Sukchand Mondal vs Kolkata Municipal Corporation & Ors

Md. Nizamuddin, J

Heard learned Advocates for the Parties.

This Writ Petition has been filed against the respondent Kolkata Municipal Corporation Authority on limited allegation that it is not intimating the date of joining in spite of issuing appointment letter dated 3rd December, 2012 issued in favour of the petitioner.

Relevant facts in brief as appears on perusal of record that pursuant to the advertisement published by Municipal Services Commission, petitioner applied for the post of Junior Assistant in Kolkata Municipal Corporation in Scheduled Caste (SC) Category. It is his case that after passing the written test and interview held by Municipal Service Commission, appointment letter was issued in his favour by the respondent Kolkata Municipal Corporation on 03.12.2012 being annexure 'P-11' to the Writ Petition, paragraph 11 of the said appointment letter contains as follows;

"........That you will be required to submit a fitness certificate of your health upon examination by the Medical Officer of K.M.C. or as may be directed before joining in the post. No TA/DA is admissible for the purpose...."

Petitioner filed the instant Writ Petition on 22nd February, 2013 making prayer for direction upon the respondent to allow him to join the post of Junior Assistant.

One very important relevant fact is that petitioner is 100% blind and he never filed any document disclosing this fact either to the Municipal Service Commission Authority or to the Kolkata Municipal Corporation as appears from Writ Petition. It is also an admitted position that the said appointment letter is also conditional and subject to fulfilment of condition mentioned in Paragraph 11 of the said appointment letter as recorded above clearly says that petitioner will have to submit a Fitness Certificate of his health upon examination by a Medical Officer of Kolkata Municipal Corporation before joining in the said post. During pendency of the Writ Petition the respondent Corporation has intimated to the petitioner by letter dated 08th August, 2013 being Annexure 'R-4' to the affidavit-in-opposition filed by the respondent Corporation cancelling his appointment to the post of Junior Assistant in Kolkata Municipal Corporation, relevant contents of which is as follows;

"...... In inviting reference to the above, the undersigned has been directed to inform him that during medical test conducted on 04.12.2012 he had been found 100% blind by the Medical Officer of KMC. As there is no scope to utilize him meaningfully with such extent of blindness in the KMC and as such there is no provision to provide employment to any candidate with full blindness to the post of Junior Assistant in the KMC, his offer of appointment under reference stands cancelled as per order of the Authority...."

Learned Advocate appearing for the respondents, Kolkata Municipal Corporation submits that petitioner had applied in Scheduled Caste (SC) Category and not under any Handicapped category. Examination and interview was held by the Municipal Service Commission not by the Kolkata Municipal Corporation and in good faith without further verification, it issued the appointment letter to the empanelled candidates including the petitioner and only on Medical Test conducted on 04.12.2013 petitioner was found 100% blind by the Medical Officer of Kolkata Municipal Corporation. Learned Advocate for the respondent Kolkata Municipal Corporation contends that the job of the Junior Assistants is of such a nature that it cannot be performed by 100% blind persons. An employer cannot be forced to employ a person whose medical unfitness is of such a nature that his service cannot be utilized at all by the employer. He further contends that since in this case the examination and interview was held by the Municipal Service Commission and petitioner never disclosed about his total blindness either to the Municipal Service Commission or to the respondent Kolkata Municipal Corporation and the respondent Corporation in good faith without verification but subject to examination of the physical fitness of the petitioner by the Medical Officer of the Corporation issued the aforesaid appointment letter. The subsequent development during pendency of the Writ Petition cancelling his appointment by disclosing the reason has not been challenged by the petitioner by way of fresh Writ Petition till date nor has it filed affidavit-in-reply to the affidavit-in-opposition filed by the respondent Kolkata Municipal Corporation disclosing the aforesaid document dated 08th March, 2013. The Kolkata Municipal Corporation has also intimated this Order of cancellation of the appointment of the petitioner and the reason for cancellation to the Municipal Service Commission as appears at Page 26 & 27 of the affidavit-in-opposition. On perusal of the Writ Petition I found that the petitioner claiming for the post of Junior Assistant has not signed in the Writ Petition and affidavit and he has put his Left Thumb Impression (LTI) and has been identified by his wife and this aspect cannot be ignored in view of the nature of job to be performed by the petitioner who is 100% blind.

Learned Advocate appearing for the petitioner has tried to make out a new case at the time of hearing of this petition that his case should be considered under Reserved Physically Handicapped Quota which does not appear either in the grounds or the relief prayed for in the Writ Petition. In support of his contention he relies upon a decision in the case of Somak Das -vs- The State of West Bengal reported in (2005) 2 CAL LT 465 (HC).

In my view, the facts and issues involved in the case of Somak Das (supra) are distinguishable from the instant case. In the said case writ petitioner-appellant claimed to be belonging to General Category and also tick marked the entry under Physically Handicapped and he had already disclosed before the authority that he was physically handicapped and in that case petitioner had made out a case in the Writ Petition itself that there was no reservation provided in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and had challenged the advertisement which is not the case of the petitioner herein.

Considering the submission of the parties and facts and circumstances of the case and discussion made above Writ Petition is dismissed. However petitioner is free to challenge the aforesaid order of cancellation of his appointment passed after filing of the Writ Petition if so advised.

W.P. No. 5571 (w) of 2013 is dismissed.

No order as to cost.

Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.