# Smt. Anusuiya Sharma v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 1300
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-20
- **Case number:** Writ -A No. 2941 of 2020
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anusuiya-sharma-v-state-of-u-p-ors-51797
- **Pages:** 13

## Headnote

A. Service Law - Persons with Disabilities
(Equal Opportunities, Protection of Rights
and
Full
Participation)
Act,
1995
-
Cancellation
of
Special
BTC
Training
Certificate
-
Charge
of
using
fake
disability certificate was leveled - The
petitioner met with a serious accident -
After examination by the Medical Board in
2006, CMO issued the Disability Certificate
declaring the petitioner 50% disable -
Petitioner was re-examined in 2018 after
litigation U.P.to the SU.P.reme Court, in
4 All. Smt. Anusuiya Sharma Vs. State of U.P. & Ors.
1301
which she was found 20% physical
disability
-
Petitioner's
disability
certificate dated 20.07.2006 was never
declared to be a forged and fabricated
document - Effect - Held, medical board
which
examined
the
petitioner
on
14.11.2018 did not consider the earlier
disability certificate dated 20.07.2006 and
no finding has been recorded that the
disability certificate dated 20.07.2006 is
not a genuine certificate or at the time of
issuance of disability certificate dated
20.07.2006, petitioner was not properly
examined by the medical board - There
cannot be any occasion to punish the
petitioner even if there has been any error
on the part of medical board while issuing
disability certificate dated 20.07.2006.
(Para 31, 34, 35, 36 and 37)

Writ petition allowed. (E-1)

## Text

_Characters 0–39,593 of 44,087. This is a partial read: ask again with offset=39593 for what follows._

1300 INDIAN LAW REPORTS ALLAHABAD SERIES
article of charge, then before it records its
own findings on such charge, it must record
its tentative reasons for such disagreement
and give to the delinquent officer an
opportunity to represent before it records
its findings. The report of the enquiry
officer containing its findings will have to
be conveyed and the delinquent officer will
have an opportunity to persuade the
disciplinary
authority
to
accept
the
favourable conclusion of the enquiry
officer. The principles of natural justice, as
we have already observed, require the
authority which has to take a final decision
and can impose a penalty, to give an
opportunity to the officer charged of
misconduct to file a representation before
the disciplinary authority records its
findings on the charges framed against the
officer."
The aforesaid point of law has been
reaffirmed by the Apex Court in State Bank
of India & Ors. vs. Mohammad Badruddin
(2019) 16 SCC 69.

7. In the facts of the present case,
we are inclined to concur with the view
taken by the learned Single Judge that in
fact reasons of disagreement were not
disclosed to the delinquent employee by the
disciplinary authority. In such view of the
matter, the delinquent employee was denied
opportunity to effectively put up his
defense in respect of charge nos.1,2 and 3.
So far as charge no.4 is concerned, the only
allegation found proved against the writ
petitioner was that he had belatedly
deposited the government money. The
disciplinary authority had already imposed
a minor punishment by the order under
challenge, inasmuch as adverse entry was
awarded to the employee concerned. It
transpires that major punishment has been
imposed upon the writ petitioner primarily
on account of his implication in other
charges which were impermissible, in view
of the discussions held above.

8. In such circumstances, the view
taken by the learned Single Judge to quash
the major punishment of reversion of basic
pay scale requires no interference. We are
also cognizant of the fact that the writ
petitioner had otherwise superannuated. In
that view of the matter, we are of the view
that no interference in the present appeal is
required which, consequently, fails and is,
accordingly, dismissed.
----------
(2024) 4 ILRA 1300
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.03.2024

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ -A No. 2941 of 2020
With
Writ -A No. 8011 of 2020

Smt. Anusuiya Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bheem Singh

Counsel for the Respondents:
C.S.C., Sri Sanjay Kumar Srivastava, Sri Suresh
Kumar Maurya

A. Service Law - Persons with Disabilities
(Equal Opportunities, Protection of Rights
and
Full
Participation)
Act,
1995
-
Cancellation
of
Special
BTC
Training
Certificate
-
Charge
of
using
fake
disability certificate was leveled - The
petitioner met with a serious accident -
After examination by the Medical Board in
2006, CMO issued the Disability Certificate
declaring the petitioner 50% disable -
Petitioner was re-examined in 2018 after
litigation U.P.to the SU.P.reme Court, in
4 All. Smt. Anusuiya Sharma Vs. State of U.P. & Ors.
1301
which she was found 20% physical
disability
-
Petitioner's
disability
certificate dated 20.07.2006 was never
declared to be a forged and fabricated
document - Effect - Held, medical board
which
examined
the
petitioner
on
14.11.2018 did not consider the earlier
disability certificate dated 20.07.2006 and
no finding has been recorded that the
disability certificate dated 20.07.2006 is
not a genuine certificate or at the time of
issuance of disability certificate dated
20.07.2006, petitioner was not properly
examined by the medical board - There
cannot be any occasion to punish the
petitioner even if there has been any error
on the part of medical board while issuing
disability certificate dated 20.07.2006.
(Para 31, 34, 35, 36 and 37)

