C.W.P. No.8572 of 2007 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.8572 of 2007 Date of Decision: 07.12.2009 Avadh Raj Singh .....Petitioner Versus Union of India through Secretary of Home Affair, Parliament Street, New Delhi and others ....Respondents Present: Mr. K.K. Garg, Advocate for the petitioner. Ms. Ranjana Shahi, CGSC for respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K. KANNAN J.(ORAL) 1. By a medical invalidation and recommendation of the petitioner from being boarded out of service on medical grounds, the 3rd respondent issued notice on 12.05.2007 directing the petitioner to avail of an opportunity to apply to the competent authority provided under Rule 26(3) of ITBP Force Rules, 1994 to challenge the recommendation of the Medical Board along with prima facie evidence that he may wish to submit. This notice and the recommendation of the Medical Board have been challenged in this writ petition. The petitioner also seeks for issuance of a C.W.P. No.8572 of 2007 -2- mandamus to provide for alternative appointment as set out through the mandatory provisions of Section 47 of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and in terms of the decision of the Hon'ble Supreme Court in Kunal Singh Vs. Union of India and others 2003(4) SCC 524. 2. As regards the applicability of Section 47 of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the contention on behalf of the respondents is that employment in ITBP is exempted through a notification issued under Section 47 of the Act by the Ministry of Social Justice and Empowerment, Government of India dated 10.09.2002.. The decision of the Hon'ble Supreme Court is also not rendered in the context of the applicability of the Act to persons in ITBP Force. Therefore, the reliance on the provision of the said Act and the decision of the Hon'ble Supreme Court will not be justified. 3. The learned counsel for the petitioner refers me to the decision of this Hon'ble Court rendered in Om Parkash Vs. Union of India and others in C.W.P. No.16800 of 2007 dated 22.01.2009 where in an alleged similar set of circumstances, the claim by a person, who had been recommended for termination was successfully challenged and there was a direction that the Constable, who was the petitioner in the case, was directed to be C.W.P. No.8572 of 2007 -3- continued and assigned with the duties as set out in the office report. The learned counsel for the petitioner would state that the petitioner had already been assigned with the duty of a teacher in a Battalion School in morning shift by the proceedings of the Battalion (CCD) dated 18.11.2005. Even the medical invalidation report merely sets out that having regard to the severity of disability, he was unlikely to be fit to perform the duties of Constable. The Medical Board does not appear to have considered whether the alternative duty assigned to him after his amputation, was capable of being performed by the workman. Evidently, the fact that the petitioner had been performing an alternative duty which was available has not been considered by the Medical Board. Subsequent to the notice of the 3rd respondent, which is impugned in the writ petition, by invoking a statutory rule it would enable the petitioner to contend that the Medical Board's recommendation was not appropriate. The petitioner had been apprised of a right to apply to the competent authority within 30 days. The petitioner has not availed of that opportunity but he has directly filed the writ petition placing his reliance on the decision of the Hon'ble Supreme Court and presently relying on the decision of this Hon'ble High Court rendered in C.W.P. No.16800 of 2007. 4. In my view, the appropriate remedy would be to only avail of the provision in the Rules that enable the affected person C.W.P. No.8572 of 2007 -4- to appeal against the decision of the Medical Board and as pointed out in the notice dated 12.05.2007. The learned counsel states that the appeal will be considered again by the very same Medical Officer and that he will be severely handicapped from obtaining a valid adjudication. I am afraid that in the absence of a challenge to Rules themselves, it is not possible for this Court to issue any directions as to who shall examine the appeal. Suffice it to direct that the competent authority, who is bound to examine the correctness of the recommendation of the Medical Board shall take an objective assessment of any other alternative duty which the employee is capable of performing, such as, the continuance of his duty as a Teacher, which he was already performing, if such work is still available. Any other lesser duties, which could be assigned and which may be available such as Operator in the Exchange, STD/PCO, Company Clerk, Duty of Asstt. at school bus as suggested in the office order of the employer, referred to in Om Parkash's case (supra) could also be considered. The notice dated 12.05.2007 provided for an appeal filed within 30 days. The said period has elapsed. In the special circumstances of the case, I deem it appropriate to allow the petitioner to take the pendency of the case before this Court as a justification for not filing an appeal to the Competent Authority within the time as stipulated. The Competent Authority shall condone the delay and take on file the appeal or representation that is filed against the C.W.P. No.8572 of 2007 -5- initial recommendation of the Medical Board and take appropriate decision in the manner provided for under the relevant rules. The Competent Authority under the Act shall also ensure that a parity in treatment is considered in the light of any other similarly situated persons being retained in service for performance of lesser duties. 5. The petitioner is, under the circumstances, granted the opportunity to prefer an appeal to the Competent Authority in the manner contemplated in the notice of the 3rd respondent dated 12.05.2007 within 30 days from the date of receipt of copy of the order and the Competent Authority shall consider and dispose it of in the light of observations made above. 6. The writ petition is disposed of in the above terms. (K. KANNAN) JUDGE December 07, 2009 Pankaj*