46 1 1 1 CWP No150 of2009 1 t IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH CWP No8150 of2009 0841 DATE OF ORDER l 11 20 11 m VirenderSingh PETITIONER tZ VERSUS 0 C40 Stateof Haryana and others RESPONDENTS I C5 I CORAM HONBLE MRUSTICE MAHESH GROVER Z S Presentl ShriMohit GargAdvocate forthepetitioner ShriHarish RatheeSeniorDAG Haryana C Z C0 MAHESH GROVER Je m3 Z tl The petitioner prays for the issuanceof a writ in the nature of certiorariquashing the impugned orderAnnexure Pe3 dated4102006 videwhich the petitioner has beenretired from service in complete contraventionof Section 47 ofthe Personswith Disabilities6Equal ProtectionofRightsand Full Act 1996 referredto as theActI The petitionercontendsthat hewas in the serviceof the but was afflicted with a chronic diseaseRheumatoidArthritis in the year 1997 which is retlectedfrom Annexure P Despitetreatment the chronic disease could not be cured and his case was referredto the SpecialMedical Board Anita 2014.03.29 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:55 I attest to the accuracy and integrity of this document 47 C WP NoS150of2009 2 PGIMES Rohtak whoopined as follows Certi8ed that the SpecialMedical Board has care81lly examinedSlVirender Singhslo RandhirSinghwhosethumb below on DtA10061 Special Medical Board considersShri VirenderSingh and for furtherservice 111the of Animal Husbandry 8 DairyingDepttas 0 VLDA on account ofweaknesson all four limbs deformity of 0 bIL kneeships88ngersandoperated case of cervicalspine X C5 involvementdueto rheumatoidarthritis I His incapacity does not appearto me lsl to have been Z causedby irregular or habits SpecialMedical Boardis of theopinionthat ShrNirender is NFTT for 6lnher service a VLDA in thatdepttof 97 Z This opinionwas givenon 41996 and the petitioner was retired CO fromservicevideorderdated 15112006with effectfrom4102006 7 Thepetitioner invokestheprovisions ofSection47 ofthe Act which Z areto thefollowingeffect tl Section 471 Nonediscrimination 111 Govemment 6ll No establishmentshall dispense with or reduce in rank an employee who acquires a disabilityduring servlce Provided that if an employee afteracquiringdisability 1S not suitablefor the post he was holdingcould be shiRedto someother postwith the same pay scaleand servicebenefitsl Provided61rtherthat if it is not possible to adjustthe Anita 2014.03.29 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:55 I attest to the accuracy and integrity of this document 48 CWP No150 of2009 3a againstany post he may be kept on a postuntil a suitablepost is availableor he attainstheageof whicheveris earlier 62I No promotion shallbe deniedto a personmerely on the ground ofhis disability l Providedthatthe Government may having i t regard to the typeof work canied on in any establishmentby 0 notiflcationandsubject to suchconditions if any as may be 0 in suchnotificationexemptany establishment om I 0 theprovisions ofthis section I Z Thepetitioner thuspleaded that he shouldnot have beenretiredfrom serviceon account ofhis disabilityrathera supemumerarypostshouldhavebeen r createdtill heattainedthe ageof I The havedeniedthe claim of thepetitioner and have Z stated that the claim of the petitioner was considered for exegratia on m grounds andthathe never challenged the orderof 2006and rather 3 Z rnadea posotiveclaim by filingCWl No650 of 2008 wherein he sought directionsthathis pensionary benefitsshouldbe releasedto him andthus having accepted the order of retirement and alsothe pensionhe is now debaued from invoking the provisions of Section 47 of theAct Funher still an objection has beenraisedto say thepetition is belated On due considerationof the matter I am of the opinionthat the objection raisedbythe regarding thepetitioner having81edan earlier writ petitionseekingreleaseof his pensionary benefitscannot be held againstthe petitioner and once the order of retirementhas come into existence the pension beinghis right he was certainly correct and within himselfto have invoked the Anita 2014.03.29 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:55 I attest to the accuracy and integrity of this document 49 lJ CWP N081500f2009 4 jurisdictionof this Court This 111 fact per cannot be taken againstthe petitioner In so far as thesecondaspectisconcemedthatthepetitioner is filing thispetitionaftera lapseof 3 yearsof his retirement I am of theopinionthatthe samealsowouldnot be sufOcientto oust theclaim ofthe petitioner The intendedpurposeofSection 47 ofthe Act is bene8cia1in nature andis inclined towardsthe who acquiredisability 0 during the service andthepurposeis obviously to protecttheir rightsand ensure C40 their elsewherebygivingthem a different which will not I t5 be in conflictwith their disabilityThe Honble Supreme Court in KunalSinghV I UnionofIndia and another AlR 2003 SC 1623 hasobservedas follows Z An employeewho acquiresdisabilityduringhis service 1S soughtto be protectedunder Section 47 of the Act Such employeeacquiringdisabilityif not I wouldnot onlysufferhimself butpossiblyall those Z who depend on him would also suffer The very frameand C contents of Section47 clearlyindicate its nature em Z It contains a clear directive that the employershall not l1 dispense with or reducein rank an employee who acquires a disabilityduringthe