IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.13962 of 2009 and M.P.Nos.1 and 2 of 2009 K.Meenal ..Petitioner Vs 1.Appointing Authority, DDMS, Headquarters, ATNK & K Area, Island Grounds, Chennai 600 009. 2.The Commanding Officer, Military Hospital, St.Thomas Mount, Chennai – 600 016. 3.The Chairman, The Central Government Employees Standing Medical Board, Government Kasturba Gandhi Hospital for Women and Children, Chennai – 600 005. ..Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, call for the entire records pertaining to order dated 05.05.2004 (Termination Order) passed by the 1st respondent herein in 450/K/Meenal/Civ Est. and quash the same and further direct the petitioner to re-induct in the post of Ward Sahayika with all emoluments and arrears of salary and other eligible benefits to the petitioner which the petitioner is entitled to ever since the date of termination i.e. 05.05.2004. For Petitioner : Mr.C.Umashankar For Respondents : Mr.G.Jeganathan, CGSC https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner has come forward to challenge the order dated 05.05.2004 passed by the first respondent, wherein and by which her services were terminated on the ground that the Medical Board in its examination on 18.09.2003 was of the opinion that her eyesight is unfit for any job. 2. In the writ petition, notice of motion was ordered on 22.07.2009. Subsequently, after the formation of the Armed Forces Tribunal, the matter was transferred to the Tribunal. But however,the Tribunal has sent back the matter to this Court stating that it is not a matter covered by the provisions of Armed Forces Tribunal Act. However, without going into the controversies raised, this Court decided to hear the matter and directed the counsel for the respondents to file a counter. 3. Accordingly, Mr.G.Jehanathan, learned Central Government Standing Counsel filed a counter affidavit dated 20.10.2009. 4. The facts leading to the termination of the petitioner are as follows: The petitioner was selected for appointment to the post of Ward Sahayika in the Military Hospital by an order dated 18.07.2001. She was asked to produce a medical certificate as a pre-condition. The petitioner produced a medical certificate dated 19.07.2001 stating that she does not suffer from any weakness, infirmity for discharging the duties of a Ward Sahayika. Subsequently, an appointment order dated 14.08.2001 was given to the petitioner. It was prescribed that she will be on probation for a period of two years from the date of appointment. After joining duty, she applied for leave from 06.09.2002 to 15.09.2002. Thereafter, she applied for extraordinary leave on medical certificate with effect from 16.09.2002 to 28.02.2003 as she was suffering from TB Meningitis. Even after the expiry of the leave, she did not join duty and remained absent till 31.05.2003. She reported for duty on 01.06.2003 without any fitness certificate and it was also observed that she was partially blind and was unable to perform her duties. 5. The petitioner was directed to appear before a Standing Medical Board at Government Kasturba Hospital for Women and Children, Chennai -5. The Medical Board found that she was unfit for any job. But however the petitioner was not satisfied and requested for another eye test by any other specialist. Though she was directed to produce a fitness certificate from any other authorised eye specialist, she could not do so. Therefore, her services were terminated on medical grounds with effect from 05.05.2004. https://hcservices.ecourts.gov.in/hcservices/ 6. The petitioner preferred a writ petition being W.P.No.7872 of 2007 before this Court. The prayer in the writ petition was to consider her representation dated 15.09.2006. This Court declined to entertain the writ petition wherein she sought for a second examination by a Medical Board. This Court gave liberty to the petitioner to challenge the order of termination. Hence, the present writ petition. 7. The petitioner contended that her termination was against the provisions of Persons with Disabilities (Equal Opportunities,Protection of Rights and Full Participation) Act, 1995 (for short Disabilities Act) more particularly it was against Section 47 of the Act. The petitioner also contended that since the third respondent had denied the existence of a provision to render a second medical opinion, she herself got examined by M/s.Jothi Eye Hospital and got a certificate that she has capable of performing the duties attached to the post held by her. 8. In the counter affidavit filed by the respondents, there is no denial with reference to the application of the Disabilities Act. But it was contended that the petitioner with her present eyesight cannot perform the duties attached to the post of Ward Sahayika which includes assisting the Medical Officer, guiding patients, to accompany female patients for movement inside the hospital,washing injection vials and vessels, assisting the bed patients for changing the bed posture for prevention of bedsores with trolleys and stretchers, and receipt and distribution of food to patients. 9. Though there is no lack of bonafides in respondents 1 and 2 in holding that the petitioner is not fit to discharge the duties of Ward Sahayika, it has to be examined whether the petitioner is entitled to get relief in terms of Section 47 of Disabilities Act. Section 47 of the Disabilities Act reads as follows:- "47. Non-discrimination in Government employment:- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. https://hcservices.ecourts.gov.in/hcservices/ (2)No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." 10. The Central Government, having regard to the type of work carried on, has exempted all categories of post of combatant personnel of the Armed Forces from the provisions of Section 47, vide Government of India, Ministry of Social Justice and Empowerment, Notification No.16-27/2001-N 1.1 dated 28th March 2002. 11. But, the said exemption cannot be made applicable to the case of the petitioner who was not involved in any combatant duty as she hold a civilian post in the Armed Force. Therefore, the Act will apply in its full vigour to persons like the petitioner who are holding civil posts. The respondents have not kept in mind the statutory provision while discharging the petitioner from service on grounds of medical unfitness. Though in the present case, the respondents are of the opinion that she cannot discharge the duties of a Ward Sahayika she could be employed in some other alternative duty after giving appropriate pay protection. 12.In this context, it is necessary to refer to the judgment of the Supreme Court in Bhagwan Dass v. Punjab State Electricity Board reported in (2008) 1 SCC 579. The following passages found in paragraphs, 2 and 17 to 19 may be usefully extracted below: "2. This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, towards those unfortunate fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity Board were quite aware of the statutory rights of Appellant 1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous. 17. From the materials brought before the court by none other than the respondent Board it is manifest that notwithstanding the clear and definite legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man on the Board’s rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had himself asked for retirement from service and, therefore, he was not https://hcservices.ecourts.gov.in/hcservices/ entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated 17-7-1996. The letter was written when a charge-sheet was issued to him and in the letter he was trying to explain his absence from duty. In this letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for retirement. 18. Appellant 1 was a Class IV employee, a lineman. He completely lost his vision. He was not aware of any protection that the law afforded him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the officers concerned of the Board, to our mind, was deprecable. 19. We understand that the officers concerned were acting in what they believed to be the best interests of the Board. Still under the old mindset it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty- bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largesse but their right as equal citizens of the country." 13. In the light of the above, the writ petition will stand allowed. The impugned order stands set aside. No costs. Consequently, connected miscellaneous petitions are closed. https://hcservices.ecourts.gov.in/hcservices/ 14. The respondents are hereby directed to adhere to the provisions of the Disabilities Act 1995, more particularly Section 47 and act accordingly. The respondents are also directed to implement the order of this Court within a period of 8 weeks from the date of receipt of a copy of this order. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar svki To 1.The Appointing Authority, DDMS, Headquarters, ATNK & K Area, Island Grounds, Chennai 600 009. 2.The Commanding Officer, Military Hospital, St.Thomas Mount, Chennai – 600 016. 3.The Chairman, The Central Government Employees Standing Medical Board, Government Kasturba Gandhi Hospital for Women and Children, Chennai – 600 005. + 1 c.c. to Mr. G. Jehanathan, CGSC. S.R.No.40513. + 1 c.c. to Mr. Umashankar, Advocate. S.R.No.40260. W.P.No.13962 of 2009 GV (CO) GSK 15.06.2010. https://hcservices.ecourts.gov.in/hcservices/