WP(C) 5576/2010 BEFORE THE HON’BLE MR. JUSTICE IA ANSARI JUDGEMENT AND ORDER { O R A L } A number of writ petitions have preceeded this writ petition, made under Article 226 of the Constitution of India, which seeks issuance of appropriate w rit(s) setting aside and quashing the decision, dated 25.08.2010, passed by the respondent No.1, namely, Assam Public Service Commission (in short, ’the Commiss ion’) and commanding the Commission to recall, rescind and/or, otherwise, debar from giving effect to the decision, dated 25.05.2010, aforementioned. 2. In order to correctly appreciate the issues, which are material for dete rmination in this writ petition, some of the facts, including some orders, passe d, from time to time, by this Court, need to be pointed out. 3. An advertisement was published by the Commission, on 10.08.2006, invitin g intending candidates to appear for preliminary examination of the Combined Com petitive Examination, 2006, for screening of candidates for the main examination for recruitment to various posts including Assam Civil Service (Junior Grade). This advertisement, while making provisions for reservation in favour of Schedul ed Castes, Scheduled Tribes (Plains), Scheduled Tribe (Hills) and Other backward classes/More Other Backward Community, did not provide for any reservation for physically disabled persons under the provisions of Persons with Disabilities (E qual Opportunities, Protection of Rights and Full Participation) Act, 1995. 4. Following the publication of the said advertisement, PIL No.62/2006 was, amongst others, instituted seeking appropriate directions to be issued to the r espondents/authorities concerned to provide for reservation of posts in favour o f physically disabled persons under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Pu rsuant to an order, dated 13.03.2007, passed in PIL No.62/2006, a corrigendum/fr esh advertisement was issued by the Commission, on 05.06.2007, specially providi ng for reservation in favour of persons suffering from locomotor disability inas much as the corrigendum/fresh advertisement, dated 05.06.2007, mentioned that on e post, in the Assam Civil Service (Junior Grade), was reserved for persons suff ering from locomotor disability. This corrigendum/fresh advertisement also menti oned that candidates, who had already applied pursuant to the earlier advertisem ent, dated 10.08.2006, but belong to the category of locomotor disability, need not apply again making it, however, clear that such physically handicapped candi dates would be required to produce necessary supporting documents in the office of the Commission or in the examination hall before commencement of the prelimin ary examination. 5. Thereafter, the preliminary examination was held as scheduled and result was published declaring the names of those persons, who had qualified to partic ipate in the main examination. The candidates, who were found eligible to sit in the main examination, were, however, required to submit another application in the prescribed format. Clause 11 of the said application mandated the candidates to mention whether the candidate suffers from locomotor disability or not and, if so, to give particulars thereof along with a certificate from the competent a uthority. 6. Respondent No.3 herein, while filing up the said prescribed form, mentio ned, agaisnt column 11, that he suffers from locomotor disability up to 50%. Res pondent No.3 qualified in the main examination and was called for interview. In terms of the call letter, dated 11.12.2008, issued to him, the respondent No. 3 herein appeared in the interview. This was followed by publication of result by the Commission on 15.06.2008. The name of the respondent No. 3 herein did not ap pear in the said select list, while the petitioner herein was shown, in the sele ct list, to have been selected for appointment to the Assam Civil Service (Junio r Grade) as a person suffering from locomotor disability. Subsequent thereto, by invoking the provisions of the Right to Information Act, 2005, respondent No.3 herein made an application to the Commission seeking details of the marks secure d not only by him, but also other physically handicapped candidates, who had bee n called for interview. The information, which were issued to respondent No.3 he rein by the Commission, disclosed that while respondent No.3 herein had received , in all, 817 marks, the petitioner herein had secured 695 marks. 