Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. CWP No. 8307 of 2010. Date of Decision : 15.07. 2011. Devi Singh-II …..Petitioner. Versus H.R.T.C. and others. …..Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the petitioner: Mr. K. D. Sood, Advocate. For the respondents: Mr. Adarsh Sharma, Advocate. Surinder Singh, J. (Oral): By means of the present writ petition, the petitioner claimed mainly the following reliefs:- “a. Quash the order Annexure P-1; b. Direct the respondents to grant the petitioner pay and allowances and other monetary benefits for the period from 01.05.2000 to 31.01.2003 and further retiral benefits of enhanced pension etc. within a time bound period; and c. Direct the payment of interest at the rate of 12 percent annum on the monetary benefits which will accrue to the petitioner as a result of the quashing of the order Annexure P-1 from the date when the same fell due;” 2. Heard learned counsel for the parties and have examined the record. 3. Admittedly, the petitioner was appointed on 24.10.1979 as Driver on daily wages in respondent- - 2 - Corporation. Thereafter, he was regularized w.e.f. 01.07.1980 and was confirmed as such on 28.05.1985. The petitioner was medically examined by the Medical Board at the behest of respondent No.3-Regional Manager. The petitioner was suffering from Cervical Spondylitis and was declared not fit for the job of Driver. But, was opined to be fit for less laborious character job. Thus, an option was obtained from him vide letter dated 09.12.1998. He opted for the job of Daftri vide Annexure P-7, but vide office order dated 15.10.1998, he was posted as Chowkidar at Bus-Stand, Mandi in place of one Sh. Jai Pal, Conductor and performed the duties as such. 4. Vide office order No.HRTC.MD-Mandal/1-32/2000 (E)/- 737 dated 01.05.2000, he was retired on medical grounds. The office order aforesaid reads as under:- “HIMACHAL ROAD TRANSPORT CORPORATION MANDI DIVISION. MANDI. NO.HRTC.MD-Mandal/1-32/2000(E)/-737 Dated 01.05.2000. “OFFICE ORDER” Consequent upon having been declared completely and permanently in-capacitated for further service as driver in HRTC by the Medical Board, Zonal Hospital, Mandi, Shri Devi Singh-II driver is hereby retired from service of Himachal Road Transport Corporation with immediate effect on medical grounds under the provision of Rule-38 of CCS (Pension) Rules, 1972. DIVISIONAL MANAGER” - 3 - 5. The petitioner felt aggrieved by the office order aforesaid and thus filed Original Application in the erstwhile Tribunal. On the abolition of the Tribunal it was transferred to this Court and was registered as CWP(T) No.7140 of 2008. Though the petitioner was not present yet considering the arguments of the learned counsel for the respondent, the above office order of his retirement was quashed by its judgment delivered on 02.08.2010 in the following terms:- “Petitioner has been compulsorily retired after declaring him completely and permanently in-capacitated for further service as Driver as per office order dated 1st May, 2000. However, at the time of issuance of this office order, the respondents have not taken into consideration the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, protection of Rights and Full Participation) Act, 1995 and the law laid down by the Hon’ble Supreme Court in Kunal Singh Versus Union of India land another [(2003) 4 Supreme Court Cases 524]. 2. Consequently, the petition is allowed. Annexure PA, dated 01.05.2000 is quashed and set aside. The respondents are directed to consider the case of the petitioner in view of the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full participation) Act, 1995 and the law laid down in Kunal Singh’s case (supra) within a period of eight weeks from today. It is made clear that in case the petitioner is found suitable, he shall be entitled to all the monetary benefits. No costs.” - 4 - 6. Pursuant to the above judgment, the respondent- Corporation re-considered the matter of the petitioner for light duties which was declined and not considered for the alternative job on the ground that the petitioner had already retired on 31.01.2003 which fact was not disclosed by him before the Court and also stated that the petitioner remained out of job for two years and nine months, therefore, he is not entitled for the relief sought. 7. As a matter of fact on the day when the matter was listed for hearing on 02.08.2010 before the Court in CWP (T) No.7140 of 2008, the petitioner was not present but however, the counsel for the respondent-HRTC was present, it was his duty to inform the Court. For the fault of respondent the petitioner can not be blamed. Further, in view of the judgment passed by the Hon’ble Single Judge in CWP(T) No.7140 of 2008, there remains no scope to the respondent-Corporation for not considering the petitioner for light duty for the remaining period of his service in view of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which has been considered and interpreted by the apex Court in Kunal Singh v. Union of India and - 5 - another [(2003) 4 SCC 524] which was relied upon by the Court in CWP(T) No.7140 of 2008 above. 8. The provisions of Section 47 of the aforesaid Act which are reproduced below, admits to no other interpretation, but for as conveyed by it in simple and unambiguous words 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 it 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.” - 6 - 9. From the facts it appears that when the respondent - Corporation had offered him the post of Chowkidar, scope of the aforesaid Section might have been considered and option was sought, further he was posted against a post of Chowkidar having lighter duties and served with the respondent-Corporation satisfactorily. Thus, there was no occasion for the respondent- Corporation to retire him on medical grounds but when once the office order aforesaid for his retirement was issued, there was no question of performing the duties of Chowkidar by him. Therefore, Annexure P-1 whereby the petitioner was declined to be considered for lighter job for not disclosing that he had already retired is wrong and illegal and thus quashed and set-aside. 10. The respondents are hereby directed to grant the pay and allowances and other monetary benefits to the petitioner with effect from 01.05.2000 to 31.01.2003 alongwith all the retiral benefits and since he stands retired from the service, accordingly, his pension shall be fixed on the basis of the salary last drawn. 11. The respondent-Corporation is further directed to finalize the case of the petitioner and to make payments of his pay and other allowance plus the retiral benefits within a - 7 - period of four months, failing which it shall carry an interest @ 9% per annum from the date it fell due. 12. The petition stands disposed of in the above terms. CMP No.12462/2010 In view of the disposal of the main writ petition, this application also stands disposed of. 15th July, 2011. (Surinder Singh), k.sharma Judge.