Adarsh Kumar Tiwari & Anr. vs State Of U.P. Through Its Secy. Basic Education Civil Lko.

Heard Shri Rishabh Kapoor, learned counsel for the petitioners along with Shri Mohit Singh Rajput, learned counsel for the petitioner, learned Standing Counsel for the respondents-State and Shri Ran Vijay Singh, learned counsel for the respondent nos.2 and 6.

By means of the present writ petition, the petitioners are challenging orders dated 15.7.2010 passed by the respondent no.3 and the order of termination dated 24.1.2011 passed by the respondent no.6 and order dated 28.10.2010 passed by the respondent no.3 and the impugned notice dated 20.12.2010 issued by the respondent no.6 by means of which the salary of the petitioners were withheld.

Factual matrix of the case is that the petitioners who were meeting the eligibility criteria applied for "Special B.T.C. Training Course 2007-08" in pursuance of the Government Order dated 10.07.2007 and advertisements dated 17.07.2007 and 07.01.2009.

The petitioner applied in physical handicap category after the submission of the original documents, they were sent on training for Special B.T.C. Training Course, 2007 and 2008 respectively by the respondent no.7. The petitioner submitted before respondent nos.6 and 7 "physical handicapped certificates" issued by the Chief Medical officer of the concerned District along with fitness certificate.

After due selection in Special B.T.C. Training Programme 2007 and 2008, the petitoners were awarded Special B.T.C. Certificate after proper verification and satisfaction. On 15.7.2010, the Director SCERT had issued a letter to all the Principal D.I.E.Ts of the State of U.P. to send the candidates before the Medical Board constituted at Balrampur Hospital, Lucknow for their physical re-verification who had applied in Special B.T.C. Training Course 2007-08 under Physical Handicap Certificate.

The Physical Handicap Certificate was issued in favour of the petitioners by duly constituted medical board as per the provisions of Rules 4 and 5 of the "Persons with Disabilities (equal opportunities, protection of rights and full participation), Act 1955".

The petitioners were to be examined in between 26.07.2010 to 06.09.2010 before the impugned Medical Board and there is no procedure prescribed as to how this newly constituted Medical Board will give proper opportunity to the petitioner for fair examination.

Against the order dated 15.07.2010 a Special Appeal No.811 of 2010 was preferred and this Hon'ble High Court vide order dated 09.09.2010 disposed of the Special Appeal with certain directions in compliance of which the State Government dissolved the Medical Board constituted for re-examination.

The respondent no.3 vide impugned circular dated 28.10.2010 had directed the respondent no.7 to issue notices to the petitioners on the basis of medical examination conducted by a medical board constituted by earlier circular dated 15.07.2010 and also take subsequent action against the petitioners after seeking their reply. In response to the directions the respondent no.6 issued notices to the petitioners vide its order dated 20.12.2010.

The impugned circulars dated 28.10.2010 and 20.12.2010 is not supported with any material evidence regarding allegations alleging Physical Handicap Certificate to be forged, nor any medical report or any material had been supplied to the petitioners for substantiating the impugned ab initio illegal and biased action against the petitioners.

The petitioner submitted reply to the show cause notice to B.S.A., but the B.S.A. did not paid any heed to the same. In pursuance to the above impugned circular and notice, the respondent no.6 i.e. the B.S.A. without supply any evidence has terminated the services of the petitioners vide order dated 24.01.2011 in the most arbitrary, capricious and illegal manner. The act of the opposite parties is a clear-cut violation of Article 14 of the Constitution of India. Hence the present writ petition has been filed.

Learned counsel for the petitioners submits that in pursuance to the notification issued inviting application for appointment on the post of Assistant Teacher by the Board of Basic Education, Allahabad the petitioners applied for handicapped category and submitted their certificate of handicap before the respondent-Board; after examination of certificate the petitioner was found to be 40% and 45 % disable respectively; and selected under the category of disable and sent for training.

Learned counsel for the petitioners next submits that on the complaint lodged to the State Government, Medical Board was constituted to examine the certificate of candidates who applied under disability category.

Learned counsel for the petitioners next submits that interference at the level by the State Government is contrary to the provisions of U.P. Basic Education Board Staff Clauses Rules, 1973.

Learned counsel for the petitioners next submits that the State Government cannot participate in initiation of disciplinary proceedings in the matter of Assistant Teacher appointed by the Board of Basic Education, therefore the submission of learned counsel for the petitioners is that interference at the level of the State Government is wholly without jurisdiction.