7. In course of time, respondent No.3 herein came to this Court with a writ petition, made under Article 226 of the Constitution of India, challenging the selection of the present petitioner, who stood impleaded as respondent No. 6 the rein. This writ petition gave rise to WP(C) No.950/2010, wherein respondent No.3 herein had contended, inter alia, that apart from the fact that he had mentione d, against Clause 11 of the application, that he had been suffering from locomot or disability up to 50%, he had also submitted a certificate, dated 21.01.2004, issued by the District Medical Board, Dhubri, in support of his claim of being a person suffering from locomotor disability and that the said certificate was al so accompanied by requisite identity card issued, in this regard, by the Distric t Social Welfare Officer, Dhubri. 8. In the writ petition, respondent No.3 herein, also claimed that while ap pearing in the interview, pursuant to the call letter, dated 01.12.2008, he had produced necessary documents in support of his claim that he had been suffering from locomotor disability to the extent of 50%. In his writ petition, respondent No.3 further claimed that having received information that as a person sufferin g from locomotor disability, he had secured far more marks than the present peti tioner, he had made a representation to the Chairperson as well as the Secretary of the Commission raising objection as to how they had happen to select the pre sent petitioner, who had secured 695 marks only as against 817 marks, which he ( respondent No.3) had secured. In his said representation, respondent No.3 had cl early stated that he had been suffering from locomotor disability to the extent of 50% and in support of this claim, he had also enclosed, along with his repres entation, the relevant documents. This writ petition was resisted by the Commiss ion and also by the present petitioner, who was respondent No.6 in the said writ petition, namely, WP(C) No.950/2010. 9. While resisting the writ petition, the Commission contended that by virt ue of the corrigendum/second advertisement, dated 05.06.2007, it had become incu mbent, on the part of the writ petitioner (i.e., respondent No.3 herein), to sub mit proof of his claim that he had been suffering from locomotor disability, but no such material was enclosed by the petitioner that is respondent No. 3 herein . It was also contended, in the writ petition, by the Commission that though, at different stages, the petitioner, i.e., respondent No.3 herein, was required to submit necessary documents, as regards his physical disability, he (i.e., respo ndent No.3 herein) had not done so. This apart, by producing two Registers befor e this Court, the Commission attempted to show that in the Register, which was m eant for the candidates, who were physically handicapped, the name of the writ p etitioner (respondent No.3 herein) had not appeared; whereas the name of respond ent No.6 (i.e., the writ petitioner) had appeared and that in the other Register , which was meant for the candidates, who did not suffer from any physical disab ility, the petitioner’s name had appeared. The Commission, therefore, contended that a conscious decision had been taken, on 08.01.2010, by the Commission that as the petitioner (i.e., respondent No.3 herein), had not submitted his identity card along with his application for main examination, the Commission could not treat him as a person suffering from locomotor disability. 10. The present petitioner, while resisting the said writ petition (i.e., WP (C) No. 950/2010), as respondent No.6, contended that the petitioner therein (i. e., respondent No.3 herein), had not produced, before commencement of the prelim inary examination, requisite documents in support of his claim that he was a per son suffering from locomotor disability, though the corrigendum/second advertise ment required that the candidate, with locomotor disability, must produce suppor ting documents in the office of the Assam Public Service Commission or in the ex amination, particularly, before commencement of the examination and as the respo ndent No. 3 herein had not submitted the necessary document to support his plea that he was a person suffering from locomotor disability, he (i.e., respondent N o. 3 herein) was rightly treated as a candidate, who did not suffer from locomot or disability, and his name was, therefore, rightly not included in the Register showing him as a candidate suffering from locomotor disability. It was also poi nted out, by the present petitioner in the said writ petition, that the certific ate, issued by the District Social Welfare Officer, Dhubri, refers to appearance of the petitioner before the District Medical Board on 21.01.2004; whereas, the identity card was shown to have been issued to him on 18.02.2004. In such circu mstances, according to the respondent No.6 (i.e. the petitioner herein), the Com mission was wholly justified in treating the petitioner as a candidate, who did not suffer from any physical disabilities far less locomotor disability. 