Writ petition allowed. (E-1)

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard learned counsel appearing
for the petitioner, learned Standing Counsel
appearing
for
the
State
respondents
including the Examination Regulatory
Authority, U.P., Prayagraj and Sri Suresh
Kumar Maurya, learned counsel appearing
for the District Basic Education Officer,
Firozabad.

2. Since both the writ petitions are
inter-connected and decision of Writ-A No.
8011 of 2020 is dependent on the decision
of Writ-A No. 2941 of 2020, therefore they
have been connected together and are being
decided by the common judgement.

3. Petitioner through Writ-A No.
2941 of 2020 has challenged the orders
dated 31.10.2019 and 22.01.2020 whereby
petitioner's
Special
B.T.C.
Training
Certificate has been cancelled. Petitioner
through Writ-A No. 8011 of 2020 has
challenged the order dated 13.03.2020
passed by the District Basic Education
Officer, Firozabad whereby petitioner's
appointment has been declared to be voidab-initio.

FACTS OF THE CASE:

4. Facts of the case, in brief, are
that petitioner having requisite educational
qualifications, applied for admission in
Special B.T.C. Training, 2007 under
physically
disabled
(general
women)
category.
Petitoner
along
with
her
application,
annexed
the
disability
certificate dated 20.07.2006 issued by the
Chief Medical Officer, Firozabad whereby
it was certified that petitioner suffers with
50% partial permanent disability.

5. Petitioner completed her Special
B.T.C. Training from District Institute for
Education and Training (hereinafter to be
referred as "DIET"), Harchandpur Kalan,
District Etah and was issued Special B.T.C.
Training Certificate by the Respondent No.
3 i.e. Examination Regulatory Authority,
U.P., Prayagraj. On the strength of the said
Special
B.T.C.
Training
Certificate,
petitioner was duly appointed on the post of
Assistant Teacher in Primary School
Chirawali, District Etah/Kashiram Nagar
vide appointment order dated 3.7.2009.
Petitioner submitted her joining on the
aforesaid post on 6.07.2009 and started
getting salary from the State Exchequer.
Subsequently petitioner was transferred
from District Etah to District Firozabad and
was posted as Assistant Teacher in Primary
School Nagla Sonth, Block Narkhi, District
Firozabad.

6.

It
appears
that
certain
complaints were made to the State
Government
wherein
allegation
was
levelled that certain candidates have
obtained
appointment
by
using
fake
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
disability
certificates
therefore,
State
Government issued a Government Order on
10.11.2009 whereby direction was given
for constituting fresh medical board and to
verify disability of the candidates. The
Director, State Council for Educational
Research and Training (hereinafter referred
to as "SCERT"), U.P., Lucknow also issued
a letter addressed to all the Principals of
DIET whereby direction was given for
verification of the disability of the
candidates who passed out the Special
B.T.C. course, through fresh medical board.

7. The Government Order dated
10.11.2009 and the order dated 15.07.2010
were challenged by filing Civil Misc. Writ
Petition No. 53152 of 2010 (Ravindra
Kumar Sharma and Others Vs. State of
U.P. and Others) but learned Single Judge
of this Court dismissed the writ petition
vide
order
dated
31.08.2010.
The
judgement and order dated 31.08.2010 was
challenged in Special Appeal No. 811 of
2010 and the Division Bench of this Court
disposed of the Special Appeal with a
direction that firstly respondents will verify
the genuineness of the disability certificate
of the candidates and once it is found that
the certificate is fake, only then they will be
subjected to disability test by the fresh
medical board. The judgement and order
dated 9.09.2010 passed in Special Appeal
No. 811 of 2010 was challenged by the
State of U.P. through S.L.P. (C) No. 8880
of 2011 (State of U.P. and Others Vs.
Ravindra Kumar Sharma and Others).
The
Hon'ble
Supreme
Court
vide
judgement and order dated 03.02.2016 setaside the aforesaid judgement and order
dated 9.09.2010 passed by the Division
Bench of this Court in Special Appeal No.
811 of 2010 and further provided that
before taking any action against the
inviduals, they shall be issued show cause
in the matter and thereafter decision will be
taken in accordance with law.

