The duty of the administrative body to act judicially in considering the rights of persons with disabilities and the inclusive definition of disability under the Rights of Persons with Disabilities Act, 2016.

JUDGMENT

Moushumi Bhattacharya, J. - The petitioner served as Assistant Professor in Bengali in Kandi Raj College in Murshidabad for seven years from April, 2010 until April, 2017 before the petitioner was recommended by the West Bengal College Service Commission for appointment as Assistant Professor in Acharya Girish Chandra Bose College (formerly Bangabasi College of Commerce), Kolkata, in the 'PH' (Physically Handicapped) category. The petitioner is a physically impaired person (Bi-lateral upper limb amputee) with 80% disability.

2. The petitioner seeks a direction on the Governing Body, the President and the Principal of Acharya Girish Chandra Bose College to confirm and approve his appointment in the post of Assistant Professor in Bengali of the said College. The petitioner also seeks quashing of the decision of the Governing Body of the College taken in the meeting held on 10th June, 2017.

The case of the petitioner

3. The case of the petitioner, as sought to be made out by Mr. Subir Sanyal, learned senior counsel, is that the petitioner lived in Naihati, North 24 Parganas and was constrained to apply for a new position since the petitioner found it difficult to attend Kandi Raj College, Murshidabad which was at a distance of 480 kilometers, both ways, from Naihati. The petitioner was selected and recommended to Acharya Girish Chandra Bose College by the College Service Commission by a letter dated 27th April, 2017 for the post of Assistant Professor in Bengali in the PH (Physically Handicapped) category. The petitioner is seriously aggrieved by the resolution of the Governing Body taken on 10th June, 2017 by which the College Service Commission was requested to reconsider the recommendation of the petitioner for the reasons stated in the impugned decision. The petitioner was thereafter given provisional appointment as Assistant Professor in Bengali in the said College by a letter dated 30th August, 2017 issued by the Principal and Secretary of the Governing Body. The provisional appointment was on a particular scale of pay and the petitioner was informed that the petitioner would be on probation for one year from the date on which the petitioner joined the post. Counsel submits that the petitioner thereafter joined the post and successfully performed his duties as Assistant Professor in the same manner as the petitioner had done in Kandi Raj College, Murshidabad.

4. The petitioner in the meantime filed a writ petition being W.P. No. 29975 (W) of 2017 in this Court which was dismissed by a judgment of a learned Single Judge, as His Lordship then was, on 22nd June, 2020. While dismissing the writ petition for want of requisite pleading, the petitioner was given liberty to challenge the decision of the Governing Body dated 10th June, 2017. The present writ petition was filed pursuant to the said order.

5. Counsel submits that the petitioner comes within the definitions of The Right of Persons with Disabilities Act, 2016 as a person having permanent locomotor disability of 80%. Counsel further submits that the petitioner was appointed to the post in question against a vacancy reserved for the physically handicapped hence the petitioner has a right to be appointed to the said identified reserved post. Counsel places reliance on the 2016 Act which was enacted in place of the earlier Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Counsel submits that the impugned decision of the Governing Body culminated in the refusal of the College to issue the letter of appointment to the petitioner to the substantive post and is arbitrary, discriminatory and in violation of the 2016 Act.

The response of the College

6. Mr. Partha Sarathi Bhattacharyya, learned senior counsel appearing on behalf of the College, submits that the issue in the present writ petition has already been decided by the judgment of the learned Single Judge delivered on 22nd June, 2020 and is therefore barred by the pr