IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.90 of 2011 Sudarshan Kumar Kashyap, son of Sri Ramendra Prasad Singh alias Makhan Singh, resident of village Khetalpura, P.S. Sare, District Nalanda…………………………………………………………………..Petitioner Versus 1. The State Of Bihar. 2. The Principal Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna. 3. The Principal Secretary, Co-operative Department, Government of Bihar, Patna. 4. The Bihar Public Service Commission through its Secretary, Baily Road, Patna. 5. The Civil Surgeon-cum-Medical Officer, Nalanda at Biharsharif 6. Hira Lal Nag (Roll No.304240) name of father not known to the petitioner through Bihar Public Service Commission, Baily Road, Patna…………………………………………………………..Respondents ----------- 3 22.02.2011 Heard learned counsel for the petitioner as well as learned counsel for the respondents. Petitioner has filed this writ application for a direction to the respondents for his appointment on the post of Assistant Registrar, Co-operative Societies, in terms of the final result as contained in Annexure-1. He has further prayed for quashing of the newspaper notice dated 01.12.2010, as contained in Annexure-4, by which he was informed that his candidature under disabled category has been cancelled and 2 he has been treated as general category candidate. Learned counsel for the petitioner submits that as the right thumb of the petitioner was amputated, he applied for his appointment as Assistant Registrar, Co-operative Societies under the quota for disabled candidates. In his application he had mentioned his disability as 40% and annexed a certificate of a Medical Board in proof of his disability. Bihar Public Service Commission (hereinafter referred to as ‘the Commission’) considered him as a candidate of disabled category and recommended his name to the Government for his appointment under the quota. Accordingly, his final result was published showing him as disabled category candidate. However, while he was waiting for his appointment letter, he was shocked to find a newspaper notice issued by the Commission from which it transpired that his candidature as disabled category candidate has been cancelled and he has been placed in the 3 general category. Learned counsel for the petitioner submits that once candidature of the petitioner has been accepted as disabled category candidate, the respondents could not change the same and could not deny him appointment as such. Mr. Lalit Kishore, learned senior counsel, appears for the Commission. He submits that on the basis of application of the petitioner, his name was placed under disabled category candidate and was recommended as such. But later on, at the time of verification of the certificates, it was found in the Department that the certificate enclosed with the application of the petitioner showed him only 30% disabled. Accordingly, petitioner having less than 40% disability was not eligible to be considered under that category. Therefore, the Department sent a communication to the Commission to rectify the mistake and make fresh recommendation in respect of the petitioner as general category candidate which was done and necessary corrigendum was published in the newspaper vide 4 Annexure-4. Petitioner has produced the medical certificate of the Medical Board as Annexure-5. The same shows that his disability was assessed as 30%. Learned counsel for the petitioner also accepts that any disability less then 40% disentitles any candidate from being considered under the disability quota. However, he refers to photo copy of Ist Schedule of the Employees State Insurance Act, 1948 (as amended), annexed as Annexure-6 with the writ application, to submit that loss of thumb and its metacarpal bone is to be assessed as 40 % disability. On that basis, he submits that the Medical Board has wrongly assessed petitioner’s disability as 30%. First of all, looking to the said Schedule Annexure-6, this Court finds that percentage mentioned in the Schedule in respect of different types of disability is in respect of percentage of loss of earning capacity and percentage of disability. This makes it clear that percentage mentioned in the Schedule is 5 entirely in context different context and the same has no relevance at all for the purpose of assessing percentage of disability for the purpose of appointment. Secondly, this is an admitted position that petitioner has not challenged the said report of the Medical Board which assessed him as 30% disabled. Even in this writ application petitioner has not challenged the same. In the circumstances, this Court cannot find fault with the respondents in disqualifying the petitioner from the category of disabled candidate and treating him as a general category candidate. The natural consequence is that the petitioner cannot claim any appointment on the post in question on the basis of being a disabled category candidate. Learned counsel for the petitioner has also raised a question of violation of Principles of Natural Justice. The facts being admitted and not under challenge, this Court does not find that any prejudice has been caused to the 6 petitioner by not issuing a show cause to him before cancelling his candidature. This Court, therefore, does not find any merit in the writ application and the same is, accordingly, dismissed. BT (J. N. Singh, J.)