11. Having considered the respective cases of the parties concerned, this Co urt disposed of the writ petition by making observations, which read as under : 11. In the present case a perusal of the two registers containing the detail s of the candidates who had appeared in the main examination from Dhubri and Kam rup District, as placed before the Court, would clearly indicates that the Commi ssion had treated the candidatures of many candidates to be provisional on accou nt of the fact that requisite certificates of age or educational qualifications had not been submitted along with the application form. At least, three of such candidates i.e. Ashamayee Das (Roll No. 40806), Pranab Kumar Pegu (Roll No. 4406 2) and Biswajit Apegu (Roll No. 44133) whose candidatures were provisional has b een selected and included in the select list dated 15-06-2009. In the select lis t dated 5-2-2010, which has been impugned in the present case, out of the afores aid three candidates the name of Pranab Kumar Pegu (Roll No. 44062) is included. Such selection can only be understood on the basis that the said candidates had submitted their requisite certificates at a subsequent stage. The above facts w ould squarely demonstrate that the Public Service Commission itself had treated the certificates and testimonials mentioned in the advertisement dated 10-08-200 6 read with the corrigendum/second advertisement dated 05-06-2007 to be not mand atory and inflexible requirements. Rather, the actions of the Commission indicat e that it had proceeded on the basis that such certificates could be furnished s ubsequently. 12. In the above situation even if the Court is to proceed on the basis that the petitioner did not submit his identity card showing that he suffers from lo comotor disability to the extent of 50% at any time before the preliminary exami nation as required by the corrigendum/second advertisement dated 05-06-2007 and even if it is assumed that the petitioner had not enclosed the said identity car d along with his application for the main examinations there can be no escape fr om the conclusion that the identity card was submitted by the petitioner at leas t pursuant to the letter of the Deputy Secretary of the Commission dated 04-12-2 009. Coupled with the aforesaid fact, there is no denial on the part of the Publ ic Service Commission of the specific pleading of the petitioner that he had pro duced the identity card at the time of the interview on 11-12-2008 as required i n terms of the call letter dated 01-12-2008 issued to him. In such a situation i t is difficult to accept the stand taken by the Commission in its resolution dat ed 08-01-2010 that as the Commission had rejected all cases wherein essential do cuments were not furnished along with the applications within the time frame as per the advertisement the case of the petitioner should also be rejected. The af oresaid stand is belied by what has been recorded by the Court to be revealed by the registers in question which clearly indicate that the applications of candi dates who did not submit certificates in proof of age or educational qualificati ons were provisionally accepted and some of such candidates were actually select ed by the Commission. In the above situation, the Commission should have proceed ed to accept the identity card produced by the petitioner and on that basis ough t to have determined his entitlement to be selected or not. 13. The next question that has to be addressed by the Court is what relief s hould be provided to the petitioner in the facts and circumstances of the case. The final decision of the Commission in selecting the respondent No. 6 and in ex cluding the writ petitioner has been found to be legally infirm for not consider ing the identity card made available by the petitioner to the Commission. Object ions have been raised on behalf of the respondent No. 6 with regard to the accep tability of the identity card. In any case, whether a certificate (Identity Card in the present case) should be accepted as regards the claim of the person that he belongs to a particular category of candidates i.e. physically handicapped i n the present case, is for the Commission and not for the Court to decide. We ar e, consequently, of the view that the matter needs reconsideration by the Commis sion. We, therefore, allow the writ petition and direct the Commission to examin e the entitlement of the petitioner for selection as a candidate belonging to th e physically handicapped category on the basis of the identity card submitted by him to the Commission by his letter dated 10-12-2009 in response to the letter dated 04-12-2009 of the Deputy Secretary of the Commission. Naturally, until the said exercise is over appointment in the Assam Civil Service insofar as the pos t earmarked for a physically handicapped candidate is concerned will remain in a beyance and only after the