1 WP No.11527/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.11527 OF 2010 Ramkrishna s/o Daga Patil Age:43 Yrs., occu. Primary Teacher, R/o Chintamani Hsg. Society, Bhadgaon Road, Pachora, Tq.Pachora, Dist. Jalgaon. - PETITIONER VERSUS 1) The State of Maharashtra Through its Principal Secretary Department of Education, Mantralaya, Mumbai-32. 2) The Additional Divisional Commissioner, Nasik Division, Nasik. 3) The Chief Executive Officer, Zilla Parishad, Jalgaon. Tq. And Dist. Jalgaon. - RESPONDENTS ***** Mr.Bhagvan V.Thombre, Advocate for Petitioner; Mr.VH Dighe,AGP for Resp.Nos.1 & 2; Mr.NB Suryawanshi, Adv. for Resp.No.3. ----- CORAM : K.U.CHANDIWAL, J. DATE : 14th NOVEMBER, 2011. ORAL JUDGMENT: 1) Heard. Rule. Rule returnable forthwith by consent of parties. 2 WP No.11527/2010 2) The petitioner was appointed as a primary teacher in 1991 with Respondent no.3- Zilla Parishad Primary School, Karmad, Tq. Parola, District Jalgaon. The petitioner asserts, he has accidentally incurred disability due to hearing impairment. Accordingly, Disability Certificate was issued to him on 18.10.2007, showing disability to the extent of 40%, of which, an entry was effected in his service book. By subsequent examination, by another certificate dated 22.5.2008, the Medical Board issue the Disability Certificate and mentioned in clause 2 thereof, that the condition is progressive, likely to improve. Re-assessment of the case was recommended after a period of five years from 22.5.2008, entry of which, is recorded in the service book in December, 2008. 3) The petitioner was examined again by the Board on 9.4.2009 and the Board assessed the impairment capacity to 45% and it was recorded the petitioner to be eligible for benefits to such category. An entry of such Certificate dated 9.4.2009 is also recorded in the service book of the petitioner. 4) The grievance of the petitioner is, in spite of his Disability/Impairment Certificate to be on record, to the knowledge of the 3 WP No.11527/2010 authorities, however, his case was not considered by the Selection Committee. There were several posts available on 29.11.2007 when a meeting was held. In the said meeting, 34 physically impaired teachers were decided to be promoted. According to him, categorization carried by the authorities was illegal, when the Government Resolution dated 5th March, 2002 informs that for each of the categories, there should have been 1% reservation and consequently, the physically impaired persons/teachers should have been 11 to be considered for such promotion. On the other hand, the authorities have considered the case of as many as 28 persons from the category of orthopaedically handicapped. 5) The appeal of the petitioner was considered by the Additional Commissioner, Nasik Division, Nasik. He did not approve his contentions and confirmed the order of Chief Executive Officer, Zilla Parishad, Jalgaon. 6) Re-visiting the facts, it is explicitly indicative, if the dates are taken into consideration, that the initial Disability/Impairment Certificate dated 18.10.2007 had its effect for six months and in between there was another Certificate dated 22.5.2008, third was followed by 9th April, 2009. The Certificate date 22.5.2008, was progressive 4 WP No.11527/2010 for a period of five years to be reconsidered. If the entry in the Service Book of the petitioner is taken from December 2008, consequently, it was expected of the respondent to consider the case of the petitioner for promotion to the available post of physically impaired persons in his category effective from 22.5.2008. This exercise is not done by the respondents herein. 7) It is informed, and not disputed, there are certain posts available for promotional avenues. The case of the petitioner needs to be considered, treating his certificate dated 22.5.2008 to be in force and in that category the orders of promotion as per the seniority, needs to be issued in favour of the petitioner. 8) Rule is made absolute in the aforesaid terms. sd/- (K.U.CHANDIWAL) JUDGE bdv/