Punjab-Haryana High Court
Mohinder Pal Garg And Ors vs Punjab State Power Corp. Ltd. And Ors on 1 May, 2017
Author: Jaswant Singh
Bench: Jaswant Singh
CWP No.23019 of 2016 #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.23019 of 2016
Date of Decision: 01.05.2017
Er. Mohinder Pal Garg and Ors.
....Petitioners
Versus
Punjab State Power Corporation Ltd and Ors.
....Respondents
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH
Present: Mr. Pawan Kumar, Sr. Advocate with
Mr. Vipin Kumar, Advocate for the petitioners.
Mr. Vinod S. Bhardwaj, Advocate for
Respondent Nos.1 & 2-PSPCL.
Mr. Gurminder Singh, Sr. Advocate assisted by
Mr. Jatinder Singh, Advocate for private respondent No.3.
JASWANT SINGH, J
1. Petitioners-Mohinder Pal Garg, Anil Kumar Gupta and
Vinod Kumar, who are working as Deputy Chief Engineers with the
Punjab State Power Corporation Limited (for short "PSPCL"), by
filing this writ petition are seeking a writ of Certiorari for quashing
the impugned order dated 28.10.2016 (P.12) issued by respondent
Nos.1 & 2 extending the age of retirement of Jagbir Goel-
respondent No.3 from 58 years to 60 years being physically
handicapped, however, without having any valid "Disability
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Certificate" as required under the provisions of Personal With
Disabilities (Equal Opportunities), Protection of Rights and Full
Participation Act, 1995 (for short "1995 Act"); with a further
directions to the respondents to promote them as Chief Engineer
(civil) with effect from the date, respondent No.3 was given the
extension in service; with further prayer to declare the Disability
Certificate of hearing impairment issued by Civil Surgeon, Patiala
dated 27.5.2015 (P.6) to respondent No.3 as illegal being not as
per the guidelines issued by the National Institute of Hearing
Impairment under the 1995 Act.
2. Learned counsel for the petitioners submits that the
impugned office order dated 28.10.2016 (P.12) thereby granting
the extension in retirement age of respondent No.3 from 58 years
to 60 years, on the basis of his alleged disability is legally
unsustainable as he is not suffering from the "Hearing Impairment"
as per the parameters laid down under the provisions of 1995 Act
as well as the guidelines issued thereunder.
Per contra, learned counsel for the respondents have
vehemently supported the impugned order by arguing that the
same does not require any interference by this Court while
exercising jurisdiction under Articles 226/227 of the Constitution,
taking into account the Disability Certificate dated 18.1.2017
issued by the Post Graduate Institute of Medical Education and
Research, Chandigarh (for short "PGIMER") in favour of
respondent No.3.
3. Heard learned counsel for the parties and perused the
paper book with their able assistance.
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CWP No.23019 of 2016 #3#
There is no dispute with regard to the service particulars
of the petitioners as well as respondent No.3 except the minimum
percentage of disability of respondent No.3, as required under the
provisions of 1995 Act and Instructions issued thereunder from
time to time for grant of extension in retirement age from 58 years
to 60 years. In due course, respondent No.3 was to retire on
31.10.2016 after attaining the age of superannuation i.e 58 years as
his date of birth is 09.10.1958; but since he has been granted the
extension in service for a period of two years i.e upto 31.10.2018
being a person with disability, on the basis of his Disability
Certificate dated 27.5.2015 (P.6) and thus the same has adversely
affected the petitioners as they were expecting further promotion
to the post of Chief Engineer occupied by respondent No.3.
4. To prove his disability, respondent No.3-Jagvir Goel while
submitting an application dated 14.10.2016 (P.5) sought extension
in retirement age from 58 years to 60 years, as required under
1995 Act and produced a Disability Certificate dated 27.05.2015
(P.6) issued by Medical Board of the office of Civil Surgeon,
Patiala showing him to be Audiological Handicap to the extent of
74.58%. After consideration of the same, respondent No.1-PSPCL
passed the impugned order dated 28.10.2016 (P.12), the relevant
part of which reads as under:
"The Punjab State Power Corporation Limited under
the aforesaid Circular in order to extend the age of
retirement of Er. Jagvir Goel, Engineer in Chief,
Civil Design and Construction, PSPCL, Patiala (Code
No.102901, date of birth 09.10.1958) and is pleased
to modifies the office order no.457 dated 15.09.2016
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CWP No.23019 of 2016 #4#
by amending the same by extending the date of
retirement from 58 years to 60 years and
accordingly his date of retirement is being changed
from 31.10.2016 to that of 31.10.2018 on the
following condition:
The officer shall provide within the month i.e by
30.11.2016 disability certificate regarding hearing
impairment strictly in complying with GOP,
Department of Social Security and Women & Child
Development (Disability Branch) No.9/23/2015-3-
DC/506 dated 24th June, 2015 from the competent
authority designated by Punjab Govt.
The certificate should indicate clearly loss of
minimum sixty decibels in the better ear and
percentage of hearing disability.