service In construing a provisionof social beneflcial enactment that too dealingwith disabled persons intendedto givethemequal protection of rightsand full the view that advancesthe objectof theAct and serves its purpose must bepreferred to the one which obstructstheobjectand paralyses thepurpose of the Act Languageof Section 47 is plainand certaln castingstatutoryobligation on the employer to protectan Anita 2014.03.29 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:55 I attest to the accuracy and integrity of this document SO CWP NoS150of2009 acquiringdisabilityduringservice The pleathat benefltof Section47 is not availableto the appellant as he has sufferedpermanentinvalidity cannot be acceptedBecause theappellant wasan who has acquiredisability withinthemeaning ofSection260ofthe Act andnot a person with disability 1 C 0 It was 81rtherobservedin this as follows Ca0 the Act has givendistinct and different definitions of I C5 disabilityand personwith disabilityIt is well settledthatin I the same enactment if two distinct definitions are given Z deOninga they must be understood in terms ofthe definition It must beremembered thatperson does not acquireor sufferdisabilitvbvchoice An I emploveewho acauiresdisabilitvduringhis serviceis sought Z to be protectedunderSection47 ofthe Act speci6ca11vSuch 00 emploveeacquiringdisability if not protectedwould not m7 onlvsufferhimself but possiblvall thosewho dependon him Z would alsosuffer The verv frameandcontents of Section 47 clearlvindicateits mandatorvnature The verv openingpan of Sectionreads no establishmentshall dispensewith or reduce lll rank an employeewho acquiresa disabilitvduringhis service The Section irther providesthat if an ernployee after acquiringdisabilitvis not suitablefor the Post he was holdingcouldbe shiftedto some otherpost with the same pav scale and service beneflts if it is not possibleto adiustthe employeeagainstanv post he will be kepton a supernumerarv Anita 2014.03.29 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:55 I attest to the accuracy and integrity of this document 51 CWP No 8150of2009 a 1 postuntil a suitableoost is availableor he attainstheage of whichever is earlier Added to this no promotion shallbe deniedto a person merelvon thegroundof hisdisabilitvas is evidentfrom sulsectiol21 of Section47 Section47 containsa clear directivethat theemployer shall not dispense with or reducein rank an employee who acquires 1 C a disabilityduringthe service In construing a provisionof 0 socialbenetlcialenactment that too dealingwith disabled ta persons intended to giventhemequal protection I C5 of rightsand full the view that advancesthe objectof theAct and serves its purpose must bepreferred to Z 1 the Act Language of Section 47 is plainand certain casting lr obligation on theemployer to protectan employee I C3 acquiring disabilityduringservice Z 10 The argumentof theleamedcounselfor therespondent m on thebasisof deflnitiongivenin Section2tI of the Act that V7 Z benetltof Section 47 is not availableto the appellant as hehas Il sufferedpermanent invaliditv cannot be acceptedBecause the appellantwasan emploveewho hasacauireddisability withinthemeaningof Section 2il of theAct andnot a person withdisabilitv This Court is thus of the opinionthat such a beneficiallegislation hasto be liberallyso that theflow of intendedbeneOtis not obstructed It is not essentialfor an employee to pleadthat Section 47 of theAct be invoked in his favourbymaking an applicationThe language of Section 47 ilIl Anita 2014.03.29 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:55 I attest to the accuracy and integrity of this document 52 C CWP N081500f2009 7 fact casts an obligation on the employerwho should exploreone of the andgrantthebeneOtto disabledemployee as per the optionsavailable ee other in any suitablejob in the same pay andemolumentsandby a supemumerarypost The Statecannot takeup this pleaand denythis benetlt simplyon the ground that the concemeddisabledemployee has not invokedsuchprovisionsRather the is cast with a dutyto resort r to such an exerclse which shall reflect application of mind and a 0 decision supported by reasons and even if a person who is ignorantof the 0 seeksvoluntary or premature retirement even thentheStatewouldbe I t5 obliged to explorethe possibility of granting the necessaryrelief to the employee I in terms of Section47 of the Act andupon making an employee consciousof the Z options beforehim then acceptsuch prayer for voluntary or premature retirement ifthe employee still choosesto pelsist r The petition is thusallowed The are directedto consider I C3 theclaim of thepetitioner lll tennsof the observationsmadeaboveand also in Z terms ofthe mandateofSection 47 ofthe Act However in case thepetitioner has ClO already beengranted the exgratiaassistance thepetitioner would be obligedto mW return theexgratiapaymentalreadyavailedof byhim Needless to say that any Z benetlttlowingto thepetitioner as a consequenceof thisdecision shallbe subject to the of thebeneOtsalreadygivento him 2LJ 6MAHESHGROVER December12 2011 JUDGE GD 1 Dr WHETHER TO BE REFERRED TO REPORTER7 YESINO Anita 2014.03.29 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:55 I attest to the accuracy and integrity of this document