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Judgment
This writ petition is directed against the order dated 28.10.2013 passed in O.A. NO. 315/2012 by the Central Administrative Tribunal, Bangalore Bench, Bangalore, dismissing the application filed by the petitioner confirming the order of his removal from service passed by the second respondent herein. The petitioner is a graduate in B.Sc. He is a Orthopaedically handicapped person and his three fingers viz. fourth, middle and ring fingers of his right hand have been amputated and on account of the same normal functioning of his fingers have been severely affected. He has secured a physically handicapped certificate dated 20.5.2000 issued by the Civil Surgeon, Area Hospital, Narasaraopet of Andhra Pradesh stating that he has the disability to an extent of 25% to 75%. The said certificate was issued after he got subjected for through medical examination.
The second respondent-Institution published a notification dated 4.12.2009 inviting applications for selection and appointment to fill up the post of ''Laboratory Assistant'' (reserved for Orthopaedically handicapped). The said notification was duly published in the advertisement dated 19.5.2000. The said notification did not mention that the percentage of disability for reserved quota should be minimum of 40%. The applicant in response to the same applied to the said post and indicated in the relevant column that he has disability to the extent of 25% to 75%. He also produced disability certificate issued in his favour dated 20.5.2000.
The second respondent-Institution accepted the said certificate and appointed him to the post of Laboratory Assistant. The petitioner accepted the appointment order and reported to duty on 29.6.2000 at CST, Mundgod. Ever since the date of his report, the record of his service maintained is very clean and excellent one inasmuch as he has not received any adverse communication whatsoever from the respondents questioning his integrity and devotion to work. In other words his record of service maintained by the respondents is very clean and unblemished one.
Such being the position one P.S. Rao-UDC working in the same CST at Mundgod gave complaint dated 30.4.2007 to the Director of Central Tibetan Schools Administration (''CTSA'' for short) alleging the petitioner has been appointed against the reserved quota for physically handicapped on the basis of the certificate produced by him stating he is having 25% to 75% disability which was written in his own handwriting on the certificate issued by the Medical Officer, but such type of certificate would not be issued, that a specific percentage would be indicated. It was alleged a candidate should have 40% disability for being appointed to the said reserved quota as required under the Rules. Based on the said complaint copy of the disability certificate was sent to the Medical Superintendent, Area hospital, Narasaraopet for verification of the genuineness of the certificate produced by the petitioner and the entries made against column No. 6(b) of the certificate vide letter dated 8.9.2008 pertaining to the percentage of disability entered therein. In response to the same the Medical Superintendent, Area Hospital, Narasaraopet (Andhra Pradesh) forwarded the letter dated 30.9.2008 of Dr. P. Akineedu Prasad, Civil Assistant Surgeon of the said hospital wherein he indicated that he has issued the Medical Certificate to the petitioner after examining him on 20.5.2000 by mentioning the disability as 25% only and the rest of the contents underlined in the read colour were not in his handwriting and appeared to have interpolated in the certificate issued by him indicating that there is material alteration. On the basis of the same departmental proceedings were initiated against the petitioner with reference to the provisions of the CTSA Disciplinary Rules, 2004 (for short ''the Rules'') and a charge memo dated 27.3.2009 was issued alleging the act of the petitioner amounts to grave misconduct under Article 53(14) of the Rules as contained in the CTSA Education Code. The petitioner denied the charge in his written statement dated 17.4.2009. Thereafter Enquiry Officer was appointed to conduct a detailed enquiry as per the provisions of Rule 53A of the Rules and after holding the enquiry the Enquiry Officer by his report dated 16.9.2011 held the charge leveled against the petitioner as proved. The said Enquiry Officer''s report was forwarded to the petitioner by the Director of CTSA under letter dated 28.9.2011, in response to which the petitioner submitted his representation dated 22.10.2011. The Disciplinary Authority after considering the report of the Enquiry Officer and the written representation of the petitioner passed an order removing the petitioner from service with immediate effect. The petitioner challenged the said order in appeal before the Chairman, CTSA who dismissed the same by order dated 11.5.2012 confirming the order passed by the Disciplinary Authority. Challenging the said orders the petitioner filed the application before the Tribunal which by the impugned order dismissed the same confirming the orders of removal from service.
The learned counsel for the petitioner contended the notification calling for applications for filling up the posts of Laboratory Asst. reserved for Orthopaedically handicapped persons did not specify that the applicants should have minimum percentage of disability to an extent of 40%. The Rules do not provide for the same. He further contended in the enquiry it was not proved that it was the petitioner who had made any alterations in the disability certificate issued in respect of the percentage of disability. The Enquiry Officer has given a finding that the material altered and interpolated percentage of 25% to 75% could not be proved that the same has been made by the Charged Officer. The Disciplinary Authority, reading it otherwise and holding that there is a material alteration and the petitioner does not possess the minimum percentage of disability for being appointed viz. 40%, committed an error in passing the order of removal from service. He further contended the Tribunal, without appreciating the material on record in its right perspective despite there being no material to show that the petitioner is responsible for the alteration in the certificate and as the Rules and the notification do not prescribe the minimum percentage of 40% with regard to the percentage of his disability made against column No. 6(b) of the certificate, committed an error in dismissing the application which cannot be sustained. Hence, it be set aside and the order of dismissal passed by the authorities be quashed.
