Himachal Pradesh High Court
Desh Raj vs State Of Himachal Pradesh & Others on 2 July, 2019
Bench: V. Ramasubramanian, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 881 of 2019-I
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Date of Decision : July 2 , 2019
Desh Raj ...Petitioner
Versus
State of Himachal Pradesh & others ...Respondents
Coram:
The Hon'ble Mr. Justice V. Ramasubramanian, Chief Justice.
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1
For the petitioner : Mr. Sudhanshu Jamwal, Advocate.
For the respondents : Mr. Ashok Sharma, Advocate General with
M/s Ritta Goswami, Adarsh Sharma, Nand
Lal Thakur & Ashwani Sharma, Addl. AGs.
Anoop Chitkara, Judge (Oral)
The petitioner herein seeks a mandamus to enhance his retirement age from 58 to 60 years, by taking the benefit of the judgment passed by this Court in CWP No. 1577 of 2018, decided on 5 th November, 2018 (Annexure P-
5). The petitioner is a physically challenged person and his claim is that the age of retirement of similarly placed persons already stands increased from 58 to 60 years.
2. Vide Office Memorandum dated 29th March, 2013 (Annexure P-2), the Government of Himachal Pradesh 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 00:14:00 :::HCHP 2had extended the retirement age of visually impaired Government Servants, from 58 to 60 years.
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3. To seek similar relief, the petitioner approached the Himachal Pradesh Administrative Tribunal in O.A. No. 4519 of 2018, claiming benefits of judgment passed by this Court in CWP No. 1577 of 2018, titled as State of H.P. & others vs. Krishan Chand.
4. Vide order dated 8.01.2019, passed in O.A. No. 4519 of 2018, the Tribunal disposed of the original application, with a direction to the respondents/competent authority to extend the benefit of the judgment referred above, to the applicant, in case he is also similarly situated.
5. It is not in dispute that the petitioner is physically handicapped person (locomotor impaired) with 40% disability and certificate to that effect is placed with the petition as Annexure P-1.
6. Supreme Court, in Civil Appeal No. 8855 of 2014 (State of Punjab vs. Bhupinder Singh), decided on 16th September, 2014, was dealing with a case pertaining to the question whether the benefit of extension in service from 58 to 60 years granted to visually impaired employees of the ::: Downloaded on - 29/09/2019 00:14:00 :::HCHP 3 State Government of Punjab could be extended to persons suffering from other disabilities mentioned under the .
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Supreme Court holds as follows:
"The aforesaid issue has been answered by a Division Bench of the Punjab and Haryana High Court in the affirmative. We fully endorse the aforesaid determination rendered by the High Court and also affirm the reasons recorded in arriving at the aforesaid determination. All the same, we would record our restriction/limitation to the determination rendered by the High Court. On the issue of employment, the Disabilities Act contemplates reservation through Section 33 for three types of disabilities. Firstly, persons suffering from blindness or low vision. Secondly, persons suffering from hearing impairment. And Thirdly, persons suffering from locomotor disability or cerebral palsy. For equal opportunity and protection of rights in employment, only the above three categories of disabilities have been recognized by the Disabilities Act. On a reference to the provisions of the Disabilities Act, therefore, equality is sustainable only in respect of the three categories specified in Section 33 of the Disabilities Act. In fact, learned counsel for the respondents also endorse the above position.::: Downloaded on - 29/09/2019 00:14:00 :::HCHP 4
In order to dissuade this Court from accepting the reasoning expressed in the impugned orders, learned counsel for the appellants invited our .
attention to a decision rendered by this Court in Union of India vs. Devendra Kumar Pant and others (2009) 14 SCC 546. The question that arose for consideration in the aforesaid judgment pertains to promotion. That is not the case here. The benefit granted by the High Court pertains to the respective employment in which a disabled employee has been engaged. In that view of the matter, the judgment relied upon by the learned counsel for the appellants is not applicable to the facts and circumstances of this case. Our above view is based on the fact, that the issue of discrimination adjudicated upon by the High Court, relates to employees who were already engaged in government service. There is no dispute about their ability to discharge their duties, against the posts on which they were employed. The benefit if extended to the categories of disabilities for which reservation in employment has been contemplated under the Disabilities Act would not cause any administrative inconvenience to the appellants."