Learned counsel for the petitioners next submits that certificates issued by the Chief Medical Officer were not declared to be fraudulent certificates, therefore the orders of termination and consequential orders thereto are bad in law and warrant interference by this Court.

Learned counsel for the petitioners next submits that the orders of termination passed by the respondents are wholly without jurisdiction as that has been passed on wholly erroneous and misconceived ground by constituting a Medical Board under the order of the State Government and the certificates issued at the earlier point of time by the C.M.O. and examined by the Medical Board have not been cancelled till date.

Learned counsel for the petitioners next submits that orders impugned have been passed in utter disregard of the principles of natural justices, therefore the same is liable to be set aside being violative of principle of natural justice.

Last submission of learned counsel for the petitioners is that the order impugned are per se illegal and is are liable to be set aside by this Court.

Learned counsel for the petitioner also submits that the petitioners are discharging their duties in pursuance to the interim order granted by this Court on 18.3.2011.

In support of this submissions, learned counsel for the petitioners has placed reliance upon the judgment passed in Writ Petition No.2941 of 2004 (Anusuiya Sharma v. State of U.P. and 4 others) decided on 20.3.2024 reported in Neutral Citation No.2024:AHC: 53230.

On the other hand, Shri Ran Vijay Singh, learned counsel for the respondent nos.2 and 6 submits that on the complaint lodged before the State Government by the complainant fresh exercise for constituting Medical Board was initiated and in pursuance thereof, the petitioners were found to be below percentage of disability as required in the advertisement, therefore the act and action of the State Government at the Board of the Basic Education did not warrant interference in exercise of power under Article 226 of the Constitution of India.

Shri Ran Vijay Singh, learned counsel for the respondents next submits that the orders impugned do not suffer from infirmity or illegality are just and valid orders.

Next submission of Shri Ran Vijay Singh, learned counsel for the respondents is that the orders impugned have been passed after issuing show cause notice to the petitioners, therefore there is no violation of principles of natural justice.

Learned Standing counsel submits that he is following the arguments advanced by Shri Ran Vijay Singh, learned counsel for the respondent nos.2 and 6 only to the extent that the complaint was lodged by the Handicapped Association and there was no individual complaint before the State Government to initiate fresh proceedings to examine the handicapped certificate.

Having heard the rival submissions of learned counsel for the parties, I have perused the material available on record.

The issue as has been involved in the present writ petition, but different of facts traversed to Hon’ble Supreme Court, was considered by Hon’ble Supreme Court i.e. in the case of State of U.P. and Others v. Ravindra Kumar Sharma and others (Civil Appeal No.758 of 2016) in which the Hon’ble Supreme Court observed as under:

After decision of the Hon’ble Supreme Court, a fresh notice appears to have been issued with reference to the order passed by the Hon’ble Supreme Court. In that contextual background, the extent of disability suffered by the petitioners is not established as the disability claimed by the petitioners has varied.

It is remarkable to the present facts that though a generic allegation was levelled against the petitioners that their disability certificate was fraudulent and that allegation was levelled in the show cause notice, the petitioners had completely denied that allegation and stoutly stated that they had been issued the disability certificate by the concerned Chief Medical Medical Officers. Copy of that certificates are also on record. It clearly bears the signature and seal of the issuing authority.

In the context of such facts, no finding has been recorded that the said certificates was not issued by the competent authority. Yet, after recording objection raised by the petitioners, the impugned orders only record the conclusion to cancel the petitioners’ selection- for no reason. Therefore, the conclusion reached that the disability certificates were fraudulent is unreasoned.

Faced with that, reliance has been placed on the fact that the original disability certificates do not make clear, if the disability suffered by the petitioners were permanent, partial or temporary. Here, the degree of disability suffered has varied.

This Court is constrained to observe that the submission in regard to disability certificates to be fraudulent advanced is wholly misconceived and untenable. The State, as an employer, provided for a welfare measure to allow for persons with disability to be accommodated in public employment on an equal footing. For that purpose, it is not only provided for reservation but also a mechanism to allow for the deserving to secure such public employment on the strength of their inter se merit. That mechanism included certification of medical disability suffered by government doctors acting through Medical Board constituted by respective Chief Medical Officer, a responsible and competent government functionary. He was obligated to constitute a team of experts to assess and certify such disability.

In the present facts, such team appears to have been constituted by the Chief Medical Officer concerned who issued the disability certificate to the petitioners. It is not the case of the State, either that that certificates were not issued by the Chief Medical Officer concerned or that that authority had acted in collusion with the petitioners. To constitute and appear before any medical board was not a choice given to the petitioner. For that matter, no individual citizen has any role to play.

