IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND:: MIZORAM AND ARUNACHAL PRADESH) WP(C) No. 2284 of 2012 Monomohan Sarma, S/o Late Kama Dev Sarmah, Village- Belsor, P.O.- Belsor, District- Nalbari, Assam. -Versus-.Petitioner 1. State of Assam, through the Principal Secretary to the Government of Assam, Department of Labour and Employment, Dispur, Guwahati-6. 2. Director, Directorate of Employment & Craftsmen Training, Government of Assam, Rehabari, Guwahati-8, Assam. 3. Jamal Uddin Ahmed, through the Director of Employment & Craftsmen Training, Government of Assam, Rehabari, Guwahati 8, Assam...Respondents Advocates for the petitioners : Mr P K Tiwari, Sr. Adv, Mr R J Das, Mr K Saxena. Advocates for the respondents : Mr Nur Mohammad, GA, Assam. Mr S P Das, SC, Directorate of Employment & Craftsmen Training, Mr H Sarma. PRESENT HON BLE MR. JUSTICE UJJAL BHUYAN Date of hearing : 26.05.2015 Date of Judgment : 08.06.2015 WP(C) No. 2284 of 2012 Page 1 of 9
JUDGEMENT AND ORDER (ORAL) Heard Mr P K Tiwari, learned Senior Counsel for the petitioner and Mr S P Das, learned Standing Counsel, Directorate of Employment & Craftsmen Training (respondent No. 2). Also heard Mr Nur Mohammad, learned Government Advocate for respondent No. 1 and Mr H Sarma, learned counsel for respondent No. 3. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to constitute a Medical Board to ascertain the disability of respondent No. 3. Alternate prayer made is for quashing the selection and appointment of respondent No. 3 as Grade-IV under respondent No. 2, i.e., Director, Directorate of Employment & Craftsmen Training and to appoint the petitioner in place of respondent No. 3. 3. Petitioner has studied up to Class-IX. He is orthopaedically disabled and suffers from 45% disability. In this connection, disability certificate has been issued by the Department of Orthopaedics, Gauhati Medical College Hospital (GMCH) on 20.02.1999. 4. Director of Employment and Craftsmen Training, Assam issued an advertisement dated 14.05.2007 to fill up vacancies in Grade-IV in the offices of Heads of Department in the State of Assam. It was stated that the candidates should have minimum educational qualification of studying up-to Class-VIII. Candidates should be in the age group of 18 years to 37 years as on 01.01.2007, relaxable by 5 (five) years in the case of SC and ST candidates. It was further stated that there would be reservation in accordance with law including reservation for women candidates and physically handicapped candidates. It was stated that applications should be submitted through the Employment Exchange. WP(C) No. 2284 of 2012 Page 2 of 9
5. Petitioner submitted his application through the Employment Exchange disclosing that he was orthopaedically handicapped to the extent of 45% disability. Viva-voce test was held on 25.11.2005. After a long delay, select list was ultimately published on 25.02.2009. As per the select list a total of 144 candidates were recommended for appointment as Grade-IV, which included reserved category candidates, including both vertical and horizontal. The 144 selected candidates included 3 (three) candidates belonging to the physically handicapped category. Petitioner s name did not figure in the select list. Petitioner could collect information under the Right to Information Act, 2005, which disclosed that a total of 3 (three) physically handicapped candidates had appeared in the viva-voce test. In respect of the 3 (three) selected candidates under the physically handicapped category, the first candidate was shown as orthopaedically handicapped, the second candidate was shown as physically handicapped (40%), whereas the third candidate was shown as deaf and dumb. Thus, the first and the third candidate belonged to orthopaedically handicapped and hearing impaired category respectively. The disability of the second candidate was not properly disclosed, inasmuch as, it was disclosed that he was physically handicapped with 40% disability. Further information furnished to the petitioner was that he (petitioner) had secured 14.3 marks in the viva-voce. Identity of the candidate, who was selected as physically handicapped (40%) was not initially disclosed. Subsequently, it was disclosed and he is respondent No. 3. Petitioner could gather that respondent No. 3 had secured 13.7 marks, which was lesser than that of the petitioner. If respondent No. 3 belonged to the orthopaedically handicapped category he could not have been selected overlooking the higher marks secured by the petitioner. Aggrieved, the present writ petition has been filed. 6. In the course of the proceedings, a number of affidavits have been filed by the parties. WP(C) No. 2284 of 2012 Page 3 of 9
