opined against the petitioner's entitlement on the basis of

her reviewed disability level to the post of Contractual

Trained Graduate Teacher.

20. Section 58 of the Rights of Persons with Disabilities Act,

2016 sets out the procedure for certification which are as

follows:-

"58.Procedure for certification.-- (1) Any person with specified disability, may apply, in such manner as may be prescribed by the Central Government, to a certifying authority having jurisdiction, for issuing of a certificate of disability.

(2) On receipt of an application under sub- section (1), the certifying authority shall assess the disability of the concerned person in accordance with relevant guidelines notified under section 56, and shall, after such assessment, as the case may be,--

(a) issue a certificate of disability to such person, in such form as may be prescribed by the Central Government;

(b) inform him in writing that he has no specified disability.

(2) The certificate of disability issued under this section shall be valid across the country."

21.Article 14 of the Constitution of India guarantees that the

State shall not deny to any person equality before the law or

the equal protection of laws. But unequal cannot be treated

equally. Persons with severe disabilities will have to be

treated on a different footing altogether. India is a party to

the Convention on the Rights of Persons with Disabilities,

2006. Article 18 of the said Convention expects the States

parties to ensure that the persons with disabilities are not

deprived on the basis of disability of their ability to obtain,

possess and utilize documentation of identification.

Declaration on the Rights of Disabled Persons, 1975 also

affirms the rights of disabled persons to services which

enable them to develop their capabilities and skills to the

maximum and will hasten the process of their social

integration or reintegration.

22.The need of a disabled individual to obtain identification

paper and certificate of disability hardly requires special

emphasis. Article 21 of the Constitution of India enshrines

the fundamental right to life and liberty and the disabled

persons who are obviously entitled to rights guaranteed

under Article 21 of the Constitution of India. Accordingly,

they are entitled to obtain a certificate under Section 58 of

the Rights of Persons with Disabilities Act, 2016 without any

hassle or difficulty. The International Conventions as well as

the Statutes governing their rights spell out barrier free

access to rights and services. Without obtaining the

certificate mentioned above, the disabled will be denied

access to certain fundamental rights and facilities.

Consequently, they cannot lead a quality life.

23.When the State has thought of reassessment of disability by

an Appellate Medical Board, it has to be borne in mind that

the need of sensitivity and expected societal responsiveness

is very important. A disabled person is entitled to receive

special treatment. Under the constitutional framework, the

State has to have policies for such categories of people.

Article 41 of the Constitution of India casts a duty on the

State to make effective provisions for securing, inter alia, the

rights of the disabled and those suffering from other

infirmities within the limits of economic capacity and

development. It is imperative that the authorities look into

the real grievances of the disabled people as that is the

constitutional and statutory command. The State has to play

the role of loco parentis and show its concern to redress the

grievances in proper perspective. In the present case, the

petitioner was assessed to have 40% temporary disability by

the Appellate Medical Board, which is staggeringly different

from the assessment done by the District Medical Authority,

Kalahandi. The Petitioner was assessed to have 70%

permanent disability by the District Medical Authority,

following which she submitted her candidature for the post

of Trained Graduate Teacher. This anomaly portrays a

different picture altogether.

24.Any Court is expected to confine the scope of discussion as

well as direction as to what the facts of the particular case

demands. One is not supposed to paint on a canvass larger

than what is required. This Court has, therefore, consciously

restrained itself in holding that the State Appellate Medical

Board shall conduct disability reassessment and make

necessary arrangements for videography of the same.

However, videography of the assessment procedure would

not only aid in digitalization of databases, but also act as an

evidence when the concerned procedure is challenged by an

aggrieved person on grounds of fairness and

appropriateness. The Appellate Medical Board is required to

be equipped with such videography facility.

25.Additionally, the members of the Medical Board constituted

for the purpose of re-assessment must be meticulous with

the disabilities pertaining to distinct organs of the human

body. The assessment process must be as simple as possible.

It must not cause any difficulty or trauma or even the least

burden to the individual concerned. It is clinically

appropriate that assessment for issuing such certificates is

done by doctors and experts proficient in treating and

examining persons with disability as mandated by the Act.

Further, the Board Members should examine actively and

not curiously as they perform a statutory duty. The entire

procedure must be recorded digitally through high

resolution photographs and videos. Video recording of the

procedure will ensure accuracy of the record. Further, by

preserving matters which are not apparent from the written

record, the judges can form a better view of the case at hand

and that would lead to better appreciation of evidence for a

rational conclusion. The Judge can also focus on a close-up

of the procedure in order to ascertain the validity of the

disability certificate. These must be re-run and replayed

with ease without any hassle.

26.In matters involving teaching and education, courts are

required to exercise a considerably greater degree of

circumspection. The element of public interest, which is pre-

eminent in such cases, can never be ignored. While this

Court does not intend, in any manner, to doubt the

capability of the petitioner, and appreciate his

achievements, despite his unfortunate physical limitations,

the standards set by the Regulations framed by the Social

Security Empowerment of Persons with Disability (SSEPD),

are set by experts, keeping the best interests of the

candidates. This court cannot profess to greater wisdom

than the framers of the said Regulations. Howsoever

laudable the achievements of the candidate may be, if she,

or he, does not meet the requirements, stipulated in the

Regulations framed by the Social Security Empowerment of

Persons with Disability (SSEPD) for admission to the MBBS

course, she, or he, has to face the situation which stoic

resignation. This Court, which has, at all times, confined to

its actions to the well-delineated peripheries of the law, is

unable to provide succour in such a case.

27.In the light of the above factual matrix and in the absence of

any legal or enforceable right on the part of the petitioner,

this Court is not inclined to entertain the Writ Petition.

Accordingly, all the Writ Petitions stand dismissed. No

orders as to costs.

(Dr. S.K. Panigrahi ) Judge Orissa High Court, Cuttack, Dated the 11th of July, 2022/B. Jhankar