NANAK RAM MEENA VS. UNION OF INDIA & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.207/09) 1 NANAK RAM MEENA VS. UNION OF INDIA & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.207/09) Dated:- 25.02.2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Dr.Sachin Acharya, for the appellant. 1. This special appeal is directed against order dated 1.5.08 passed by the learned Single Judge of this court whereby the writ petition preferred by the appellant assailing the validity of order dated 3.10.06 passed by the Inspector General, Boarder Security Force, Bikaner retiring the appellant from service under the provisions of Rule 25 of the BSF Rules, 1969 read with Rule 38 of the Central Civil Services(Pension) Rules, 1972 w.e.f. 31.1.07 , stands dismissed. 2. The validity of the aforesaid order dated 3.10.06 was assailed by the appellant on the grounds firstly, that as per the provisions of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ( in short “the Act of 1995” hereinafter) , the respondents were under an obligation to extend an alternate appointment to the appellant instead of retiring him from service; secondly, that the disability on account of which the appellant was ordered to be retired from service was suffered by him in the year 2000 and thereafter, he NANAK RAM MEENA VS. UNION OF INDIA & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.207/09) 2 was continued in employment for a period of 7 years therefore, on account of such a disability , he could not have been retired from service. 3. The stand of the respondents before the learned Single Judge was that the provisions of Act of 1995 has no application to the controversy involved in the writ petition inasmuch as in exercise of the power conferred u/ss. 33 & 47 of the Act of 1995 , the appropriate Government has exempted the BSF , a Para Military Force from the application of the provisions of Act of 1995 vide notification dated 10.9.02. It was submitted that on 8.9.06, the appellant was produced before the Medical Board, at Sector Hospital,Bikaner and since he was found to have incurred 80% permanent disability thus, on the recommendations made by the Medical Board, he was ordered to be retired from service. 4. After due consideration of the rival submission,the learned Single Judge arrived at the conclusion that the BSF being a Para Military Force stands exempted from application of the provisions of Section 33 of the Act of 1995 by virtue of the notification dated 10.9.02 issued by the appropriate Government therefore, no reservation of any post for the blind or the persons with low vision , hearing impairment or loco motor disability is required to be made in the BSF. The learned Single Judge opined that it is for the employer to see that when and up to what NANAK RAM MEENA VS. UNION OF INDIA & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.207/09) 3 degree of disability an employee should be retained in service and such decision of the competent authority is not required to be interfered with only on the count that for some time the employee has continued in service despite such disability. Accordingly, the writ petition preferred has been dismissed by the order impugned in this appeal. 5. Admittedly, as per proviso to Section 33 and proviso to Section 47 of the Act of 1995, 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 the said sections. It is not disputed before us that vide Notification dated 10.9.02 issued by the Central Government, the BSF stands exempted from the applicability of the provisions of Sections 33 and 47 of the Act of 1995. In this view of the matter, no reservation of the posts in terms of the provisions of Section 33 of the Act of 1995 is required to be made in BSF and the employees of the BSF are not entitled to claim protection in terms of the provisions of Section 47 of the Act of 1995. Thus, the finding arrived at by the learned Single Judge in this regard cannot be faulted with. 6. It is true that the appellant suffered the disability in the year 2002 but, the fact remains that he was duly examined by NANAK RAM MEENA VS. UNION OF INDIA & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.207/09) 4 the Medical Board on 8.9.06 and he having found suffering from 80% permanent disability, the Board recommended that he is not fit to be retained in service. Thus, the decision taken by the competent authority to retire the appellant from service after due approval of the recommendations made by the Medical Board, cannot be faulted with. This court cannot interfere with the decision taken by the competent authority in this regard unless the same is found to be based on extraneous consideration or actuated by malice or the same is found to have been passed in contravention of the statutory provisions. We are in agreement with the opinion expressed by the learned Single Judge that as to when and up to what degree of disability a person should be retained in service is a matter to be decided by the employer and this court cannot sit in appeal over such decision. 7. For the aforementioned reasons, in our considered opinion, the order impugned passed by the learned Single Judge does not warrant any interference by us in this intra court appeal. 8. In the result, the special appeal fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J.