IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. NO. 1311 of 2006 Reserved on : 6.5.2008 Decided on: 19.5.2008. Kunal Singh ..Petitioner. Versus Union of India & Anr. …Respondents. Coram The Hon’ble Mr.Justice Rajiv Sharma, Judge Whether approved for reporting?1 No. For the Petitioner : Ms. Uma Manta, Advocate, vice counsel. For the respondents : Ms. Shilpa Sood, Central Government Counsel. RAJIV SHARMA, J. The brief facts necessary for the adjudication of this petition are that the petitioner was enrolled in the SSB Organization as Constable on 5.4.1982. He received injury in his left leg while on duty resulting in amputation of his leg. He was declared disabled and removed from service on 20.11.1998. He assailed his order of removal by way of C.W.P.No. 9/1999 titled as ‘Kunal Singh Vs. Union of India’ in this Court. The same was dismissed by this Court on 24.4.1999. The petitioner filed SLP No.1789/2000 before the Hon’ble Supreme Court of India. The Hon’ble Supreme Court set-aside the judgment of this Court on 13.2.2003 reported in (2003) 4 SCC 524. The petitioner was re- employed pursuant to the direction issued by the Hon’ble Supreme Court. He made a representation to the respondents on 1.10.2005 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 seeking two financial up gradations on completion of 12 years and 24 years of regular service under the ‘Assured Career Progression Scheme’ (hereinafter referred as ‘Scheme’ for brevity sake). He was called upon by the respondents by way of letter dated 14.10.2005 whether he had undergone JCC and SCC course. He sent a reply on 22.10.2005 specifically stating therein that in view of the amputation of his leg, he was unable to undergo these courses. However, he reiterated that his case for promotion should be considered under Section 47 of the Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The representation made by the petitioner was rejected by the respondents on 28.10.2005. The text of letter dated 28.10.2005 reads thus: “The eligibility provisions for ACP up-gradation for any Force personnel is subject to specific criterion i.e. similar to the pre-requites for regular promotion. Your re-appointment on the version of apex court is to protect your job on supernumerary notion being disabled person to meet the ends of the justice. However, your intimation vide above referred application, neither you have undergone promotional course i.e. JCC / SCC nor you are medically fit as shape-I, therefore, your request for ACP up-gradation is not tenable.” The respondents despite various opportunities had not chosen to file the reply, however, Ms. Shilpa Sood had placed on record the copies of Gazette of India dated 23.8.2004 as well as letter dated 28.9.2007 sent by the Deputy Inspector General (Personnel), Government of India. Ms. Uma Manta appearing vice Mr. Rajinder Kishore Sharma had strenuously argued that her client was entitled to the benefits flowing from the ‘Assured Career Progression Scheme’ after the 3 completion of 12 years and 24 years of services. She further contended that the letter dated 28.10.2005 is not sustainable in the eyes of law. Mr. Shilpa Sood, had supported the order dated 28.10.2005. I have heard the learned counsel for the parties and also perused the records carefully. It is not disputed by the parties that the petitioner had suffered injury in his left leg resulting in amputation. The Hon’ble Supreme Court had issued following directions in Kunal Singh Vs. Union of India and another (2003) 4 SCC 524 as under: “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 sequel to judgment dated 13.2.2003, the petitioner has been assigned the Clerical duties. It is evident from letter dated 28.9.2007 that the petitioner was required to be adjusted against the post of LDC carrying same pay scale as per provisions of the Act. The case of the petitioner has been taken by the Deputy Inspector General 4 (Personnel) on 28.9.2007 with the Government of India. In view of the ban imposed on recruitment in civilian cadre vide letter dated 26.3.2003, the Deputy Inspector General (Personnel) had sought the approval for adjusting the petitioner against the post of LDC. The outcome of the same has not been placed on record by the respondents. The case of the petitioner was required to be considered as per the judgment dated 13.2.2003. The petitioner had started discharging the Clerical duties . It was incumbent upon the respondents to immediately explore the possibilities of shifting the petitioner to some post with same pay scale and service benefits and in absence, he was to be kept on a supernumerary post till suitable post was available. It appears that the respondents have not taken any steps in furtherance of the judgment of the Hon’ble Supreme Court except that he was assigned the Clerical duties. The Deputy Inspector General (Personnel) has taken up the case of the petitioner for adjusting him against the post of LDC only on 28.9.2007. It appears from the contents of letter dated 28.9.2007, the pay scale of the post of the petitioner he was holding before his removal and the post of LDC are same. He could be easily posted against the post of LDC or if the post was not available, he could be kept on supernumerary post. He had started discharging the same duties which are being discharged by the civilian staff in SSB organization. He had put in more than 26 years of service with the respondent-organization. Consequently, he is entitled for financial up- gradation after completion of 12 years and 24 years of service as per the Assured Career Progression Scheme read with Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. Since the petitioner had started discharging Clerical duties, the notification dated 23.8.2004 will not be attracted qua the petitioner. He is now to be treated as civilian with SSB 5 Organization. Moreover, the notification issued on 23.8.2004 is prospective in nature and the Hon’ble Supreme Court has rendered the judgment in the case of petitioner on 13.2.2003. The petitioner could not be forced by the respondents to complete JCC/SCC course since his left leg has been amputed while on duty. The law does not compel the citizens to perform impossibilities. It is a fit case where the principle of lex non cogit ad impossibilia will be applicable. Consequently, in view of the observations made hereinabove, the writ petition is allowed. Annexure A-4 dated 28.10.2005 is quashed and set-aside. The respondents are directed to grant the petitioner financial up-gradation from the date he had completed 12 years and 24 years of services, respectively in the respondent-SSB Organization. The respondents are also directed to take a final decision on the communication dated 28.9.2007. The directions will be carried out by the respondents within a period of eight weeks from today. There shall be no order as to costs. (Rajiv Sharma ), Judge. 19.5.2008.(GR).