IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.1060 OF 2010 IN CIVIL WRIT JURISDICTION CASE NO.8412 OF 2009 WITH INTERLOCUTORY APPLICATION NO.5745 OF 2010 WITH INTERLOCUTORY APPLICATION NO.7348 OF 2010 IN LETTERS PATENT APPEAL NO.1060 OF 2010. ============================================= THE UNION OF INDIA & ORS - Appellant (s) Versus EX L/NK SHANKAR PRASAD ARMY NO – Respondent. ============================================== Appearance : For the Appellant : Mr. Mithilesh Kumar Rai, Sr.C.G.C. For the Respondent : Mr. Fulman Singh, Advocate ============================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 5. 07.9.2010. Reg: I.A.No.5745 of 2010 Heard the learned Advocates. This application under section 5 of the Limitation Act is made by the appellant Union of India for condonation of delay of 213 days occurred in filing the Letters Patent Appeal. On the facts and in the circumstances of the case, the delay is condoned. Interlocutory Application stands disposed of. Reg : Letters Patent Appeal No.1060 of 2010. 2 This appeal preferred under Clause 10 of the Letters Patent is directed against the judgment and order dated 10th September 2009 passed by the learned Single Judge in C.W.J.C.No.8412 of 2009. The respondent writ petitioner joined the Indian Army on 28th July 1989. In the year 1991, he incurred disability while on leave. Consequently he was downgraded to Low Medical Category. Nevertheless, as a welfare measure, he was continued in service till he completed 15 years of service. He was relieved on the ground of Low Medical Category on 31st August 2004. Feeling aggrieved by his discharge from service, the writ petitioner-respondent no.4 approached the higher authority. Having failed before the higher authority, the writ petitioner filed above C.W.J.C.No.8412 of 2009. He took shelter under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as „the Act of 1995‟). He claimed that in view of the provisions contained in the Act of 1995, he had a right to continue in service till he reached the age of superannuation. The writ petition was contested by the respondent Union of India. 3 The learned Single Judge relied upon the provisions of the Act of 1995 and the judgments of the Hon‟ble Supreme Court in the matter of Kunal Singh Vs. Union of India reported in [(2003) 4 SCC 524] and in the matter of Bhagwan Dass & anr Vrs. Punjab State Electricity Board (2008 (3) All India Services Law Journal- 1), to quash the relieving order of the petitioner and to direct reinstatement in service in the following terms. “xxx As it has been found that relieving of the petitioner was not lawful it would be deemed that on reinstatement, petitioner be deemed to be in continued service for all purposes without break. The terminal benefit granted to the petitioner would be recovered from the amount payable to the petitioner in respect of past services which becomes due and payable now, and if anything is left thereafter, it shall be recovered in reasonable installments from his current salary.” Feeling aggrieved the Union of India has preferred the present appeal. Learned Advocate Mr. Mithilesh Kumar Rai has appeared for the Union of India. He has submitted that the proviso to section 33 and proviso to Section 47 of the Act of 1995 empower the appropriate government to exempt any establishment from the provisions of that section. He has submitted that in exercise of the power conferred by proviso to Section 33 of the Act of 1995, the Government of India has issued notification dated 28th 4 March 2002 to exempt all categories of combatant personnel of the Armed Forces from the provision of the said section. Similar notification is issued under Proviso to Section 47 of the Act of 1995. In view of the aforesaid notifications issued by the Government of India, the appropriate government having exempted the service of the combatant personnel of the Armed Forces from application of sections 33 and 47 of the Act of 1995, the writ petitioner did not have a right to continue in service in spite of the disability. It may be noted that though the appellant contested the writ petition, these notifications dated 28th March 2002 were not brought to the notice of the learned Single Judge. We have perused the above referred judgments of the Hon‟ble Supreme Court. In the matter of Kunal Singh, the appellant disabled was a constable in Special Service Bureau. He incurred injury and consequent disability in course of the discharge of duties. While examining the validity of his discharge from service on 20th November 1998 on the touchstone of Section 47 of the Act of 1995 the Hon‟ble Supreme Court observed; “Admittedly that Act applies to the establishment 5 of the respondents and is not exempted under Section 47 thereof.” In the matter of Bhagwan Dass & Another, the appellant disabled was the employee of the Punjab State Electricity Board. The Court held that the said appellant was entitled to the benefit under Section 47 of the Act of 1995. Obviously the establishment the Punjab State Electricity Board was not exempted from Section 47 of the Act. In the present case as recorded hereinabove the writ petitioner did not incur disability in course of service. The Armed Forces is exempted from Sections 33 and 47 of the Act of 1995 in respect of the categories of combanent personnel. Neither of the above referred judgments, therefore, shall have the applicability to the facts of the present case. As we have held that the post held by the writ petitioner had been exempted from application of sections 33 and 47 of the Act of 1995, he had no right to continue in service in spite of the disability. Learned Advocate Mr. Fulman Singh has appeared for the writ petitioner. He has submitted that irrespective of the exemption granted under sections 33 and 47 of the act of 1995, in many a cases, following the direction of the Hon‟ble Supreme 6 Court, the appellant Union of India has reinstated the personnel of the Armed Forces in service who were discharged on the ground of disability. The averments are vague and cannot be countenanced. In view of specific exemption granted under the law, the writ petitioner cannot claim parity with the other cases which may have been considered prior to the notifications dated 28th March 2002. For the aforesaid reasons, the appeal is allowed. The impugned judgment and order dated 10th September 2009 passed by the learned Single Judge in C.W.J.C.No.No.8412 of 2009 is set aside. C.W.J.C.No.8412 of 2009 is dismissed. There shall be no order as to costs. Interlocutory Applications stand disposed of. ahk (R. M. Doshit, CJ) (Jyoti Saran, J)