7. Before adverting to the pleadings it would be apposite to briefly reiterate what has been initially noticed as per information furnished to the petitioner; the first selected candidate under the physically handicapped category suffered from orthopaedic disability and the third selected candidate suffered from hearing impairment. In so far the second candidate, i.e., the respondent No. 3 was concerned he was shown as PH- 40% without properly disclosing the nature of disability. The 3 (three) selected candidates under the physically handicapped quota had secured the following marks in the interview: - Sl. No. Name of the candidate Category Marks secured 1. Sri Dhan Kumar Das PH (Ortho) 20 2. Sri Jamaluddin Ahmed PH (40%) 13.7 3. Smt Mamoni Das PH (Hearing Impaired) 15.0 8. In the counter affidavit filed by respondent No. 2, on 19.07.2013, it is stated that out of the 3 (three) physically handicapped candidates one was orthopaedically handicapped, other one was blind and the third one was deaf and dumb. In other words, it was stated that respondent No. 3 suffered from blindness to the extent of 40%. Disability certificate of respondent No. 3 was annexed to the said affidavit. 9. In his reply affidavit, petitioner has pointed out that the disability certificate of respondent No. 3 disclosed his date of birth to be 29.04.1969, which means that as on 01.01.2007, respondent No. 3 was above 37 years of age, which was the upper age limit for the said recruitment process. Thus, respondent No. 3 was overaged. WP(C) No. 2284 of 2012 Page 4 of 9
10. An additional counter affidavit has been filed by the respondent No. 2 on 18.06.2014, in which it is stated that respondent No. 3 was selected as a visually impaired candidate. Though the petitioner was registered as an orthopaedically handicapped candidate under the Employment Exchange, during the interview he did not submit his disability certificate. Accordingly, petitioner was considered as a general category candidate by the interview board. The 3 (three) vacancies earmarked for physically disabled candidates were distributed as under:- 1. 1 (one) for orthopaedically handicapped. 2. 1 (one) for visually impaired. 3. 1 (one) for hearing impaired. The physically handicapped candidate, who was selected under the orthopaedically handicapped category had secured more marks than the petitioner. Petitioner cannot claim the vacancy earmarked for the visually impaired candidate. It is however, admitted that age of respondent No.3 was inadvertently overlooked because of large number of candidates. It is admitted that both petitioner and respondent No. 3 are physically handicapped. Regarding the prayer of the petitioner for constitution of a Medical Board to examine the disability of respondent No. 3, it has been left to the discretion of the Court. 11. Respondent No. 3 has also filed affidavit stating that he is a visually handicapped person with 40% visual impairment and enclosed a disability certificate dated 28.01.2009. 12. Petitioner has filed rejoinder affidavit to the affidavit filed by the respondent No. 3, contending that as per the disability certificate, respondent No. 3 was over aged for the selection. The disability certificate was obtained on 28.01.2009, whereas, the interview was held on November 2008, following which the select list was published on 25.02.2009. The disability certificate was obtained not only after the WP(C) No. 2284 of 2012 Page 5 of 9
advertisement but also after holding of the interview. Therefore, no reliance can be placed on such a certificate. 13. Mr Tiwari, learned Senior Counsel for the petitioner submits that in the course of the proceedings, it has not come on record that respondent No. 3 was over-aged at the time of interview and therefore, the authority should not have selected him since he was age barred for the recruitment process. The disability certificate was obtained on 28.01.2009 after the interview was held in November 2008. Therefore, no credit can be given to such a disability certificate. In any case, respondent No. 3 was all along described as a physically handicapped candidate (40%), without disclosing the nature of disability. It was only in the counter affidavit of respondent No. 2 where it was disclosed for the first time that respondent No. 3 suffers from visual impairment, which has created many a doubt about the genuineness of the disability claimed by respondent No. 3 as a visually impaired candidate. 14. Mr Das, learned Standing Counsel, Directorate of Employment and Craftsmen Training, submits that respondent No. 3 was selected as a physically handicapped candidate under the visually impaired category. Whatever was done by the department was done bonafidely without any malafide intention. He submits that even if selection of respondent No. 3 is interfered with, petitioner cannot claim the post of respondent No. 3 since he belongs to orthopaedically handicapped category and respondent No. 3 belongs to the visually impaired category. Claim of the petitioner would be against the candidate selected under the orthopaedically handicapped category, who had admittedly secured more marks than the petitioner, being 20.0 against 14.3. He also submits that the record does not indicate consideration of the petitioner as a physically handicapped candidate, because he did not produce the disability certificate at the time of interview. He has produced the record for perusal of the Court. WP(C) No. 2284 of 2012 Page 6 of 9
