Court No. - 58
Case :- WRIT - A No. - 21907 of 2018 Petitioner :- Dhruv Kumar Singh Respondent :- State Of U P And 4 Others Counsel for Petitioner :- S.S. Singh,Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.,Mangla Prasad Rai
Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against a communication issued by the Principal, DIET, Sonebhadra, contained in Annexure-10 to the writ petition, whereby the petitioner has been directed to appear for his medical examination, failing which, his candidature itself would be cancelled. This order refers to previous communication sent to the petitioner on 13.2.2018, which records that physical examination of all those who have been appointed in the physically disabled category is required for fresh scrutiny in view of the adjudication made by Hon'ble Supreme Court on 3.2.2016 in Civil Appeal No.758 of 2016. The petitioner has been called upon to appear for his medical examination, accordingly. Petitioner being aggrieved by these two communication has approached this Court by filing the present writ petition.
Sri Ashok Khare, learned Senior Counsel appearing for the petitioner submits that the direction of the Hon'ble Supreme Court as well as consequential notices issued to the petitioner proceeds on factual assumption that petitioner has not been examined earlier pursuant to the government decision, whereas petitioner has in fact been examined and an undated report contained at page 24 is relied upon for the purposes. Submission is that since petitioner has already been examined medically earlier, the direction to the petitioner to appear again for medical examination is arbitrary. It is also stated that such decision is otherwise not protected by the orders of Hon'ble Supreme Court in view of the peculiar facts of the present case.
Petition is opposed by learned Standing Counsel as well as Sri M. P. Rai, learned counsel for the District Basic Education Officer.
I have heard learned counsel for the parties and have perused the materials brought on record.
Perusal of the record would go to show that a policy decision was taken by the State Government on the basis of certain representation made by the Association of Disabled Persons to have the physical disability certificate re-examined in view of large scale complaints made that manipulation had been made in issuance of such certificate and that appointments have been fraudulently obtained. A communication was, therefore, issued by the Director, State Council of Educational Research and Training on 15.7.2010 requiring the persons appointed in the disabled category to appear for fresh medical examination. This order gave rise to filing of writ petitions before this Court, which came to be dismissed. The order, however, was modified in Special Appeal Defective No.811 of 2010. It was in that context that the State Government approached the Hon'ble Supreme Court by filing Civil Appeal No.758 of 2016, wherein following observations have been made in paragraph 11 & 12 of the judgment:-
"11. In our considered opinion in the peculiar facts of this case of such a fraud and genuine suspicion raised in the representation lodged by the Viklang Sang and when 21% of such certificates have been found to be fraudulently obtained there was no scope for the Division Bench to interfere and issue order to perpetuate fraud, writ is to be declined in such a scenario and no equity can be claimed by the respondents.
12. In the circumstances we set aside the impugned judgment and order passed by the Division Bench of the High Court and dismiss the writ petition. However, before taking any action against the individuals they shall be issued show cause in the matter and thereafter decision will be rendered in accordance with law. Let this exercise be completed within a period of four months. The appeal is allowed to the aforesaid extent."
The requirement, therefore, for such candidates to be examined medically has been affirmed by the Apex Court. So far as the petitioner's grievance regarding his earlier examination is concerned, the same is not substantiated on facts before this Court. Although audio-gram report contained in Annexure-5 to the writ petition has been relied upon, but neither any date has been mentioned on it, nor any authenticity of such report could be ascertained from the document itself. Moreover, when the petitioner was served with notice on 13.2.2018, no such defence has been taken by the petitioner before the authorities. The petitioner even after having been served with notice has neither appeared for medical examination nor any explanation in that regard has been submitted. It is in this background that the present writ petition has been filed.
Having examined all such aspects, I am of the opinion that petitioner has not been able to substantiate that he has already been examined medically pursuant to the decision taken by the Director dated 15.7.2010, and therefore, the notice requiring the petitioner to appear for medical examination does not suffer from any infirmity.
Writ petition is, accordingly, dismissed.
Order Date :- 30.10.2018 Ashok Kr.