8. In compliance of the aforesaid
judgement
rendered
by
the
Hon'ble
Supreme
Court,
Principal,
DIET,
Harchandpur Kalan, Etah issued a show
cause notice on 24.05.2018 wherein it was
stated that petitioner has used a forged and
fabricated disability certificate to secure her
admission in the Special B.T.C. Training
Course, 2007 and therefore, cause may be
shown as to why Special B.T.C. Training
Certificate issued to the petitioner may not
be cancelled. Petitioner in response to the
show cause notice dated 24.05.2018
submitted
her
reply
wherein
she
categorically
stated
that
Disability
Certificate No. 1549 issued to the petitioner
by the Chief Medical Officer, Firozabad on
20.07.2006 is a genuine document and at
no point of time, it has been found that the
said certificate has not been issued by the
competent authority.

9. Principal, DIET, Harchandpur
Kalan, District Etah vide his notice dated
15.10.2018 required the petitioner to appear
before the medical board headed by the
Deputy Chief Medical Officer, Lucknow on
14.11.2018 and to get her disability
certified. Petitioner in compliance of the
notice dated 15.10.2018 appeared before
the medical board and the said medical
board issued certificate wehrein petitioner's
disability has been found to be 20%.

10. Principal, DIET, Harchandpur
Kalan, Etah again issued a show cause
notice to the petitioner on 27.02.2019
wherein he cited the disability certificate
dated 14.11.2018 issued by the fresh
medical board and thereby stated that under
the
Persons
with
Disabilities
(Equal
Opportunities, Protection of Rights and
4 All. Smt. Anusuiya Sharma Vs. State of U.P. & Ors.
1303
Full Participation) Act, 1995 (hereinafter to
be referred as "the Act of 1995"), 40%
disability is must for claiming the benefit of
reservation under the Physically Disabled
Category whereas her disability has been
found only 20% as such, it is apparent that
she has used forged and fabricated
disability certificate for securing her
admission in Special B.T.C. Training
Course, 2007 therefore, she may show
cause as to why her candidature for Special
B.T.C. Training Course, 2007 may not be
cancelled. Petitioner submitted her reply to
the aforesaid show cause notice on
12.03.2019 wherein she categorically stated
that the Disability Certificate No. 1549
issued to her by Chief Medical Officer,
Firozabad on 20.07.2006 is a genuine
document and at no point of time, it has
been found that the same is either forged or
fabricated. Petitioner in her reply further
submitted that she met with a serious
accident and thereby she became disabled.
She applied for disability certificate and
she was subjected to medical examination
by medical board and thereafter disability
certificate was issued by the Chief Medical
Officer, Firozabad whereby it was certified
that petitioner suffers from 50% partial
permanent disability. Petitioner in her reply
also categorically stated that she is in
continuous medical treatment with effect
from the date of her accident therefore,
merely because the fresh medical board
which was constituted after about 12 years
has reported that petitoner is having only
20% disability, it cannot be presumed that
the medical certificate dated 26.07.2006 is
a forged and fabricated document.

11. Though, show cause notice for
cancelling candidature of the petitioner of
the Special B.T.C. Training Course, 2007
was issued by the Principal, DIET,
Harchandpur Kalan, Etah, but all of a
sudden, Secretary Examination Regulatory
Authority, U.P., Allahabad has passed the
order dated 31.10.2019 wherein it is
mentioned that on the basis of information
related
with
non-certification
of
the
disability of certain candidates, on the
directions of Director, S.C.E.R.T., U.P.,
Lucknow, Result Committee in its meetings
held on 19.03.2019 and 21.10.2019 has
taken decision to cancel the certificates of
Special B.T.C. Training, 2007 issued to the
petitioner and other candidates.

12. Petitioner has challenged the
order dated 31.10.2019 passed by the
Secretary,
Examination
Regulatory
Authority, U.P., Prayagraj which recites
that Result Committee of the Examination
Regulatory Authority, U.P., Prayagraj in its
meetings
held
on
19.03.2019
and
21.10.2019 has taken decision to cancel the
Special B.T.C. Training Certificate issued
to the petitioner, by filing Writ-A No. 2941
of 2020.

