IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 9006 of 2008 Babu Raj Paswan, son of late Nandjee Paswan, resident of Village & P O - Chotki Nainijoor, P S - Nainijoor, Dist - Buxar - Petitioner Versus 1) The Union of India, Ministry of Home Affairs through its Secretary, New Delhi 2) The Secretary, Ministry of Home Affairs, Union of India, New Delhi 3) The Central Reserve Police Force, through Inspector General of Police, Bihar Sector, CRPF, Patna 4) The Director General of Police, CRPF, Lodhi Road, New Delhi 5) The Inspector General of Police, Bihar Sector, Patna 6) The Additional Deputy Inspector General of Police, Group Centre, CRPF Sindri, Dhanbad, Jharkhand 7) The Department Rehabilitation Board, Bihar Sector, CRPF, Patna through its Chairman - Respondents *** For the petitioner : M/s Chakrapani, Shashi Priya Pathak For the Union of India: Mr Sarvadeo Singh *** 2 14.07.2009 The petitioner was Constable general duty in the CRPF. He has been derostered and asked to proceed on invalidation pension having been visited with permanent physical disability. This has brought the petitioner to this Court. Learned counsel for the petitioner relies on the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the decision of Apex Court in that regard being the case of Kunal Singh -Versus- Union of India & Another (2003) 4 Supreme Court Cases 524 which dealt with service of Constable in Special Service Bureau who was similarly sought to be derostered on invalidation pension under the same very Rules as is being done in the case of petitioner. 2 Heard the parties. Counter affidavit has been filed. With consent of parties, the writ petition is being disposed of at the stage of admission itself. The relevant part of the finding of the Medical Board on basis of which the petitioner is being derostered and put on invalidation pension is quoted hereunder: “The board examined his case/documents in detail. The cause of disability is due to disease in both legs when he was posted in Srinagar (J&K) i e, extreme cold climate which developed gradually as normal disease and not directly related to the risk involved in performance of Government duty. As such, disability cannot be treated as in consequence of performance of bona fide Government duty. The percentage of disability is 63.7% and he has completed more than 10 years of service. The board, unanimously decided to allow him to proceed on invalidation pension with immediate effect after observing all due formalities. The Range DIG/GC concerned will ensure action as per instructions/provisions contained in Rule 38 of CCS (Pension) Rules 1972, CO 12/79, CO 12/96, SO 7/99, invalidation procedure in CRPF as per Chapter VIII of Medical Manual and existing instructions on the subject.” It would, thus, be seen that petitioner has been put on invalidation pension in terms of Rule 38 of CCS (Pension) Rules, 1972. Learned counsel for the petitioner relies on Section 47 of the said Act which is quoted hereunder : “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 : 3 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 ay 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. (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.” In my view, she rightly submits that a reference to sub-section (1) would show that no employee who acquires a disability during his service shall suffer because of his disability. The finding of the Medical Board is different. It appears that the Medical Board considers that it is only if disability has been caused as a consequence of performance of duty, things would have been different. In my view, that is not the case. The only thing required is during the service period the person acquires a physical disability. It is not necessary that disability must be caused as a consequence of the duty which was to be performed. In such a situation, a person acquiring disability in course of service would be covered by the Act. Secondly, the intention of the Legislature is clear when in the first proviso to sub-section (1) of Section 47, they have provided that even if a suitable post for such a disabled person is not available, he shall be retained in service on some other post in the same 4 pay scale and the same benefits. The second proviso makes it further clear that even if the employee cannot be suitably adjusted, he cannot be dismissed or retired but has to be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation. The Act gives no other option. The Act applies to CRPF. There is no dispute. If that be so then derostering the petitioner and putting him on invalidation pension is not correct. In my view, the entire situation has been fully dealt with by the apex Court in the case of Kunal Singh - Versus- Union of India and Another (supra). In that case also, the person was being put on invalidation pension under same Rule 38. I can do know better than quote paragraph-12 of the reports: “Merely because under Rule 38 of the CCS (Pension) Rules, 1972, the appellant got invalidity pension is no ground to deny the protection mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.” In view of the aforesaid, I have no option but to order in the manner in which the Apex Court has done. While setting aside the order putting the petitioner on invalidation pension, I hold that the 5 petitioner would be deemed in continuous service and would be entitled to all benefits in terms of Section 47 of the Act as was done by the Apex Court. The amounts paid to him as terminal benefits and other benefits would be subject to adjustments as may be appropriate in the facts. With the said observations and directions, the writ petition stands allowed. M.E.H./ (Navaniti Prasad Singh)