CIVIL WRIT PETITION NO.8261 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 30, 2009 Tara Singh .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. P. K. Sachdev, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner is working on the post of Mali, for which he has been regularised on 9.3.1994. Earlier the petitioner was working on daily wages since 1983. Though the petitioner had maintained a blotless record of service, but he was compulsorily retired on 28.5.2007. Copy of the retirement order is annexed with the petition as Annexure P-2. This retirement is ordered under the provisions of Rule 5.11 of Punjab Civil Services Rules, Volume II, which regulates the grant of invalid pension to a Government employee who bodily or CIVIL WRIT PETITION NO.8261 OF 2008 :{ 2 }: on account of mental infirmity is permanently incapacitated for public service or for a particular branch of it, to which he belongs. Thus, the petitioner has been retired from the service on medical ground. He has accordingly challenged this order on the ground that the same is illegal, unlawful and unjust in view of the provisions contained in Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 (for short, “the Act”). Section 47 of the Act provides that no establishment shall dispense with or reduce in rank any employee, who acquires disability during his service. There is a proviso under this Section which says that if an employee after acquiring disability is not suitable for a post he was holding, then he could be shifted to some post with the same pay scale and service benefits. There is yet another proviso which says that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until suitable post is available or he attains the age of superannuation, whichever is earlier. As per Section 47, no promotion can be denied to a person merely on the ground of his disability. The petitioner had suffered a physical handicapped with 100% disability due to a head injury which he suffered. This injury left a weakness on left upper and left lower limb, multiple seizures bowel, bladder incontinence low intelligence and impaired vision. The Certificate issued in regard to disability of the petitioner by PGI, Chandigarh and Rohtak are on record as Annexure P-3. The petitioner would accordingly urge that his retirement prematurely on medical ground due to disability which he has suffered during the course of his employment is wrong, illegal and unconstitutional CIVIL WRIT PETITION NO.8261 OF 2008 :{ 3 }: besides being unjust and against the provisions of statute. The respondents would deny the claim made in the petition and would further urge that disability of the petitioner is not covered by the definition of `disability' as defined in Section 2(i) of the Act. It is then stated that PGIMS, Rohtak, declared the petitioner unfit for the post of Mali and he was accordingly retired from service on medical ground. It is stated that the medical opinion with regard to nature of injuries and fitness for job has to prevail being the expert opinion. It is then pointed out that the petitioner is not able to move and stated to be lying on the bed in an unconscious state of mind and as such, he was not able to perform duties relating to light or alternative jobs. The plea further is that the services of the petitioner have not been dispensed with strictly within the meaning of Sub- Section (1) of Section 47 of the Act. Similar issue arose before this Court in Civil Writ Petition No.12623 of 2009 (Suresh Chander Vs. State of Haryana and others), decided on 25.9.2009. There also, the State, by referring to the opinion of Medical Board, had maintained that the petitioner therein was completely incapacitated and, thus, unfit for the service. In that case also, the respondents had contended that invalid pension can be awarded to a Government employee, who is permanently incapacitated for public service because of body or mental infirmity. The applicability of the provisions of Section 47 of the Act were also disputed in the said writ petition. Even it was urged that the said provisions are not mandatory and are obligatory. This stand of the respondents was termed as unfair. The submission that provisions of Section 47 of the Act are obligatory and not mandatory CIVIL WRIT PETITION NO.8261 OF 2008 :{ 4 }: was also negated. It was further observed that if this stand of the respondents was accepted, it would make the provisions of the Act useless and this legislation a piece of redundant legislation as such. Reference was made to the aims and objects of the Act and proclamation on “full participation and equality of people with disabilities in Asia and Pacific Region”, to which India is a signatory. It was noticed that the pleas were being made by the State ignoring the aims, objects and purpose of this Act. Since the respondents have not raised any challenge in regard to the nature of the provisions of Section 47 of the Act, this aspect need not be touched in this case any further. It has, thus, to be taken that Section 47 of the Act is a mandatory provision. There can not be scope of any different view being taken in this regard. A mention to the law laid down by the Hon'ble Supreme Court in Kunal Singh Vs. Union of India and another, 2003 SCC (L&S) 482, would suffice:- “Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.” CIVIL WRIT PETITION NO.8261 OF 2008 :{ 5 }: It is further held in this case that the protection mandatorily available under Section 47 can not be denied on the ground that the person has been granted invalid pension under Rule 38 of the CCS (Pension) Rules. It has also been held that the Act being a special legislation dealing with persons with disabilities, doctrine of generalia specialibus non derogant would apply and hence, Rules 38 of CCS (Pension) Rules can not over-ride Section 47 of the Act. The observations of the Hon'ble Supreme Court in this regard are as under:- “We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pension Rules. The Act is a special legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further, Section 72 of the Act also supports the case of the appellant, which reads:- 72.Act to be in addition to and not in derogation of any other law:- The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefit of persons with disabilities.” CIVIL WRIT PETITION NO.8261 OF 2008 :{ 6 }: 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.” In Suresh Chander (supra), this Court has viewed that Section 47 talks of disability and not a person with disability and such person acquiring disability during service is sought to be protected. In the background of law as discussed above, it is now to be seen how the person who has suffered a disability, which has rendered him unfit for employment is to be dealt with. Section 47 would provide a complete answer. This Section makes a provision for non discrimination in Government employment. It provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. This Section, in my view, has taken care of the situation like the one is before this Court by way of proviso, it is provided that if an employee, after acquiring CIVIL WRIT PETITION NO.8261 OF 2008 :{ 7 }: disability is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits. The next proviso further says and would take care of the situation directly appearing in the present case. This proviso says 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. The service to which the petitioner belongs is not exempted from the operation of the Act. The petitioner, as such, could always be adjusted by creating a supernumerary post till the time he attains the age of superannuation. The petitioner has concededly suffered a disability during service. He may not be in a position to work but the manner in which he has been treated would certainly lead to violation of the provisiones and the spirit of Section 47 of the Act. Merely because there are Rules under which the petitioner can be granted pension would not be a ground to deny protection mandatorily available to the petitioner under the provisions of this Act. The action of the respondents, thus, in not taking into account the provisions of the Act, is certainly not sustainable. A direction, therefore, is issued to the respondents to consider the case of the petitioner in the light of the provisions of the Act and grant him benefits available under the Act, especially under the provisions of Section 47 of the Act. As a consequence, the petitioner would have to be reinstated in service and released his entire salary due to him. The respondents would be at liberty to adjust the amount paid to the petitioner as a pension or pensionary benefits. To adjust the petitioner, the respondents would be at liberty CIVIL WRIT PETITION NO.8261 OF 2008 :{ 8 }: to treated him on a supernumerary post. Let the necessary action be completed within a period of two months from the date of receipt of copy of this order. The writ petition is allowed in the above terms. October 30, 2009 ( RANJIT SINGH ) khurmi JUDGE