13. On the strengh of the order
dated 31.10.2019 passed by the Secretary,
Examination Regulatory Authority, U.P.,
Prayagraj, the District Basic Education
Officer, Firozabad issued notices to the
petitioner on 3.02.2020, 13.02.2020 and
22.02.2020 whereby he directed petitioner
to appear before him on the date fixed and
to submit her reply along with evidence as
her Special B.T.C. Training Certificate has
been
cancelled
by
the
Secretary,
Examination Regulatory Authority, U.P.,
Prayagraj vide order dated 31.10.2019.
Petitioner in response to the aforesaid
notices,
submitted
application
on
15.02.2020 whereby she requested for
providing copies of the letters dated
31.10.2015 and 13.05.2016 and further she
filed an application on 28.02.2020 whereby
she submitted that the disability certificate
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
was duly issued by the Chief Medical
Officer, Firozabad.

14. The District Basic Education
Officer, Firozabad has passed order on
13.03.2020
whereby
petitioner's
appointment on the post of Assistant
Teacher has been declared to be void-abinitio only for the reason that her Special
B.T.C. Training Certificate has been
cancelled by the Secretary, Examination
Regulatory Authority, U.P., Prayagraj vide
order dated 31.10.2019.

15. Petitioner has challenged the
order dated 13.03.2020 passed by the
District Basic Education Officer, Firozabad
by filing Writ-A No. 8011 of 2020.

SUBMISSIONS ON BEHALF
OF PETITIONER:

16. Learned counsel appearing for
the petitioner has submitted that petitioner
suffered disability out of an accident. She
applied for disability certificate and was
subjected to thorough medical examination
by the medical board at district Firozabad
and accordingly she was issued Disability
Certificate No. 1549 on 20.07.2006 under
the signatures of the Chief Medical Officer,
Firozabad.

17. It is not the case of respondents
that the aforesaid disability certificate dated
20.07.2006 has not been issued by a
competent medical board and therefore,
any action against the petitioner treating the
said disability certificate to be a forged and
fabricated document, is unsustainable in the
eyes of law. It has further been submitted
on behalf of the petitioner that both the
medical boards i.e. medical board which
examined the petitioner at the time of
issuance of disability certificate dated
20.07.2006 which found her to be having
50% partial permanent disability and the
medical
board
which
examined
the
petitioner at the time of issuance of
disability certificate dated 14.11.2018 and
found her to be having 20% disability, have
examined the petitioner as per their
methods and standards of examination but
the fact remains that petitioner is a disabled
person and her Disability Certificate No.
1549 dated 20.07.2006 is a genuine
document. It has also been submitted that
there may be possibility of error in the
decisions taken by both the aforesaid
medical boards and for that, petitioner
cannot be held responsible that too after
about 14 years from the date of issuance of
disability certificate. There may also be
possibility that due to proper medical
treatment, the disability of the petitioner
may have been reduced from 50% to 20%
but by no stretch of imagination, it can be
said that the petitioner does not suffer from
physical disability and her Disability
Certificate dated 20.07.2006 is a forged and
fabricated document.

18. Learned counsel appearing for
the petitioner has contended that the
provisions of the Act of 1995 provides that
any person who suffers with 40% disability
will be termed as 'disabled person' and
shall be entitled for benefits of reservation
under the disabled category meaning
thereby that both the categories of persons
i.e. persons suffering with more than 40%
permanent disability and the persons
suffering with more than 40% disability are
entitled for benefit of reservation for
different purposes provided under the Act
of 1995, therefore the disability certificate
dated
20.07.2006
thereby
describing
petitioner to be 50% partially permanent
disabled, the percentage of disability may
have reduced due to medical treatment but
4 All. Smt. Anusuiya Sharma Vs. State of U.P. & Ors.
1305
by no stretch of imagination, it can be
inferred that petitioner has committed any
fraud or forgery therefore, petitioner cannot
be penalized for the errors in the decision
making
process
or
any
other
error
committed by the two medical boards
before whom petitioner has been subjected
to medical examination.

19. It has been argued by the
learned counsel appearing for the petitioner
that
the
Result
Committee
of
the
Examination Regulatory Authority, U.P.,
Prayagraj has not considered the aforesaid
issues at all and straightway has cancelled
the Special BT.C. Training Certificate
issued to the petitioner only on the ground
that since in the medical examination
conducted by the medical board on
14.11.2018, she has been found to be
having only 20% disability therefore, the
decision taken by the Result Committee,
communicated to the petitioner vide letter
dated
31.10.2019
by
the
Secretary,
Examination Regulatory Authority, U.P.,
Prayagraj, on its face, is erroneous.

