Himachal Pradesh High Court
Rita Devi vs Union Of India And on 24 March, 2022
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 24 th DAY OF MARCH, 2022 BEFORE .
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN, JUDGE & HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 731 OF 2020 Between:-
RITA DEVI, W/O LATE SHRI NANAK CHAND R/O LOHARWIN, TEHSIL GHUMARWIN, DISTT. BILASPUR, H.P. ...PETITIONER (BY MR. ADARSH K. VASHISTA, ADVOCATE) AND
1. STATE OF HIMACHAL PRADESH THROUGH PRINCIPAL SECRETARY (RURAL DEVELOPMENT) TO THE GOVT. OF H.P. SECRETARIAT, SHIMLA.
2. THE DIRECTOR (RURAL DEVELOPMENT), GOVT.
OF H.P. SHIMLA.
...RESPONDENTS ( BY MR. ASHOK SHARMA, ADVOCATE GENERAL, WITH MR. VINOD THAKUR, ADDL. AG, MR. YUDHVIR SINGH THAKUR, MR. BHUPINDER THAKUR, DY. AGS AND MR. RAJAT CHAUHAN, LAW OFFICER.) RESERVED ON 22.03.2022 DECIDED ON 24.03.2022 1 WHETHER APPROVED FOR REPORTING?
This petition coming on for orders this day, Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the following :
O RD ER The instant petition has been filed for the grant of following substantive reliefs:-
"(a) That the respondents may kindly be directed to pay due and admissible unpaid 1 Whether reporters of Local Papers may be allowed to see the judgment ? Yes.::: Downloaded on - 24/03/2022 20:12:09 :::CIS 2
salary w.e.f. March, 2014 to 28.11.2015 in favour of the applicant being the legal representative of late Shri Nanak Chand.
(b) The respondents may kindly be directed to .
pay the due and admissible family pension in favour of the applicant.
(c) The respondents may kindly be directed to consider the case of the applicant for grant of employment assistance by way of compassionate appointment in favour of the applicant, in the interest of justice."
2. The late husband of the petitioner Shri Nanak Chand was appointed as Chowkidar with the respondents in the year 1994 and later on his services were ordered to be regularized w.e.f.
22.09.2007. Having served at different stations, the husband of the petitioner was lastly transferred to the Office of Block Development Officer, Jhandutta, District Bilaspur, H.P., where he joined as such on 03.03.2012.
3. In the month of February, 2014, late Nanak Chand suffered mental disability because of serious illness and was directed to appear before the Medical Board on 22.03.2014, where he was diagnosed to be suffering from Post Ineffective Mental Retardation. The services of the Nanak Chand were continued only upto 20.06.2014 by the respondents and thereafter he was retired because of his disability.
4. Now, the grievance of the petitioner is that late Nanak Chand, was required to be granted the benefits, under Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of ::: Downloaded on - 24/03/2022 20:12:09 :::CIS 3 Rights and Full Participation) Act, 1995 ( hereinafter to be called as "the Act"), which were mandatory.
.
5. The respondents have filed the reply and have not disputed the factual matrix and the only explanation for not granting the protection of Section 47 of the Act, as contained in para 6 of their reply, which reads as under:
"In such eventualities the Department has to initiate creation under C.C.S. (medical examination) Rules 1957 instead of PWD Act, 1995 which provides that such Government servant needs to be retired from services and may be allowed pecuniary benefits due in his favour as per his entitlement. Since the husband of the applicant was regularized on 22.09.2007 therefore, pension Rules (including family pension) would not be applicable in his favour as these Rules were made inapplicable to all appointments made on or after 15.05.2003 and they would be covered under H.P. Civil Services Contributory Pension Rules, 2006."
6. We have heard the learned counsel for the parties and have gone through the entire material placed on record.
7. Section 47 of the Act, reads as under:-
"47. Non-discrimination in Government employment-(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of the disability:::: Downloaded on - 24/03/2022 20:12:09 :::CIS 4
Provided that 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 this section."
8. The Hon'ble Supreme Court while examining the provisions of the Act in Kunal Singh vs. Union of India and another , (2003) 4 SCC 524 , has held that an employee of an establishment, who was not exempted from Section 47, acquiring disability during service and getting incapacitated is covered under Section 47 (i) (v) of the Act. It was further held that the protection is mandatorily available to an employee acquiring disability during his service and the same cannot be denied on the ground that he was granted invalid pension or other benefits under the Service Rules. It would be apt to reproduce the relevant observations, as contained in paragraphs 1, 9 and 12, which read as under:-
"The appellant was recruited as a Constable in the Special Service Bureau (for short 'the SSB'). When he was on duty, he suffered an injury in his left leg. The medical aid given to him did not help. Ultimately, his left leg was amputated on account of gangrene which had developed from the injury. He was invalidated from service by the respondents on the basis of the report of the Medical Board, Kullu under which he was declared permanently incapacitated for further service as per order dated 20.11.1998 passed by the Commandant, Group Centre, SSB Shamshi (Kullu). He filed a writ petition in the High Court challenging the validity and correctness of the said order on the ground that it was arbitrary and that he could have been assigned with alternative duty which he could discharge keeping in view the extent of his disability and having due regard to 17 years of his unblemished service. The writ petition was dismissed by the High Court holding that he had been permanently invalidated on the basis of the medical opinion and as such there was no scope for him to continue any further in service of any kind in the SSB. Hence, this appeal is filed assailing the impugned ::: Downloaded on - 24/03/2022 20:12:09 :::CIS 5 order. It appears, before the High Court, no argument was advanced specifically in support of the writ petition on the basis of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Act').