Commission finalizes the matter, as directed, the app ointing authority will proceed to make appointment against the said post. 12. The Commission, then, took up the case of the respondent No. 3 herein as had been directed by order, dated 04.03.2010, passed in WP(C) No.950/2010 and, having examined the matter, rejected the case of the respondent No. 3 herein. Th e extract of the Commission’s resolution, dated 08.01.2010, reads as under : So, the Commission had finally resolved in its meeting dated 08-01-2010 that sh ri S Khan did not submit the identity Card along with his application which was vital to support his claim for Locomotor Disability. An extract of the resolutio n dated 8.1.2010 of the Commission read as : Earlier, the Commission had rejected the cases who did not furnish the essentia l documents with the applications within the time frame as per advertisement. Ba sed on the earlier decision, the Commission could not entertain the documents fu rnished after declaration of final results. & & & Therefore, the Commission resolved to stick to its earlier decision so f ar the Physically Handicapped (Locomotor Disability) case is concerned’. 13. The Commission, thus, took the view that the present petitioner was a pe rson suffering from locomotor disability and, in terms of the selection process, his selection was proper and the rejection of the case of the respondent No.3 h erein was proper. The relevant observations appearing, in this regard, in the Co mmission’s resolution read as under: PAGE 57 a to a The Commission felt it worthy to state that those who qualified in the C.C. (Ma in) Exam. were called for interview by issuing call letters, the format of which was same to all categories of candidates. Since the candidature of a candidate always remains under scrutiny through the entire selection process, all candidat es in fact, are allowed provisionally to appear in the interview subject to prod uction of all original certificates relevant to a candidate. A direction in the call letter for interview says ’you are provisionally allowed to appear in the said interview subject to production of the following original certificates on the date of interview: Age Certificate/ Caste Certificate/ Degree Certificate/Character Certificate/ PH )Locomotor Disability) certificate from proper authority’/ But contrary to the direction in the call letter, Shri S Khan neither hi mself produced the PH (Locomotor Disability) Certificate on the date of intervie w in support of his claim, nor he was queried about the PH (Locomotor Disability ) certificate on the date of interview, as in the absence of proper certificate he was treated as General candidate with no Locomotor Disability all through the selection process. Under the facts and circumstances stated above, the Commission regrets i ts inability to treat Shri Saifudaullah Khan as a Physically Handicapped (Locomo tor Disability) candidate to be considered against the Handicapped (Locomotor Di sability) candidate to be considered against the lone post of ACS reserved for c andidate with Locomotor Disability in the Combined Competitive Examination, 2006 of A.P.S.C. 14. Respondent No.3 herein, once again, came to this Court with a writ petit ion, made under Article 226 of the Constitution of India, challenging the decisi on of the Commission and its action in not treating the respondent No.3 as a per son suffering from locomotor disability. This writ petition gave rise to WP(C) N o.3382/2010. A Division Bench of this Court took the view that the Commission’s exercise was not in accordance with the purport and object with which the matter had been remanded to the Commission. Referring to its order, passed earlier, on 04.03.2010, in WP(C) No.950/2010, and the implications thereof, the Division Be nch observed and directed as under: 7. It would be significant to notice that a reading of the order dated 4.3. 2010 passed in WP(C) 950/2010 would indicate that the above directions of the Co urt, as contained in para 13 of the order dated 4.3.2010, were issued on the bas is that the petitioner had for the first time submitted the identity card along with his letter dated 10.12.2009. In other words, notwithstanding the delayed su bmission of the said identity card, a legal duty was cast on the Public Service Commission to consider the case of the petitioner after taking into account the fact & & & & & & & & 4.3.2010 passed in WP(C) 950/2010, we are told, has not been cted to any appeal and, therefore, the said order continues to remain in force. 