20. Learned counsel appearing for
the petitioner has vehemently argued that
the authority which has cancelled the
Special B.T.C. Training Certificate issued
to the petitioner i.e. Result Committee of
the Examination Regulatory Authority,
U.P., Prayagraj, has not provided any
opportunity of hearing to the petitioner and
even has not issued any show-cause notice
to the petitioner before taking decision to
cancel the certificate, as such, decision of
the Result Committee communicated to the
petitioner vide letter dated 31.10.2019 by
the Secretary, Examination Regulatory
Authority, U.P., Prayagraj, on its face, is hit
by the violation of the principles of natural
justice. It has further been argued that had
the
Result
Committee
before
taking
decision to cancel petitioner's B.T.C.
Training certificate would have issued
notice to the petitioner or would have
afforded opportunity of hearing to the
petitioner then it may have been explained
to the Result Committee that it is not a case
of forgery or fabricating any document but
it is a case of different standards and
methods adopted by the two different
medical boards and it may be a case of
error in decision making process adopted
by the two different medical boards and
therefore,
petitioner
cannot
be
held
responsible and cannot be penalized.

21. Learned counsel appearing for
the petitioner has also invited attention of
this Court that in this case, a very unique
method has been adopted as the showcause notice was issued to the petitioner by
the Principal, DIET who has no authority to
cancel
the
Special
B.T.C.
Training
Certificate issued to the petitioner whereas
the
competent
authority
i.e.
Result
Committee of the Examination Regulatory
Authority, U.P., Prayagraj has not issued
any show cause notice and without taking
into
consideration
the
reply
of
the
petitioner, straightway has cancelled her
Special
B.T.C.
Training
Certificate
therefore, the decision taken in the matter,
stands vitiated due to non-observance of
the principles of natural justice.

22. Learned counsel appearing for
the petitioner has vehemently argued that it
is not the case of the respondents that
petitioner does not suffer from physical
disability but it is a case of variance in the
percentage
of
physical
disability
ascertained by two medical boards at a gap
of about 12 years therefore, the essence of
time is of paramount importance and it
cannot be ignored that there may be an
error in the decision making process
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
adopted by the medical boards and there
may also be possibility of improvement in
the percentage of physical disability of the
petitioner, as such, it is absolutely arbitrary
to cancel the Special B.T.C. Certificate
after about 13 years and thereby to declare
petitioner's appointment on the post of
Assistant Teacher void-ab-initio after about
11 years.

23. Learned counsel appearing for
the petitioner has also argued that petitioner
was a regularly appointed and a confirmed
Assistant Teacher working in a primary
school therefore, her appointment could not
have been cancelled without adopting due
procedure prescribed under law i.e. without
holding proper disciplinary inquiry as
contemplated under the rules but the
District Basic Education Officer has
straightway passed the order on 13.03.2020
whereby petitioner's appoitment has been
declared to be void-ab-initio on the basis of
the order dated 31.10.2019 issued by the
Secretary,
Examination
Regulatory
Authority, U.P., Prayagraj reciting therein
that the Special B.T.C. Training Certificate
issued to the petitioner, has been cancelled
by the Result Committee.

24. Learned counsel appearing for
the petitioner has thus concluded his
arguments by submitting that at no point of
time i.e. either at the time of cancellation of
petitioner's
Special
B.T.C.
Training
Certificate by the Result Committee of the
Examination Regulatory Authority, U.P.,
Prayagraj or at the time of passing of the
order by the District Basic Education
Officer, Firozabad declaring the petitioner's
appointment as void-ab-initio, petitoiner's
case that she has not committed any
forgery, has been considered in its true
perspective, accordingly, writ petitions filed
by the petitioner are liable to be allowed by
this Court.

SUBMISSIONS ON BEHALF
OF RESPONDENTS:

25. Per-contra, learned Standing
Counsel appearing for the Secretary,
Examination Regulatory Authority, U.P.,
Prayagraj has submitted that petitioner on
the basis of Disability Certificate No. 1549
issued by the Chief Medical Officer,
Firozabad on 20.07.2006 has obtained
admission in Special B.T.C. Training
Course, 2007 and was issued certificate on
completion of the said course but later on
when on 14.11.2018, she was subjected to
medical examination by the fresh medical
board, it was found that she is suffering
with only 20% physical disability whereas
in the certificate dated 20.07.2006, she has
been shown to be having 50% partial
permanent disability, accordingly, it is
menifest
that
the
certificate
dated
20.07.2006 is a forged and fabricated
document and as such petitioner's Special
B.T.C. Training Certificate has been
cancelled which is perfectly in accordance
with law. Learned Standing Counsel
appearing for the Examination Regulatory
Authority, U.P., Prayagraj has further
submitted that petitioner was issued show
cause notice by the Principal, DIET and
thereafter decision has been taken by the
Result Committee of the Examination
Regulatory Authority, U.P., Prayagraj and
the said decision was duly communicated
to
the
petitioner
vide
letter
dated
31.10.2019 by the Secretary, Examination
Regulatory Authority
therefore,
it
is
absolutely incorrect to say that decision has
been taken by the Result Committee
without following the principles of natural
justice.
4 All. Smt. Anusuiya Sharma Vs. State of U.P. & Ors.
1307
26. Learned Standing Counsel has
thus concluded his arguments and has
submitted that once it has been found that
petitioner is not suffering with minimum
40% physical disability required for
availing the benefit of reservation under
the disabled category, she is not entitled to
continue with the Special B.T.C. Training
Certificate and accordingly, same has been
cancelled, therefore, writ petitions filed by
the
petitioner,
being
absolutely
misconceived, are liable to be dismissed
by this Court.