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However, a specific ground is raised in this appeal based on Section 47 of the Act. Since it is a pure question of law, we have heard learned counsel for the parties on the contentions including the one based on Section 47 of the Act.
Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.::: Downloaded on - 24/03/2022 20:12:09 :::CIS 6
Merely because under Rule 38 of CCS Pension Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made .
available to the appellant under Section 47 of the Act.
Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act."
9. In Bhagwan Dass and another vs. Punjab State Electricity Board , (2008) 1 SCC 579 , the Hon'ble Supreme Court criticized the approach of the Punjab State Electricity Board by observing its attitude to be highly insensitive and apathetic. In that case the appellant became blind and remained absent from duty from 18.01.1994 to 21.03.1997 and had requested for his retirement vide letter dated 17.07.1996 and who was retired vide letter dated 14.12.1999. He has sought to withdraw his request for retirement, when he came to know that such request was turned down by the departmental authorities. It was in this background that the Hon'ble Supreme Court came down heavily upon the respondent and has observed as under:
"This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, towards those unfortunate fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State ::: Downloaded on - 24/03/2022 20:12:09 :::CIS 7 Electricity Board were quite aware of the statutory rights of appellant No.1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous.
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In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (appellant No.1) with effect from March 21, 1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from March 22, 1997 till date. If any balance remains, that should be adjusted in easy monthly installments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. He should be reinstated and all due payments, after adjustments as directed, should be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board."
10. In Syed Bashir-Ud-Din Qadri Vs. Nazir Ahmed Shah and others, (2010) 3 SCC 603, the Hon'ble Supreme Court has held that purpose of the Act is to enable the disabled/physically challenged person to lead life of purpose and human dignity. The Hon'ble Supreme Court therein granted the petitioner consequential benefit of continuity in service with all notional benefits since he had been disengaged wrongfully.
11. In Government of India through Secretary and Another vs. Ravi Prakash Gupta and another, (2010) 7 SCC 626, the Hon'ble Supreme Court held that the object to the Act was (i) integrate persons with disabilities into social mainstream,
(ii) lay down a strategy for comprehensive development and programmes and services and equalization of opportunities for ::: Downloaded on - 24/03/2022 20:12:09 :::CIS 8 persons with disabilities, and for their education, training, employment and rehabilitation amongst other responsibilities, (iii) .
give effect to proclamation on full participation and equality of people with disabilities in Asian and Pacific regions.
12. As held by the Hon'ble Supreme Court, the benefits of the provision of the Act are in addition to the other benefits which an employee can be entitled under service conditions. Therefore, the claim of the petitioner, at the first place, husband of the petitioner, could not have been ordered to be retired from the service and thereafter the benefits, as contemplated under the Act ought to be extended to him in terms of Section 47 of the Act and in case it was found that the husband of the petitioner was not suitable to hold the post he was holding, prior to his disability, then he ought to have been shifted to some other post to the same pay scale and service benefits. However, in case it was not possible to adjust the husband of the petitioner against any post, then he was to be kept on supernumerary post until suitable post was available or till the time he could have attained the age of superannuation.
13. Having failed to do so, the action of the respondents obviously in retiring the petitioner and thereafter not granting him any benefit, as contemplated under the Act, cannot be countenanced.
::: Downloaded on - 24/03/2022 20:12:09 :::CIS 914. Consequently, we find merit in this petition and the same is accordingly allowed. The respondents are directed to pay .
the due and admissible unpaid salary to the petitioner w.e.f.
March, 2014 to 28.11.2015 alongwith 7.5 % interest.
15. As regards plea of the petitioner for grant of employment assistance by way of compassionate appointment and claim of family pension, we leave it open to the petitioner to file a representation to this effect with respondent No. 2 and we have no doubt in our mind that in case such representation is made within four weeks from the date of decision, the same shall be considered sympathetically by the said respondent by passing a detailed and reasoned order.
16. The petition is disposed of accordingly, leaving the parties to bear their own costs.
For compliance, to come up on 17 th May, 2022.
( Tarlok Singh Chauhan) Judge ( Chander Bhusan Barowalia ) Judge 24 th March, 2022 (raman/CS) ::: Downloaded on - 24/03/2022 20:12:09 :::CIS