15. Mr Sarma, learned counsel for respondent No. 3 submits that respondent No. 3 suffers from 40% visual impairment and has the disability certificate, which has been placed on record by the respondent No. 2. This disability certificate was issued much earlier, in fact, on 27.05.2005. Since then, it has been renewed from time to time including the last one issued on 28.01.2009. Therefore, there is no illegality in the selection of respondent No. 3. On the other hand, petitioner did not appear in the interview as a physically handicapped candidate. Therefore, he would be debarred from questioning the selection of respondent No. 3. In any case, disability of petitioner and respondent No. 3 are different. Regarding the objection as to age bar of respondent No. 3, learned counsel submits that no such ground has been urged in the petition. 16. Submissions made have been considered. Record produced by the learned Standing Counsel has been perused. 17. Record shows that respondent No. 3 had submitted his disability certificate, which was issued on 27.05.2005 and subsequently renewed before the authority. It indicates that respondent No. 3 is suffering from visual impairment in the right eye to the extent of 40%. Disability certificate of the petitioner is also available on record as an annexure to the writ petition, which is dated 30.05.2007 and discloses orthopaedic disability to the extent of 45 %. The record discloses that 10 (ten) interview boards were constituted for the purpose of interviewing the candidates including the physically handicapped candidates. Though the names of Sri Dhan Kumar Das, Sri Jamaluddin Ahmed (respondent No. 3) and Smt Mamoni Das are available in the list of physically handicapped candidates interviewed, name of the petitioner is not available. This shows that petitioner was not interviewed as a physically handicapped candidate. 18. The whole controversy has arisen because of the information furnished to the petitioner under the Right to Information Act, 2005, by WP(C) No. 2284 of 2012 Page 7 of 9
disclosing the disability of respondent No. 3 only as (PH-40%). The record indicates that he was considered as a visually impaired candidate. As already noticed, the disability certificate of respondent No. 3 is dated 27.05.2005, extended from time to time. In such circumstances, when respondent No. 2 had accepted the candidature of respondent No. 3 as a visually impaired candidate, which is supported by documents placed on record, Court is not inclined to subject respondent No. 3 to further medical scrutiny because of the confusion created by the nature of information furnished under the Right to Information Act, 2005. That would be patently unfair to respondent No. 3 who is already suffering from visual impairment. 19. That leaves the question of overage of respondent No. 3. As already noticed above, as per the advertisement, the candidates were required to be not more than 37 years of age as on 01.01.2007. Admittedly, the date of birth of respondent No. 3 is 29.04.1969, which makes him above 37 years of age as on 01.01.2007. As a matter of fact, respondent No. 3 had exceeded the age of 37 years as on 01.01.2007 by about 8 (eight) months. Question for consideration is whether at this stage, selection of respondent No. 3 as a physically handicapped candidate should be interfered with on the ground of over age. When the writ petition was filed, this was not the ground taken by the petitioner. This fact had surfaced in the course of the proceeding from the disability certificate of respondent No. 3 from the disability certificate of respondent No. 3. Respondent No. 2 in his affidavit while admitting that respondent No. 3 had crossed the upper age limit, has stated that this fact was inadvertently overlooked because of bonafide reason as there were a large number of candidates. Though the advertisement is silent regarding relaxation of the upper age limit of a candidate, Court can take judicial notice of the fact that there are standing guidelines of the State permitting age relaxation in deserving cases for entry into government service upto the age of 45 years. WP(C) No. 2284 of 2012 Page 8 of 9
20. This is a case where the candidature of respondent No. 3 was accepted by the authority. He was selected as a physically disabled candidate. Only when the selection was challenged before this Court it has come to light from the disability certificate of respondent No. 3 that he was over-aged by about 8 (eight) months as on 01.01.2007, as fixed by the advertisement. Declaring the selection of the respondent No. 3 to be void on account of being over-aged at this stage in the considered opinion of the Court may not be justified and certainly would be inequitable. Since State has the power to relax the upper age limit in appropriate and deserving cases, Court is of the view that in a case of this nature such relaxation may be provided, in an ex-post facto manner, since selection had already taken place, pursuant to which respondent No. 3 has been appointed. 21. In light of the above discussion, this Court is not inclined to interfere with the selection of respondent No. 3. Accordingly, writ petition is dismissed. 22. Record produced by Mr Das is returned back. Dorothy JUDGE WP(C) No. 2284 of 2012 Page 9 of 9