27. Mr. S.K. Maurya, learned
counsel appearing for the District Basic
Education
Officer,
Firozabad
has
submitted
that
since
the
Secretary,
Examination Regulatory Authority, U.P.,
Prayagraj vide order dated 31.10.2019 has
cancelled the Special B.T.C. Training
Certificate issued
in favour of
the
petitioner therefore, the District Basic
Education
Officer,
Firozabad
issued
notices to the petitioner and thereafter has
passed order on 13.03.2020 whereby
petitioner's appointment has been declared
to be void-ab-initio on the ground that
since the basis of the appointment does not
exist anymore, the appointment of the
petitioner cannot sustain in the eyes of
law.

28. Sri S.K. Maurya has further
submitted that petitioner has been found to
have used forged and fabricated disability
certificate and, therefore the District Basic
Education Officer, while declaring the
petitioner's appointment void-ab-initio has
not committed any error under law. It has
thus been contended that the writ petitions
filed by the petitioner, are liable to be
dismissed by this Court.

FINDINGS:
29. I have considered the rival
arguments
advanced
by
the
learned
counsels appearing for the parties. For
adjudicating the issues involved in these
writ petitions, it is necessary to consider the
provisions of the Act of 1995 and the
Persons
with
Disabilities
(Equal
Opportunities, Protection of Rights and
Full Participation) Rules, 1996 (hereinafter
referred to as "the Rules of 1996").
Relevant provisions of the Act of 1995 and
Rules of 1996 are extracted as under :-

Section 2(t) of the Act of 1995:
(t) "Person with disability" means a
person suffering from not less than forty
per cent. of any disability as certified by a
medical authority;
Section 33 of the Act of 1995:
"33.
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) Bearing impairment;
(iii) Loco motor 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."
Section 39 of the Act of 1995:
"39. All Government educational
institutions
and
other
educational
institutions
receiving
aid
from
the
Government, shall reserve not less than
three per cent seat for persons with
disabilities."
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule 4 of the Rules of 1996:
"4. Authorities to give Disability
Certificate:- (1) A Disability Certificate
shall be issued by a Medical Board duly
constituted by the Central and the Stale
Government.
(2) The State Government may
constitute a Medical Board consisting of at
least three members out of which at least
one shall be a specialist in the particular
field
for
assessing
locomotor/Visual
including low vision/hearing and speech
disability, mental retardation and leprisy
cured, as the case may be."

Rule 5 of the Rules of 1996:

5. (1) The Medical Board shall,
after due examination, give a permanent
Disability Certificate in cases of such
permanent disabilities where there are no
chances of variation in the degree of
disability.
(2) The Medical Board shall
indicale the period of validity in the
certirtcate, in cases where there is any
chance of variation in the degree of
disability.
(3)
No
refusal
of
Disability
Certificate shall be made unless an
opporwnity is given to the applicant of
being heard.
(4) On representation by the
applicant, the Medical Board may review
its decision having regard to all the facts
and circumstances of the case and pass
such order in the matter as it thinks fit.

30. The aforesaid provisions of the
Act of 1995 clearly demonstrate that any
person who is suffering with 40% of any
disability certified by the medical authority
shall be the "person with disability".
Section 39 of the Act of 1995 provides that
all Government Educational Institutions
and other Educational Institutions receiving
aid from Government shall reserve not less
than 3% seats for persons with disability.
Section 33 of the Act of 1995 provides that
every
appropriate
Government
shall
appoint
in
every
establishment
such
percentage of vacancies not less than 3 %
for persons or class of persons with
disability. Rule 4 of the Rules of 1996
provides that disability certificates shall be
issued by a Medical Board duly constituted
by the Central and the State Government.
Rule 5(1) of the Rules of 1996 provides
that the Medical Board in the cases of
permanent disability where there are no
chance of variation in the degree of
disability
shall
issue
certificate
of
permanent disability. Rules 5(2) further
provides that Medical Board shall indicate
the period of validity in the certificate in
cases where there is any chance of variation
in the degree of disability. The aforesaid
provisions of the Act of 1995 read with
Rule 4, 5(1) and 5(2) of the Rules of 1996
make it crystal clear that if a person is
suffering with more than 40% disability
then he is entitled for the reservation
provided under the Act of 1995 irrespective
of the fact whether the disability is
permanent or the disability may be cured
over a period of time. Thus it is patently
manifest that there may be cases where the
person on the date of examination by the
Medical Board may be having more than
40% disability but over a period of time
due to proper medical treatment his
percentage of disability may improve.