The case of the respondents is not that the petitioners acted in any manner so as to prevent due verification of correct facts at the time when the public employment was granted to them. The enquiry did not arise on a suo motu action of the State but at the instance of a third party who claimed that many persons not suffering from any disability, had fraudulently obtained disability certificates and applied for reservation. As noted in the order passed by the Supreme Court that percentage was quantified to 21% of the total number of persons who may have been granted public employment on the strength of such fraudulently obtained certificates.

Thus, the disability certificates were issued to the petitioners by the duly authorized/ competent authority after medical examination of the petitioners. The Medical Board certified the disability suffered by the petitioners. These facts have remained undisputed, till date.

No other or further act has been found, despite repeated medical examination of the petitioners. Therefore, the deficiency if any in the constitution of the Medical Board is seen as an irregularity committed by the government functionary, not involving the petitioners.

Then though the disability suffered by the petitioners is now quantified at below the level, no material exists to reach a conclusion that the original estimation of the disability at 50% was fraudulent. Being an expert opinion, it may not be categorized as fraudulent merely because a different estimation has been made by another experts. It is also not shown that the disability suffered would not or had not been medically addressed, over that period.

On a query made, it also could not shown to us that the case of the petitioners was one that fell within the ambit of cases falling within the percentage of those cases. At the same time, learned counsel for the respondents alleges that such allegation was levelled in the show cause notice issued to the petitioners. This Court perused the notice and found, it nowhere states that the case of the petitioner was included in 21% cases of the fraudulent certificates.

The notice only stated that the certificates relied upon by the petitioners were fraudulent. How such fraud or fabrication was alleged, was neither disclosed in the notice nor any finding was recorded in the impugned order with respect to the same. As noted above, the petitioners have stoutly denied the allegation of fraud. The State has also not made a positive averment on oath that the disability certificate of the petitioners certifying 50% disability (as noted above), was forged or fabricated or fraudulently obtained.

By relying on such pleas, learned counsel for the respondents impliedly but necessarily admitted that the said certificates were in fact issued by the Chief Medical Officer concerned. The fact that that certificates may have been issued on the strength of medical examination, inasmuch as even on the last medical examination conducted by the State Authorities, it was opined that the petitioner suffered from disability.

Therefore, as a matter of fact, it cannot be denied that the petitioners continued to suffer from physical disability. Only, the extent of said disability is being disputed. Since the last assessment has been made after grant of appointment and no material whatsoever has been brought on record to establish that it is a case such disability may never been reduced, it may not survive to speculate the extent of disability suffered by the petitioners when they secured public employment.

The only disputed that the State may claim to exist is, the degree of that disability is not 50%. This Court is equally not inclined to act on that plea as that discrepancy has arisen after many years and not at the relevant time. It is admitted to the State that the disability certificates were issued several years ago. On its strength the petitioners were granted training and later appointment.

Similar controversy as has been involved in the present writ petition was dealt with by Coordinate Bench of this Court and while taking into account the observations made by the Hon’ble Supreme Court decided the issue in favour of the claimant. In the circumstance, the judgment relied upon by learned counsel for the petitioner in the case of Anusuiya Sharma (supra) is fully applicable to the present facts and circumstances of the case.

Perusal of the impugned orders show that the orders impugned have been passed without affording opportunity of hearings to the petitioners which is contrary to the principles of natural justice. In this regard, assertion has been made in paragraph 48 of the writ petition which has not been denied by the respondents in their counter affidavit. Meaning thereby, the fact in regard to violation of principles of natural justice has been admitted by the respondents. In this view of the matter, the impugned orders are liable to be quashed on this ground alone

The object of rules of natural justice is to ensure that an employee is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/ removal from service. It is a basic requirement of rules of natural justice that an employee should be given a reasonable opportunity of being heard in any proceeding which may culminate in a major punishment being imposed on the employee.

Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression “civil consequences” encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.

Considering in totalities of facts and circumstances of the case, this Court is of the opinion that once there is no finding that the disability certificates were not a genuine document or were not issued after proper medical examination, there cannot be any occasion to punish the petitioners even if there has been any error on the part of the Medical Board while issuing disability certificates.

Accordingly, this writ petition succeeds and is hereby allowed. Impugned orders dated 15.7.2010 passed by the respondent no.3; order of termination dated 24.1.2011 passed by the respondent no.6; order dated 28.10.2010 passed by the respondent no.3; and the impugned notice dated 20.12.2010 issued by the respondent no.6 are hereby quashed.