Per contra, the learned counsel appearing for the respondents supporting the impugned order and specifically drawing our attention to The Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995 (for short ''the Act'') with reference to the definition at Section 2(t) of the said Act, which is extracted below contended, since the petitioner did not have minimum 40% of disability required for appointment as contemplated under initially he was not entitled to be appointed to the said post.
2(t) "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;
He further contended since the Act specifically prescribes the minimum percentage of 40% disability for being appointed to the category to which the petitioner had applied and as he did not possess that disability, he could not have been appointed. Admittedly, the doctor, who had issued disability certificate in favour of the petitioner, in unequivocal terms in his letter dated 30.9.2008 has clearly stated, on his examination of the petitioner on 20.5.2000 at Area Hospital, Narasaraopet, Andhra Pradesh, he has disability to an extent of 25% only and the rest of the contents underlined in the red colour are not in his hand writing. That goes to show that the petitioner has disability only to the extent of 25% with which percentage he is not entitled to be appointed for the post reserved for physically handicapped persons. Therefore, he contended the impugned order does not call for any interference and accordingly, the petition be dismissed.
The admitted facts are, the respondents had called for applications from the eligible candidates for filling up the post of ''Laboratory Assistant'' reserved for physically handicapped persons under the notification dated 4.12.2009. The petitioner had applied to the said post and had enclosed the disability certificate dated 20.5.2000 wherein as against Coloumn No. 6(b) the percentage was shown as 25% to 75%. Acting on the same the petitioner was appointed to the said post. Thereafter on receipt of the complaint from one P.S. Rao, who was working at the place where the petitioner was working, copy of the certificate that was produced by the petitioner was sent to Medical Superintendent, Area Hospital Narasaraopet, Andhra Pradesh, on 8.9.2005 for verification of the genuineness of the certificate. In response to the same the Medical Superintendent, Area Hospital Narasaraopet, Andhra Pradesh forwarded the letter dated 30.9.2008 of Dr. P. Akineedu Prasad of the said hospital wherein he indicated that he has issued the medical certificate to the petitioner after examining him on 20.5.2000 by mentioning the disability as 25% only and rest of the contents underlined in red colour were not in his hand writing and they appeared to have been interpolated subsequent to the issuance of the certificate by him indicating there was material alteration. It is not in dispute the petitioner had produced the certificate issued by Dr. P. Akineedu on 20.5.2000 after examining him on 20.5.2000. That certificate which the petitioner produced along with the application seeking for appointment indicated that he has disability to the extent of 25% to 75% which is contrary to the letter of the doctor who had examined him and issued the certificate stating that he has disability only to an extent of 25%. As already stated, the counsel for the respondents drawing our attention to the Act submitted minimum percentage of disability required for appointment to the post of physically handicapped persons is 40%. Since the Act provides for minimum percentage of disability at 40% for being appointed to the post called for, merely because it is not notified in the notification or it is not found in the Rules, since the Act becomes applicable as the petitioner does not possess the required percentage of disability viz. 40%, he is not entitled to be appointed to the said post. In the light of this and in view of the letter dated 30.9.2008 indicating that the petitioner has only 25% of the disability, as to who has made alteration in the certificate from 25% to 75% will have no bearing to the facts of the case. We may also observe that no doctor would issue a certificate stating that a person has disability from the range of 25% to 75%. On the other hand, the percentage of disability suffered by any individual would be indicated by the percentage of disability that a person has and not as indicated in the certificate produced by the petitioner along with the application. As already pointed out since the petitioner does not have minimum disability of 40%, he is not entitled to be appointed to the post for which applications were invited by the respondents.
Further Rule 53(14) of the Rules contemplates that if an employee is not qualified or eligible in terms of the Recruitment Rules for initial recruitment and had furnished false information or false certificate, he cannot be retained in service. In case of a permanent employee on conducting the enquiry as per the Rules and if charges are proved, the employee should be removed from service. In this case as the petitioner has produced a false certificate indicating that he has disability of the range of 25% to 75% which is not the certificate issued by the doctor who has examined him, he is not entitled to be continued in service. The authorities considering the same have removed him from service. The Tribunal on appreciation of the entire material on record has rightly dismissed the application of the petitioner which in our view does not call for any interference.
Accordingly, we do not find any merit in the petition and it is dismissed.