Civil Writ Petition No.12627 of 2009 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: September 15, 2011 Inderjeet Parkash ...Petitioner Versus Punjab & Haryana High Court, Chandigarh & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.J.K.Goel, Advocate, for the petitioner. Mr.Raman Mahajan, Advocate, for respondent Nos.1 & 2. Mr.Harish Rathee, Sr.DAG, Haryana, for the State. ***** RANJIT SINGH, J. The petitioner was working as a Reader in the Court of Additional District & Sessions Judge, Karnal. He claims to have worked to the entire satisfaction of his superiors. The petitioner was made to superannuate on completion of 58 years of age. He, however, claims that he was entitled to remain in service upto 60 years of age in accordance with instructions issued by State of Haryana. Reference is made to instructions dated 31.1.2006, Civil Writ Petition No.12627 of 2009 : 2 : whereby the retirement age of physically disabled employee possessing minimum degree of disability to the extent of 70% or above, was raised from 58 to 60 years. The disability was required to be checked by Medical Board constituted under the Chairmanship of CMO, who was to issue medical certificate for the said purpose. Subsequently, another letter was issued directing that the medical of such employees to check the extent of their disability shall be conducted at PGIMS, Rohtak. The petitioner suffered a handicap and was disabled more than 70%, which was certified by Civil Surgeon, Karnal. The petitioner accordingly submitted representation before respondent No.2 and prayed for grant of benefit under the instructions, referred to above. The petitioner also submitted his disability certificate. On 30.3.2009, the petitioner was directed to submit a fresh Medical Certificate issued by PGIMS, Rohtak. The petitioner accordingly appeared before the Medical Board at PGIMS, Rohtak on 22.5.2009. The petitioner was found to be suffering from 71% hearing disability in both the ears. The copy of the medical report was sent to respondent No.2 by the Medical Board. Still, respondent No.2 rejected the case of the petitioner on the ground that the handicap suffered by the petitioner was concerning his hearing and not of full body. It was also noticed that the petitioner was working as a Reader and due to the disability of hearing, the court work will suffer. The extension accordingly was denied to the petitioner. He, therefore, filed this writ petition before this court making a prayer for grant of extension and right to serve till completion of 60 years of age. The petitioner had been made to retire on completion of Civil Writ Petition No.12627 of 2009 : 3 : 58 years on 31.8.2009. He had approached this court before the date of his retirement. Notice was issued and the pleadings have been completed. The case was heard on 10.9.2010 and this court passed the following order:- “The petitioner concededly is suffering handicap of 71% as assessed by the Medical Board constituted by PGIMS, Rohtak. The petitioner was working as a Reader with the Additional District & Sessions Judge, Karnal. He had accordingly prayed for extension of his age from 58 years to 60 years in terms of the instructions issued by the Government of Haryana. The present writ petition has been filed only by impleading the High Court of Punjab and Haryana as respondents. State of Haryana has not been impleaded as a respondent party. Since the petitioner is an employee of State, it is appropriate to implead the State as a party. On an oral request made by counsel for the petitioner, State State of Haryana is impleaded as respondent No.3. Let amended memo of parties be placed on record. Notice to the newly added respondent No.3 for 13.10.2010. On the asking of the Court, Mr.Harish Rathee, Sr.DAG, Haryana, accepts notice on behalf of respondent No.3 and prays for time to have instructions. In the meantime, the counsel representing the High Civil Writ Petition No.12627 of 2009 : 4 : Court may have instructions whether the petitioner can be taken back into service as apparently he has been wrongly retire and was entitled to extension of his age upto 60 years, which would expire on 31.8.2011.” The counsel representing the High Court was required to have instructions if the petitioner can be taken back into service by observing that he apparently was wrongly retired and was entitled to extension of his age upto 60 years, which would expire on 31.8.2011. Mr.Mahajan appearing for the High Court, on instructions, had pointed out before the Court that no post was available against which the petitioner could be adjusted. The court had then observed that merely because the post was not available would not mean that right of somebody could be curtailed. Case was adjourned for Mr.Mahajran to obtain further instructions. The attention of the respondents was also drawn to the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short “the Act”), which apparently were attracted to the facts situation in this case. Subsequently, the case had to be adjourned for the counsel to obtain instructions from the District and Sessions Judge, the petitioner being employee of District & Sessions concerned. The request of the petitioner was again declined as was noticed in order dated 5.9.2011. The case was adjourned after directing the District and Sessions Judge to apply her mind and file necessary affidavit as to how extension is being denied to the petitioner in view of the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Civil Writ Petition No.12627 of 2009 : 5 : Today, Mr.Mahajan has handed over a copy of affidavit filed by District and Sessions Judge (respondent No.2), which is taken on record. It is now stated in the affidavit that the petitioner has already completed 60 years of age and as such there may not be need or requirement to take him back into service. Accordingly, the petitioner would be entitled to the service benefit of two years for which a supernumerary post would have to be created in this grade with proper sanction and with the stipulation that it would be terminated on the occurrence of the first substantive vacancy in that grade. Necessary averments are made in para No.6 of the affidavit, which are as under:- “Keeping in view the order dated 10.09.2010 passed by the Hon'ble High Court, it is submitted that petitioner has already completed the age of 60 years. Had he not completed the age of 60 years, he could well be taken back in service and in that eventuality somebody was to make way for him. Somebody has already got salary on his post, therefore, he can be taken back into service on a supernumerary post. As per administrative instructions appended to Note 2 of Rule 7.3 of Punjab Civil Services Rules Volume I, if no substantive post is vacant, an official can be accommodated against a supernumerary post which should be created in this grade with proper sanction and with the stipulation that it would be terminated on the occurrence of the first substantive vacancy in that grade. However, since, only service benefits are to be given to the petitioner, therefore, on Civil Writ Petition No.12627 of 2009 : 6 : the order of Hon'ble High Court, petitioner can be kept on supernumerary post for the purpose of giving him service benefits for the extension period with consequential pensionary benefits as well.” In view of the above position, the present writ petition is disposed of with a direction that the service benefits due to the petitioner be calculated for a period of two years from the date of his retirement to the date when he would have completed 60 years of age. A supernumerary post be created against which the petitioner's appointment can be shown. The State Government-respondent would take appropriate action in this regard. The pensionary benefits paid to the petitioner should be adjusted against the amount now becoming due and payable to the petitioner on account of his deemed reinstatement for a period of two years. No recovery need to be ordered and payment of pension be commenced after 31.8.2011. September 15, 2011 ( RANJIT SINGH ) ramesh JUDGE