IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 6347 of 2008. Decided on 25.3.2011 Mehar Singh ..…Petitioner. Versus State of Himachal Pradesh and another. …. Respondents. _____________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. J.P. Upadhya, Advocate. For the respondents : Mr. Adarsh Sharma, Advocate V.K. Sharma, Judge (Oral) The challenge herein in this petition is against office order dated 17.4.2001, Annexure-X, issued by respondent No.2, whereby the petitioner, who at the relevant time was in the employment of the respondent/Corporation as Conductor, was retired from service on medical grounds, in violation of Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short ‘PWD ‘Act’). 2. Some undisputed facts may be noticed first. The petitioner was appointed as Conductor in the respondent/Corporation on 7.8.1986. However, unfortunately later on, he suffered a paralytic attack and vide Disability 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Certificate dated 6.5.2000, Annexure-B, he was declared unfit for the job of Conductor, though fit for less laborious duty. 3. Against the above backdrop, the respondent/Corporation instead of putting the petitioner on less laborious duty straightway proposed to retire him from service on medical grounds in violation of the provisions of Section 47 of The PWD, Act, which lays down as under : “ 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. (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.” 3 4. Being aggrieved the petitioner moved the erstwhile H.P. State Administrative Tribunal by way of Original Application (OA) No.292 of 2001, which was disposed of vide order dated 7.3.2001, passed by the said Tribunal with a direction to the respondents to dispose of the pending representation submitted by the petitioner against his proposed retirement, within six weeks from the date of order. However, it appears that even despite that the petitioner was retired from service vide office order dated 17.4.2001 Annexure-X. Consequently, he again approached the Administrative Tribunal by way of the present OA which on abolition of the said Tribunal has been transferred to this Court and registered as CWP (T) No.6347 of 2008. 5. The action on the part of respondents apart from being manifestly in violation of Section 47 of the PWD, Act is also highly discriminatory in as much as that vide memo dated 21.3.2000, Annexure Z/1, captioned as “ To consider absorption of Conductors/Drivers incapable of discharging their assigned duties in HRTC”, which also includes the name of the petitioner at Sr. No.46, many other similarly situate Conductors were recommended for light jobs such as Store Keeper, Ledger Keeper and Booking Clerk etc, but the petitioner was retired on medical grounds. 6. In view of the above, the impugned office order dated 17.4.2001 Annexure-X, cannot be sustained and is liable to be quashed. In order to arrive at this inference, I seek support from the law laid down by the Hon’ble Supreme Court in Kunal Singh vs. Union of India and another, 4 (2003) 4 Supreme Court Cases 524. Paras 12 and 13 of the judgment being relevant are extracted below : “12. 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. 13. For the reasons stated and discussions made above, the appeal deserves to be accepted. Hence the impugned order affirming the order of termination of services of the appellant is set aside and the appeal is allowed. We direct the respondents to give relief in terms of Section 47 of the Act.” 7. To the similar effect is the law laid down by the Hon’ble Apex Court in Bhagwan Dass & Anr. Vs. Punjab 5 State Electricity Board, 2008 LAB.I.C 769, wherein it has been held as under vide para 15 of the report : “ In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (appellant No.1) with effect from March 21, 1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from March 22, 1997 till date. If any balance remains, that should be adjusted in easy monthly installments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. He should be reinstated and all due payments, after adjustments as directed, should be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board.” 8. In LPA Nos. 6 and 45 of 2010, titled HRTC and another vs. Puran Dutt and Puran Dutt Vs. HRTC and another, decided by a common judgment dated 21.5.2010, a Division Bench of this Court has also taken a similar view. 6 9. In the result, the petition succeeds and is accordingly allowed. Consequently, the impugned office order dated 17.4.2001, Annexure-X, retiring the petitioner from the service of the respondent/Corporation as Conductor on medical grounds is held to be violative of Section 47 of the PWD Act and Articles 14 and 16 of the Constitution and is accordingly quashed. Resultantly, the petitioner would be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions etc. till the date of his retirement. The amount of terminal benefits paid to him shall be liable to be adjusted against the amount of salary from 18.4.2001 till date. The balance, if any, shall be adjusted in easy monthly installments from the future salary. The petitioner shall continue in service till the date of his retirement on attaining the age of superannuation according to the service records. It is directed that he shall be reinstated in service forthwith along with all consequential benefits subject to adjustment payable within three months from the date of presentation of copy of this judgment by the petitioner to the respondents/competent authority. 10. The petition stands disposed of, so also pending CMP (s), if any. (V.K. Sharma) Judge 25th March, 2011. cs