7. The Division Bench of this Court, in CWP No. 1577 of 2018 (State of H.P. & others vs. Krishan Chand) decided on 5th November, 2018, extended this benefit to physically challenged employees of the IPH Department by ::: Downloaded on - 29/09/2019 00:14:00 :::HCHP 5 holding that the issue is no more res integra, holding as under:
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"2. The facts are not in dispute. The respondent was appointed as Junior Engineer in the Public Works Department vide order dated 20.01.1984 in the physically handicapped category. The respondent was subjected to medical examination and as per the "medical certificate for physically handicapped" dated 06.04.2008, he was found suffering with permanent hearing impairment to the extent of 75%. The respondent was subsequently vide order dated 17.10.2014, promoted from the post of Junior Engineer to Assistant Engineer.
3. Meanwhile, the Government of Himachal Pradesh vide memorandum dated 29.03,2013, took a policy decision, whereby the retirement age of blind government employees, was enhanced from 58 to 60 years.
4. The respondent raised a claim that all the differently abled persons constituted one homogeneous class, hence the benefit of enhancement in retirement age should be extended to them including him. As the State Government did not not accept the respondent's claim, he approached the Himachal Pradesh Administrative Tribunal. Learned Tribunal relied upon a Division Bench judgment of the Punjab & Haryana High Court in the case of State of Punjab & Others vs. Bhupinder Singh in LPA No. 1719 of 2011 ::: Downloaded on - 29/09/2019 00:14:00 :::HCHP 6 decided on 25.09.2012, where also an identical issue was raised with reference to the legislative policy of the Persons with Disabilities (Equal .
Opportunities, Protection of Rights and Full Participation) Act, 1995. The court held that all persons suffering one or the other disability as defined in the Act, were entitled to be treated at par and they could not be treated differently for other disabled persons, falling within the definition of 2(i) of the Disabilities Act, as all of them form one class and there cannot be any sub- classification within the same class. The above cited judgment of the Punjab & Haryana High Court was later on affirmed by the Hon'ble Supreme Court in Civil Appeal No. 8855 of 2014 (State of Punjab & others vs. Bhupinder Singh), decided on 16.09.2014.
5. We thus find that the issue sought to be raised is no longer res-integra and has been effectively answered against the petitioner-State by the High Court of Punjab and Haryana in the afore-cited judgment."
8. Ms. Ritta Goswami, learned Addl. Advocate General appearing for the respondent-State did not dispute the legal position that similarly situated persons were given the similar benefits in other departments of the State of H.P.
9. Vide Office Memorandum dated 29th March, 2013, the retirement age in respect of visually impaired ::: Downloaded on - 29/09/2019 00:14:00 :::HCHP 7 government employees was enhanced. The Supreme Court in Civil Appeal No. 8855 of 2014 ( State of Punjab vs. .
Bhupinder Singh), decided on 16th September, 2014 extended this benefit to physically handicapped persons and so did the Division Bench of this Court in CWP No. 1577 of 2018 (State of H.P. & others vs. Krishan Chand), decided on 5th November, 2018. Now it is no more res integra that the Office Memorandum is not confined to visually impaired persons but stands extended to all physically challenged persons because all the differently abled persons constitute one homogeneous class and benefit of enhancement in retirement cannot be restricted to people who are blind.
10. In view the aforesaid reasoning, the writ petition is allowed and the retirement age of the petitioner is extended from 58 years to 60 years.
The writ petition stands disposed of in the aforesaid terms. Pending applications, if any, also stand disposed of accordingly.
(V. Ramasubramanian), Chief Justice.
(Anoop Chitkara), Judge.
July 2 , 2019 (PK) ::: Downloaded on - 29/09/2019 00:14:00 :::HCHP