1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7920 OF 2009 1. The State of Maharashtra through ) Secretary, Home Department, Mantralaya, ) Mumbai. ) 2. Director General and Inspector General of ) Police, M.S., Mumbai having office at ) Shahid Bhagatsingh Marg, Colaba, ) Mumbai 400 039. ) 3. The Additional Director General of ) Police, tate Reserve Police Force, ) Mumbai havig office at Mumbai. ) 4. The Commandant, ) State Reserve Police Force, Group II, ) Ramtekadi, Pune 411 022 ).. Petitioners Versus Shri Surendra Tukaram Malge ) Aged adult, Occu: Government Service as ) Assistant Sub-Inspector, State Reserve Police ) Force in the office of the Commandant, ) SRPF Group No. II, Ramtekadi, Pune 411 022. )..Respondent Mr. A.H.Palekar, Panel Counsel for the petitioners. Mr. N.V.Bandiwadekar, & Mr. Bhushan A. Bandiwadekar, Advocates, for the respondent. 2 CORAM: F.I.REBELLO AND J.H.BHATIA, JJ. DATE : 19th November, 2009. ORAL JUDGMENT: (PER FERDINO I.REBELLO,J.) 1. Rule. Heard forthwith. 2. The petitioner is aggrieved by the order of the Tribunal dated 6.1.2009 whereby the learned Tribunal has allowed O.A. filed by the respondent. The respondent was working as A.S.I. In the S.R.P.F. at the time of his removal on account of being declared medically invalid with effect from 22.12.2006. He was aggrieved by his removal and approached the Tribunal placing reliance on the provisions of Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. (hereinafter referred to as “the Disabilities Act”). 3. According to the petitioner, as part of his duties, he was deployed in Naxalite area of Village Nargonda, Dist. Gadchirol on 25.3.1998. There was exchange of fire between Naxalites on one hand and police personnel of SRPF to which the petitioner was belonging. There was an explosion of the dumper in which the petitioner and 9 others were sitting. All of them were thrown out of the 3 dumper and all of them sustained injuries. Thereafter, his health deteriorated. He was admitted to Sassoon Hospital, Pune, on 5.12.2006. The petitioner was declared as completely and permanently incapacitated for further duties. 4. It is the case of the State that disability was not occasioned out of the employment or because of the petitioner was on duty but because the disabilities were acquired subsequently and in these circumstances, the petitioner was invalidated on account of medical unfitness. The Tribunal in these circumstances, ought to have considered that Section 47 of the Disability Act would not apply to such a case. 5. On the other hand, on behalf of the respondent, the learned Counsel contends that the Disability Act protects a person who incurs disability during his employment. Disability need not be out of employment or to have any casual connection with the employment. The learned Counsel placed reliance on the Judgment of this Court in Devki Nandan (DR.) vs. Union of India and Ors. 2005 (1) Mh.L.J. 382. 6. Section 47 reads as under :- 4 “47. Non-discrimination in Government employments – (1) No establishment shall dispense with, or reduce in rank, an employee who acquired 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.” A perusal thereof will show that establishments which are covered by the Act cannot dispense with or reduce in rank, an employee who acquires disability during his service. Thus, the disability has no connection with the employment. The proviso thereof provides, as to what has to be done on an employee acquiring disability. After considering the various provisions, in Devki Nandan (Dr.) and considering the Judgment of the Supreme Court in Kunal Singh vs. Union of India & another AIR 2003 SC 1623, this Court took the view 5 that it is not open to an employer to remove such a person but a supernumerary post will have to be created and he will have to be kept on that post till such time he is able to work on a suitable post commensurate with the disability. However, if no such posts are available, then till he attains the age of superannuation. 7. It is not doubt true that this is contrary to the provisions for removal of a person on medical unfitness in terms of the Service Rules governing continuation in employment. We have to bear in mind that those Rules are an exercise in subordinate legislatin where the Disabilities Act being primary legislation and as such the subordinate legislation must give way to the primary legislation. In our opinion, considering the law as settled, no case made out to interfere with the order passed by the learned Tribunal. 8. In the light of that, the Petition is dismissed. Rule discharged. There shall be no order as to costs. (J.H.BHATIA,J.) (F.I.REBELLO,J.)