31. The petitioner met with a
serious accident and on 20.07.2006, she
was examined by the duly constituted
medical board and thereafter Chief Medical
Officer,
Firozabad
issued
Disability
Certificate No. 1549 dated 20.07.2006. The
aforesaid medical certificate provided that
4 All. Smt. Anusuiya Sharma Vs. State of U.P. & Ors.
1309
petitioner
is
suffering
with
partial
permanent disability and percentage of
disability is 50 %. Petitioner, on the basis
of
the
disability
certificate
dated
20.07.2006, was given admission in the
Special B.T.C. Training Course, 2007
against the seat reserved for physically
disabled candidates. Petitioner completed
her training and she was issued Special
B.T.C. Training Certificate on 22.06.2009.
On the strength of the Special B.T.C.
Training Certificate dated 22.06.2009,
petitioner was appointed on the post of
Assistant Teacher in a Primary School on
03.07.2009
and
further,
petitioner
submitted her joining on the post of
Assistant Teacher on 06.07.2009.

32. This Court finds that petitioner
continued to discharge duties attached to
her post since 06.07.2009 till 13.03.2020
and continued to receive salary from the
State Exchequer.

33. It appears that the State
Government issued Government Order
dated 10.11.2009 whereby decision was
taken to ask the candidates appointed on
the posts of Assistant Teacher on the basis
of disability certificate to appear before the
medical
board
for
fresh
medical
examination
as
there
were
certain
complaints that various candidates have
secured appointment on the posts of
Assistant Teacher on the basis of forged
and fabricated disability certificates. The
Government Order dated 10.11.2009 was
challenged in Civil Misc. Writ Petition No.
5315 of 2010 but the said writ petition was
dismissed vide order dated 31.08.2010.
Thereafter the order dated 31.08.2010 was
challenged in Special Appeal No. 811 of
2010 which was disposed of vide order
dated 09.09.2010 with the observation that
the candidates shall be subjected to fresh
medical examination where the disability
certificates issued in their favour are found
to be forged and fabricated. The State
Government
challenged
order
dated
09.09.2010 passed in Special Appeal No.
811 of 2010 by filing Special Leave
Petition (C) 8880 of 2011 and Hon'ble
Supreme Court vide judgment and order
dated 03.02.2016 set aside the order passed
in Special Appeal but provided that before
taking action against any candidate, he/she
shall be issued show cause in the matter
and thereafter decision will be taken in
accordance with law.

34. After the aforesaid judgment
passed by the Hon'ble Supreme Court,
Principal,
DIET,
Harchandpur
Kalan,
District Etah vide notice dated 15.10.2018
directed the petitioner to appear before the
fresh medical board at Lucknow on
14.11.2018. The petitioner was examined
by the medical board on 14.11.2018 and
thereafter a report has been given that
petitioner is suffering with 20% physical
disability.

35. This Court finds that in the
report/medical certificate dated 14.11.2018,
there is no whisper about the disability
certificate issued to the petitioner on
20.07.2006 meaning thereby that medical
board which examined the petitioner on
14.11.2018 did not consider the earlier
disability certificate dated 20.07.2006 and
no finding has been recorded that the
disability certificate dated 20.07.2006 is not
a genuine certificate or at the time of
issuance of disability certificate dated
20.07.2006, petitioner was not properly
examined by the medical board. This Court
further finds that the proper course would
have been that the medical board while
examining the matter of the petitioner on
14.11.2018 must have expressed its opinion
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
on the earlier disability certificate dated
20.07.2006 as this possibility cannot be
overruled that after the issuance of
disability certificate on 20.07.2006 due to
proper medical treatment the percentage of
disability of the petitioner may have been
improved. It is also worth consideration
that the medical board which examined the
petitioner on 20.07.2006 was a duly
constituted medical board and it is not
denied that Disability Certificate No. 1549
dated 20.07.2006 has been issued to the
petitioner by the competent authority then
unless the subsequent medical board
records a finding that the disability
certificate dated 20.07.2006 either was not
a genuine document or was not issued after
thorough examination by the experts, there
was no occasion for the respondents to hold
the petitioner guilty of using forged and
fabricated disability certificate for securing
her appointment on the post of Assistant
Teacher. The disability certificate dated
20.07.2006 clearly provides that petitioner
was suffering from partial permanent
disability and the percentage of disability
was found to be 50% therefore, there is
every possibility that under a proper
medical
treatment
her
percentage
of
disability may have been improved to 20%
as such, merely because the percentage of
disability has changed in the period of 12
years, that itself does not hold that earlier
disability certificate dated 20.07.2006 is a
fake and forged document.

