Regular Second Appeal No. 3268 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3268 of 2008 Date of Order: 20.10.2008 State of Haryana and others ...Appellants Versus Dhir Singh ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Lokesh Sinhal, Addl. A.G.Haryana, for the appellants. RAJIVE BHALLA, J (Oral). The State of Haryana challenges the judgment and decree passed by the Additional District Judge-I, Jind, dated 22.07.2008 accepting the appeal filed by the respondent and reversing the judgment and decree passed by the Additional Civil Judge, Jind, dated 27.03.2006. The plaintiff-respondent, who was working as a driver with Haryana Roadways, Jind was pre-maturely retired from service on 08.07.1995 on medical grounds. Pursuant to directions issued in C.W.P.No.1733 of 1995 and upon a reconsideration of the matter, the respondent was posted as a Security Guard in the pay scale of Rs.2550- 3200 plus usual allowances on 23.03.1999, with effect from 09.07.1995. The plaintiff-respondent filed a suit by placing reliance upon Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and asserted that he had to be granted the same pay scale and service benefits as were paid to him as a driver. The appellants on the other hand opposed this prayer by asserting that as the respondent had accepted his employment as a Security Guard, his claim Regular Second Appeal No. 3268 of 2008 -2- based upon the provisions of Section 47 was not tenable. The trial Court dismissed the suit by holding that the notification dated 27.06.2005 exempts the post of driver and conductor from the operation of Section 47 of the Act. The respondent's claim, therefore, could not be accepted. The first appellate Court, however, accepted the appeal filed by the respondent and decreed his suit by holding that the notification did not apply to the respondent. Reliance was also placed upon a judgment of this Court rendered in CWP NO.15447 of 2004 titled as Rupender Singh v. State of Haryana. Counsel for the appellants submits that the proviso to Sub section 2 of Section 47, empowers the State Government to exempt any establishment from the provisons of Section 47. In exercise of these powers, the State of Haryana has issued a notification No. G.S.R/Const./Art.309/2004, dated 27.06.2005 exempting the posts of drivers and conductors in the Haryana Roadways from the provisions of Section 47. It is, therefore, submitted that the first appellate Court, committed an error of law in discarding this notification and granting relief to the respondent. I have heard counsel for the appellant and have perused the impugned judgments as also the provisions of Section 47 of the Act and the notification dated 27.06.2005. Section 47 of the Act reads as follows:- 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 Regular Second Appeal No. 3268 of 2008 -3- 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 avaiilable 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.” The proviso to Sub-section 2 of Section 47, empowers the State Government to exempt any establishment from the provisions of Section 47. The State of Haryana has in accordance with the above proviso issued a notification dated 27.06.2005 exempting the posts of drivers and conductors in the Haryana Roadways from the provisions of the said section. The notification came into effect on 27.06.2005. The respondent was posted as a Security Guard pursuant to an order dated 12.04.2001 with effect from 09.07.1995. The notification exempting the posts of drivers and conductors, from the operation of Section 47 of the Act issued on 27.06.2005 is prospective in operation and would, therefore, not apply to the respondent. I find no reason to interfere with the judgment of the first appellate court. The first appellate court, therefore, rightly reversed the judgment of the trial court and dismissed the suit. Regular Second Appeal No. 3268 of 2008 -4- In view of what has been stated hereinabove, as the impugned judgment does not suffer from any error of jurisdiction or of law, as no question of law much less a substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. October 20, 2008 (RAJIVE BHALLA) nt JUDGE