8. On reading para 13 of the order dated 4.3.2010 extracted above it would be crystal clear that so long the order dated 4.3.2010 reamins on record the Pub lic Service Commission is under a legal obligation to examine the petitioner’s e ntitlement for selection by taking into account his identity card. The question raised by the petitioner in the present proceeding is that the Commission has no t fulfilled its legal obligation to act in terms of the order dated 4.3.2010 pas sed in WP(C) 950/2010. In this regard, an order of the Commission dated 31.5.201 0 once again rejecting the case of the petitioner has been specifically assailed in this writ petition. 9. The issues arising in the case having been identified in the manner indi cated above, the Court had called for the original minutes of the meeting of the Commission held on 21.5.2010 on the basis of which the impugned order dated 31. 5.2010 has been passed. We have read the minutes of the meeting of the Commissio n held on 21.5.2010 as made available to us. Such reading has disclosed that aft er an elaborate recital of the detailed facts of the case, the Public Service Co mmission by the said resolution had resolved not to consider the case of the pet itioner for selection for appointment against the solitary post earmarked for ph ysically handicapped candidates on the ground that the identity card which was r equired to be submitted by the petitioner at different stages, i.e. at the stage of the preliminary examination; along with the application for the main examina tion and at the time of interview was not so submitted by the petitioner. 10. If the above is the basis of the decision of the Commission arrived at i n the meeting held on 21.5.2010 as communicated to the petitioner on 31.5.2010, there can be little debate that the said decision has not been arrived at in the light of the directions contained in para 13 of the order dated 4.3.2010 passed in WP(C) 950/2010. While the Public Service Commission was required to identity card, the petitioner has been found to be disentitled without any consideration of the identity card on the ground that the said identity card cannot be consid ered as it was submitted belatedly. The question of belated submission of the id entity card having been already answered by the Court and directions having been issued to take into account the same, the Public Service Commission could not h ave acted in the manner it has done in the present case. 11. For the aforesaid reasons, we set aside the resolution dated 21-05-2010 of the Commission as well as the communication dated 31.5.2010 and direct that t he Public Service Commission will now examine the entitlement of the petitioner by taking into account the identity card produced by him. For the purpose of cla rification, we deem it appropriate to add that while considering the case of the petitioner the acceptability veracity or otherwise of the contents of the ident ity card and the effect of the said contents, if found to be acceptable, would b e considered by the Commission. 12. As the matter is long delayed and the post in question is going vacant, we are of the view that the Public Service Commission should take a final decisi on in the matter within two weeks from today. 15. Aggrieved by the order, dated 02.07.2010, passed in WP(C) No.3382/2010, whereby the Division Bench has remanded the matter, once again, to the Commissio n, the present petitioner filed an application seeking Special Leave to Appeal, wherein an order was passed, on 15.07.2010, by the Supreme Court. The order, bei ng relevant, is reproduced below: Delay condoned. Issue notice on the Special Leave Petition. Since learned counsel has appeared o n behalf of the respondent No. 1 on caveat, service of notice on the said respon dent is waived. Let the other respondents be served in the usual course and also by way of dasti service. The respondents will be entitled to file their counter affidavits within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereof. Liberty is given to the parties to mention the matter as and when the pl eadings are complete. We also make it clear that whatever actions that may be taken during the pendency of these proceedings shall abide by the final result of the Special Le ave Petition. 16. However, in the meanwhile, the Commission, in terms of the directions, w hich have been issued by the Division Bench, in WP(C) No. 3382/2010, took up the matter and, having considered, once again, the case of the respondent No.3 here in determined him as a person suffering from locomotor disability and on the gro und that he had secured 817 marks, which was highest amongst all the physically handicapped candidates, found him fit for being appointed against the lone post earmarked in the cadre of the ACS (Junior Grade). The Commission’s relevant reso lution, dated 25.08.2010, reads as under: In pursuance of the order dated 2.7.2010 of the Hon’ble Gauhati High Court in W P(C) No. 3382/2010, the Commission perused and discussed in detail the report re ceived on 19.8.2010 from the District Social Welfare