36. On the basis of subsequent
medical report/certificate dated 14.11.2018,
Principal,
DIET
Harchandpur
Kalan,
District Etah issued a show cause notice to
the petitioner on 27.02.2019 wherein it was
stated that in the medical examination held
on
14.11.2018,
petitioner's
physical
disability has been found less than 40%
therefore, why the Special B.T.C. training
certificate issued to the petitioner may not
be cancelled for the reason that petitioner
secured admission in the B.T.C. training
course on the basis of a forged and
fabricated
disability
certificate.
The
aforesaid show cause notice on its face was
absolutely
erroneous
as
petitioner's
disability certificate dated 20.07.2006 has
never been declared to be a forged and
fabricated document. Petitioner submitted
detailed reply on 12.03.2019 wherein it was
categorically stated that the disability
certificate dated 20.07.2006 has never been
declared to be forged and fabricated
document and therefore, notice is liable to
be cancelled. It appears from the record
that Principal, DIET, Harchandpur Kalan,
District Etah did not take any decision
pursuant to show cause notice dated
27.02.2019.

37. The Secretary, Examination
Regulatory Authority, U.P. Prayagraj vide
his letter dated 31.10.2019 directed the
Principal, DIET, District Etah to register
the cancellation of the Special B.T.C.
certificate of the petitioner in the register
maintained in the DIET on the ground that
Result Committee of the Examination
Regulatory Authority, U.P. Prayagraj has
taken decision to cancel the petitioner's
Special B.T.C. Training Certificate. This
Court
finds
that
neither
the
Result
Committee of the Examination Regulatory
Authority, U.P. Prayagraj nor the Secretary
Examination Regulatory Authority, U.P.
Prayagraj issued any show cause notice to
the petitioner nor petitioner's version has
been
considered
while
cancelling
petitioner's
Special
B.T.C.
Training
Certificate therefore, the decision of the
Result Committee taken in respect of the
petitioner and the order dated 31.10.2019
passed by the Secretary Examination
Regulatory
Authority,
U.P.
Prayagraj
4 All. Smt. Anusuiya Sharma Vs. State of U.P. & Ors.
1311
cannot sustain in the eyes of law for simple
reason of violation of principles of natural
justice. Even otherwise, this Court finds
that the petitioner's disability certificate
dated 20.07.2006 at no point of time has
ever been declared to be a forged and
fabricated document and further vide
disability certificate dated 20.07.2006,
petitioner was declared to be partially
permanent disabled and percentage of
disability was 50% and therefore this
possibility cannot be ruled out that over a
period of 12 years due to proper medical
treatment, petitioner's disability may have
been improved and as such, in the medical
examination report dated 14.11.2018, her
disability has been found to be 20%. Once
there is no finding that the disability
certificate dated 20.07.2006 was not a
genuine document or was not issued after
proper medical examination, there cannot
be any occasion to punish the petitioner
even if there has been any error on the part
of medical board while issuing disability
certificate dated 20.07.2006.

38. In view of the aforesaid
reasons, Writ-A No. 2941 of 2020 is
allowed. The decision of the Result
Committee regarding cancellation of the
Special B.T.C. Training Certificate of the
petitioner and the consequential order dated
31.10.2019
passed
by
the
Secretary,
Examination Regulatory Authority, U.P.
Prayagraj and order dated 22.01.2020
passed by the Principal, DIET Harchandpur
Kalan, District Etah are quashed.

39. The District Basic Education
Officer, Firozabad has passed order dated
13.03.2020
whereby
petitioner's
appointment on the post of Assistant
Teacher has been declared to be void-abinitio only on the ground that her Special
B.T.C. Training Certificate has been
cancelled vide order dated 31.10.2019
passed by the Secretary Examination
Regulatory Authority, U.P. Prayagraj and
order dated 22.01.2020 passed by the
Principal DIET district Etah.

40.