1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 27/2003 Anand Dharma Borker, aged 54 years, Supervisor, residing at House No.2287, Opp. Sanguem, Goa. .......... Petitioner. Versus. 1. State of Goa, through the Chief Secretary, Secretariat, Panaji, Goa. 2. The Deputy Director of Administration, Office of the Chief Engineer, Irrigation Department, Panaji. .......... Respondents. Mr. J. A. Lobo, Advocate for the petitioner. Ms. W. Coutinho, Government Advocate for the respondents. CORAM : S.C. DHARMADHIKARI & R.C. CHAVAN, JJ. Date : 30th August, 2008. ORAL JUDGMENT : (Per DHARMADHIKARI, J.) 1. By this petition under Article 226 of the Constitution, the petitioner prays for a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to refix his pay scale to that of a Group “C” post of Light Vehicle Driver. The other reliefs that he is seeking pertain 2 to granting him benefits of the Fifth Pay Commission after the above refixation, so also paying him all arrears in furtherance of such refixation. Further, having superannuated, the prayer is to determine pension as well in the refixed pay scale. The petitioner claims the benefits under the Assured Career Progression Scheme which made applicable to the Group “C” posts as well. He prays that the same be extended to him. 2. The facts lie in a very narrow compass. The petitioner was appointed as a Light Vehicle Driver with the Government of Goa on 23.8.1973 and served the State until he met with an accident on duty. The accident took place on 12.4.1986. The petitioner's right arm above the elbow was amputed. There are certificates from the Goa Medical College to this effect. 3. Considering the plight of the petitioner and applying its policy not to do away with services of such employees, the State appointed the petitioner, but, this time on a Group “D” post. The petitioner was assured that his pay scale in the post of Light Vehicle Driver will be protected although he would work as Supervisor. Undisputed fact is that Light Vehicle Driver is a Group “C” post; whereas Supervisor is a Group “D” post carrying lesser pay scale. The petitioner having been protected in this manner, had no objection 3 to work and serve the State. 4. An undertaking was taken from the petitioner to the above effect and, thereafter, the petitioner started working as a Supervisor. In May, 1998, the petitioner's salary bill was received by him which showed that his pay scale had been reduced. In such circumstances, he made a grievance to the State and, thereafter, to the Ombudsman. Undisputed further factual position is that the Ombudsman has directed as under : “ The request of the Applicant to protect his pay scale of Rs.950-1400 (Rs.3050-4590) may be rejected. However, his pay in the pay scale of Rs.950-1400 drawn by him prior to his joining the post of Supervisor in the pay scale of Rs.800-1150 may be protected.” 5. In other words, the Ombudsman directed that the pay scale drawn by the petitioner earlier is protected. In such circumstances, all that the petitioner expected is clearance of all the arrears. But it appears that the arrears were cleared with effect from the date of the Ombudsman's order and, in any event, from 16.2.2002. The redeployment of the petitioner being much prior thereto, the petitioner prayed that arrears should be with effect from the date he was appointed and started working as Supervisor in Group “D” post. That request was not granted and that is how this writ petition. 4 6. The contention of Shri Lobo, appearing for the petitioner is that on 28.2.06, the petitioner superannuated from the Government service after attaining 58 years of age. The age limit for Group “C” post is 58 years; whereas the age limit for Group “D” post is 60 years. When the petitioner retired attaining 58 years of age, it means that the petitioner was treated as working in Group “C” post. In any event, his appointment as Supervisor is pursuant to his undertaking and on the assurance that his earlier pay would be protected. In such circumstances, by not granting the petitioner the arrears with effect from his appointment as Supervisor, so also denying him the benefits of Assured Career Progression Scheme, the petitioner has suffered not only on account of disability, but on account of discrimination and arbitrariness of the State as well. The State's obligation towards disabled is well settled according to Shri Lobo. He invited our attention to the directive principles of State Policy and more particularly Article 39(d)and (e), so also Articles 41 and 43 of the Constitution of India. He also invited our attention to the enactment i.e. Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995. He has placed reliance upon a decision of the Supreme Court in Bhagwan Dass & anr. v. Punjab State Electricity Board., reported in AIR 2008 SC 990 and of the Bombay High Court in Shivaji Vishwanath Dongre vs. State of Maharashtra & Ors. reported in 2006(2) Bom. C.R. 261. 5 7. On the other hand, Ms. Coutinho learned Government Advocate has invited our attention to the affidavit filed in reply. She submits that it is undisputed that the petitioner suffered on account of accident and was, therefore, assigned less labourious work. The petitioner was fit to do less labourious work. Therefore, he was appointed as Supervisor, which is a Group “D” post. The petitioner's pay scale was fixed in the Group “D” post earlier, but after the petitioner approached Ombudsman and the Ombudsman report was submitted, the Government accepted the recommendations therein and on 16.9.02 restored the petitioner's pay. The petitioner has also been given 3 stagnation increments. She contended that the petitioner is not entitled to Time Bound Promotional Scale, but as far as Assured Career Progression Scheme, his representation is pending and would be duly considered. 8. The short point before us is whether the State was justified in restoring the petitioner's pay in the scale of Rs.950-1400 with effect from 16.9.02 or that it should have done so from the date the petitioner was appointed in the Group “D” post as Supervisor ? We are of the view that there is no justifiable reason for denying the petitioner the benefits of the refixed pay from the date of appointment. In the peculiar facts of this case and 6 when the State does not dispute that the petitioner was disabled and fit to work on less labourious job and accordingly redeployed/employed him on that basis, then, least that was expected from the State was to fix the pay by protecting the same as far as the petitioner is concerned. Thus, although he was placed in Group “D” post which is lesser grade post, then, the Light Vehicle Driver post (Group “C”), the petitioner should have been granted pay scale of Group “C” post in the light of his undertaking and on the assurance subsequently recorded. The State corrected its earlier errors by accepting the Ombudsman report. In terms of the Constitutional provisions and the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995, the State should have extended its assistance to the petitioner by protecting his pay scale in Group “D” post with effect from the date of his appointment as Supervisor (Group “D” post). That having, admittedly, not done, we are of the view that the petitioner's grievance is justified. The disability will have to be treated fairly, reasonably and with sympathy. The petitioner suffered on account of an accident while rendering services to the State and has now superannuated. In this peculiar case, the petitioner should be granted the benefit that is admissible to him. As a result, the petitioner would be entitled to refixation of his pay in the pay scale of Rs.950-1400 with effect from the date of his appointment as Supervisor i.e. 13.2.1995. The petitioner's pension shall also be refixed and determined on 7 the basis of the pay scale of Group “C” post held by him and all arrears of pension also be released within a stipulated period. 9. Further, the petitioner has made a representation to grant him benefits under the Assured Career Progression Scheme. Such a representation is pending with the State which should be considered sympathetically and on the basis of the applicable guidelines and policies and benefits, if admissible, be extended to the petitioner within a period of 3 months from today. Further, the refixation of his salary and pension as directed be done and all arrears accordingly be disbursed thereafter within above period. 10. Lastly, what remains is the benefit under the Fifth Pay Commission appointed by the Government of India. These recommendations are accepted by the State Government and in the State of Goa they are accepted with effect from 1.1.1996. The higher pay scale in the post of Group “C”on this basis are admissible to the petitioner undisputedly. Therefore, although his appointment to Group “D” post but his pay being refixed, his arrears of Fifth Pay Commission be released to the petitioner, if not already released as admissible to the Group “C” post carrying scale of Rs.950-1400, which is enhanced to Rs. 3050-4590 because of the acceptance of the recommendations of the Fifth Pay Commission. In these circumstances, even the pension be 8 refixed on that basis. The arrears of pay and pension will also have to be released within the above mentioned period. All arrears be paid to him with interest at the rate of 6 % per annum within a period of 12 weeks from today. Rule is made absolute in the above terms with no order as to costs. S.C. DHARMADHIKARI, J. R.C. CHAVAN, J. ssm.