- (1.) IN this batch of writ petitions, the main controversy relates to the power and authority of the West Bengal Central School Service Commission and the Regional School Service Commissions constituted under the West Bengal School Service Commission Act 1997 (the '1997 Act') to have the disability status of the successful candidates who appeared in the Regional Level Selection Tests from the reserved category of disabled candidates determined by an independent Medical Board. The posts for which the selection process was being undertaken are for assistant teachers for different years. This exercise is being undertaken by the Commission without recognizing the level of disability reflected in the certificates of such candidates by the Medical Authority under the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the '1995 Act'). The candidates, who are petitioners before me had reached the counselling stage from the category of persons with disability, for whom three per cent of the total vacancies appear to have been kept reserved. The petitioners have come to this Court when they were required to undergo a verification process to ascertain the degree of their disability of their disability status itself at the time of selection, and in some cases after completion of the counselling process, as well as cases after being given appointment. These cases can be broadly divided into nine categories. In the first category, being category (A), the petitioners have come questioning the action of the authorities requiring them to report to a Medical Board prior to making recommendation for appointment in specific schools. The petitioners in W.P. No. 20285(W) of 2010, W.P. No. 1697(W) of 2010, W.P. No. 11161(W) of 2010 and W.P. No. 15845(W) of 2011, come within this category. In the second category, which I shall describe as category (B), the petitioners had appeared before the Medical Board before recommendation, but were not communicated or informed the decision of the Board. In W.P. No. 14002 (W) of 2010, W.P. No. 25883 (W) of 2010, W.P. No. 25885 (W) of 2010, W.P. No. 8935(W) of 2010, W.P. No. 25886 (W) of 2010 and W.P. No. 16763 (W) of 2010, the petitioners have come with their complaint at that stage. In W.P. No. 6878 (W) of 2010, W.P. No. 14033 (W) of 2010, W.P. No. 15217 (W) of 2010, W.P. No. 16764 (W) of 2010, W.P. No. 22941 (W) of 2010, W.P. No. 23141 (W) of 2010, W.P. No. 23564 (W) of 2010, which I shall refer to as category (C), the petitioners' candidatures were cancelled before making recommendation, when they appeared before the Medical Board at the instance of the concerned authorities, and the Medical Board found the extent of their disability below the threshold level, as specified in the 1995 Act. In the fourth group of cases, [category (D)], the writ petitioners in W.P. No. 12903 (W) of 2009, W.P. No. 21917 (W) of 2009, W.P. No. 21929 (W) of 2009, W.P. No. 21930 (W) of 2009, W.P. No. 953 (W) of 2010, W.P. No. 1689 (W) of 2010, W.P. No. 1705 (W) of 2010, W.P. No. 8176 (W) of 2010, W.P. No. 2329 (W) of 2010, W.P. No. 8403 (W) of 2010, W.P. No. 10895 (W) of 2010, W.P. No. 11162 (W) of 2010, W.P. No. 11163 (W) of 2010, W.P. No. 14917 (W) of 2010, W.P. No. 19713 (W) of 2010, W.P. No. 21469 (W) of 2010, W.P. No. 21647(W) of 2009, W.P. No. 23100(W) of 2009, W.P. No. 6810(W) of 2010, W.P. No. 22552(W) of 2012, W.P. No. 21852 (W) of 2010, W.P. No. 22013 (W) of 2010, W.P. No. 23142 (W) of 2010, W.P. No. 7187 (W) 2011 and W.P. No. 22329(W) of 2010 (along with CAN No. 5182 of 2011), were asked to report the Medical Board, and the authority of the Commission to do so have been challenged in these proceedings. It is not clear from the pleadings, however, as to whether they appeared before such Board or not, but their main case is that the Commission do not have the power to have their disability level reassessed, once they establish the degree of their disability on the basis of certificate issued by the competent authority under the 1995 Act. In W.P. No. 14032 (W) of 2010, W.P. No. 14892 (W) of 2010, W.P. No. 13483 (W) of 2010, W.P. No. 11925 (W) of 2010, W.P. No. 12088 (W) of 2010, W.P. No. 12091 (W) of 2010, W.P. No. 15332 (W) of 2010, W.P. No. 12636 (W) of 2010, W.P. No. 11741 (W) of 2010, W.P. No. 12390 (W) of 2010, W.P. No. 12385 (W) of 2010, W.P. No. 12364 (W) of 2010, W.P. No. 11703 (W) of 2010, W.P. No. 7886(W) of 2010, W.P. No. 11897(W) of 2010, W.P. No. 14901(W) of 2010, W.P. No. 13486(W) of 2010, W.P. No. 11895(W) of 2010, W.P. No. 11742 (W) of 2010, W.P. No. 11743 (W) of 2010, W.P. No. 11744 (W) of 2010, W.P. No. 11746 (W) of 2010, W.P. No. 14128 (W) of 2010, W.P. No. 15021 (W) of 2010, W.P. No. 14031 (W) of 2010, W.P. No. 14034 (W) of 2010, which group of cases I would refer to as category (E), the petitioners after being recommended for appointment and issue of appointment letters, have been asked to report to the Medical Board. In the next class of cases, the petitioners, who would form category (F), had been issued appointment letters and had attended the Medical Board at the instance of the Commission. On finding of the said Board that they were not eligible to appear from the reserved category of physically disabled candidates, the petitioners suffered withdrawal of their recommendation and cancellation of their candidatures. Such action against the petitioners have been challenged in W.P. No. 5238 (W) of 2010, W.P. No. 14895 (W) of 2010, W.P. No. 17543(W) of 2009. Category (G) relates to cases in which the petitioners were asked to report to the Medical Board after joining their respective posts, and they have approached this Court assailing the authority of the Commission to issue such direction. Such complaints have been made in W.P. No. 11893 (W) of 2010, W.P. No. 15126 (W) of 2010, W.P. No. 11894 (W) of 2010, W.P. No. 11896 (W) of 2010, W.P. No. 11920 (W) of 2010. Service of the petitioners in Category (H), who were already employed on being selected from the quota of physically disabled candidates, were invalidated after the Special Medical Board opined that their level of disability was below the specified level, making them ineligible for appointment as "physically disabled" candidates, in W.P. No. 5329 (W) of 2010, W.P. No. 5328 (W) of 2010, W.P. No. 5996(W) of 2010. In W.P. No. 11370 (W) of 2010, the petitioner seeks cancellation of the notice to show cause issued against him for not reporting to the Medical Board after being directed to do so. The said notice has been brought on record by filing an application, being CAN 64/12. The petitioner in this case had joined his service as a physically disabled candidate. This is the only case in category (I). There are some petitioners, the factual basis of whose cases fall outside these nine categories, but substance of their complaint remain the same. I shall deal with their cases separately.
(2.) ALL the petitioners have raised a common question of law and resisted the direction of the Commission, questioning their authority to undergo a fresh process for assessment of their level or degree of disability. Main contention of the petitioners is that the disability certificates issued to them under the provisions of 1995 Act should prevail for determining whether a candidate is physically disabled or not, and the decision of the Commission to require them to undergo an independent test for determining the extent of their disability is without jurisdiction or power. All the petitioners claim to possess valid certificates granted in terms of the provisions of the 1995 Act, barring the case of the petitioner in W.P. No. 23665(W) of 2010, in which the term of the certificate of the petitioner does not appear to have been subsisting at the time of the 10th Regional Level Selection Test, 2009, in which the said petitioner was a candidate. The petitioner's certificate in this proceeding was issued on 14th February, 2007. In this certificate, her condition has been described as "non -progressive/likely to improve", and reassessment of the same was recommended after a period of six months. There is no material to show that such re -assessment had taken place.
(3.) THESE writ petitions have been mainly resisted by the Commission, and the learned counsels for the State have supported their stand. On behalf of the Commission, affidavitsin - opposition has been filed in two proceedings, W.P. No. 6003 (W) of 2010 and W.P. No. 21647(W) of 2009. It has, however, been submitted by the learned counsel representing them that his clients (i.e. the Commission) would adopt the affidavit filed in W.P. NO. 6003(W) of 2010 in respect of all other writ petitions as identical legal issues are involved in those proceedings. Since the main legal point involved in all these petitions is the same, in this judgment I shall avoid narrating the factual basis of the individual cases, except in W.P. No. 6003 (W) of 2010, from which it would be possible to ascertain the perspective of the subject controversy. The petitioner in this proceeding had participated in the Seventh Regional Level Selection Test, 2006 for the post of Assistant Teacher in pure science under the Regional Commission, Western Region as a candidate from the physically handicapped category. In terms of Section 33 of the 1995 Act, three per cent of the posts are required to be kept reserved for persons with physical disability. Section 33 of the said Act Provides: - "33. Reservation of posts. -Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from - (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." The writ petitioner in this proceeding claims to have made an application for recognizing him as physically disabled candidate before the Medical Superintendent -cum -Vice Principal of Bakura Sammilani Medical College and Hospital and he had appeared before the Medical Board of the said Hospital on 29th June, 2006. He claims to be suffering from "unreduced dislocation of shoulder", and was examined by a Board of doctors in that hospital. After verification, the Board opined that he was physically handicapped and a certificate to that effect was issued by the Chairman of the said Medical College and Hospital finding him to be 45 per cent disabled. From the copy of the certificate, which has been made annexure 'P2' to the writ petition, I find that this bears signatures of the "Head of the Department of Orthopaedical surgeon", "Head of the Department Phyohiatrly (Mental) Ophthalmic surgeon" and the "Head of the Department, ENT" of the said hospital. This certificate records the degree of his permanent partial disability to be 45 per cent and the cause for such disability has been referred to as "unreduced dislocation of shoulder". This has been indicated against the column "upper extremity.";