In case the certificate is not produced within
stipulated time i.e by 30.11.2016, the extension so
granted shall be dispensed with forthwith.
This is being issued with the approval of competent
authority."
Apprehending the proposed extension in service to
respondent No.3, the petitioners submitted two representations
dated 07.10.2016 and 24.10.2016 (P.7 & P.8) by alleging that as per
the guidelines issued by the National Institute for Hearing
Handicapped under 1995 Act, the disability Certificate submitted
by respondent No.3 cannot be the basis for any extension, being
invalid as the same was procured on extraneous considerations,
thus, no extension in service from 58 years to 60 years could be
granted.
5. In order to decide the matter in controversy, it is
necessary to make a reference of the relevant provisions as
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contained in Government Circulars as well as 1995 Act and 1996
Rules framed thereunder. Clause 8(ii) of O.M dated 24.6.2015
(P.11) issued by the Govt. of Punjab (Department of Social Security
and Women and Child Development-Disability Branch) defines
the"Hearing Impairment" as under:
"Hearing Impairment means loss of sixty
decibels or more in the better ear in the
conversational range of frequencies."
Section 2 (a-ii),(i-iv),(l),(p) & (t) of 1995 Act read as under:
" 2. Definitions- In this Act, unless the context
otherwise requires-
(a) "appropriate Government" means-
(i) xxxx xxxxxxxx
(ii) in relation to a State Government or any
establishment wholly or substantially financed by that
Government or any local authority, other than a
Cantonment Board, the State Government;
(iii) & (iv) xxxx xxxxx
(i) "disability" means
(i) to (iii) xxxx xxxxxxx
(iv) hearing impairment
(v) to (viii) xxxx xxxx
(j) & (k) xxxx xxxxx xxxx
(l) "hearing impairment" means loss of sixty decibels
or more in the better ear in the conversational range of
frequencies;
(m to o) xx xxx xxx
(p)"medical authority" means any hospital or
institution specified for the purposes of this Act by
notification by the appropriate Government;
(q to s) xx xxxx xxxx
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(t) "person with disability" means a person suffering
from not less than forty per cent of any disability as
certified by a medical authority;
Rule 4 of 1996 Rules envisages issuance of Disability
Certificate to a person with disability as prescribed in different
Forms i.e Form II, Form III or Form IV applicable to different type
of disabilities. Rule 5 talks of review of a decision regarding issue
of or refusal to issue a Disability Certificate. Rule 6 lays down that
the Certificate issued under rule 4 to be generally valid for all
purposes and the same reads as under:
" 6. Certificate issued under rule 4 to be
generally valid for all purposes.- A certificate
issued under rule 4 shall render a person eligible
to apply for facilities, concessions and benefits
admissible under schemes of the Government and
of Non-Governmental Organizations funded by the
Government, subject to such conditions as may be
specified in relevant schemes or instructions of
Government etc, as the case may be."
It is apt to mention here that format for issuance of
Disability Certificate as provided in Form No.III prescribed under
Rule 4 of 1996 Rules was inserted by way of Notification dated
30.12.2009 w.e.f 01.01.2010.
6. A perusal of order dated 06.12.2016 passed by this Court
reveals that respondent No.3 had been asked by respondent No.1-
PPCL to seek a report regarding his disability from PGIMER
Chandigarh within a period of seven days and in furtherance
thereof, respondent No.3 requested PGIMER Chandigarh on
01.12.2016 for conducting necessary tests and issuance of a
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Disability Certificate. Accordingly, respondent No.3 was
examined by Dr. N. Banumathy-Audiologist, PGIMER, Chandigarh
on 15.12.2016 and his relevant findings are reproduced as under:
" Findings: Right ear: Wave V could be traced till 65 db nHL
Left ear: Wave V could be traced till 80 db nHL
CONCLUSION: R/E: Moderate hearing loss
L/E : Severe hearing loss
Sd/- 15.12.16
Audiologist: Dr. N. Banumathy"
It also transpires that Hearing Evaluation Report dated
15.12.2016 of respondent No.3 was examined as per the Minutes of
Meeting by three Doctors of PGIMER, Chandigarh headed by its
Chairman along with two members, on 19.12.2016 for issuance of
final Disability Certificate and the relevant part of the same on
record at page 152 of the paper book reads as under:
" The HOD Dr. Naresh Panda requested Dr. Jaimanti
Bakshi, Additional Professor in the Department on
5.12.2016 to kindly see the patient and conduct
necessary hearing tests on him. Mr. Jagvir Goyal
attended the ENT OPD on 15.12.2016 wherein he was
examined by Dr. Jaimanti Bakshi in detail and
subsequently referred for hearing tests which included
the puretone Audiometry, Impedence Audiometry,
Speech Recognition Test and the BERA Test.
Photocopies of the hearing evaluation tests are enclosed
for perusal. His evaluation tests have revealed that he
has got Severe Sensory Neural Hearing Loss on the Left
side (70/83 dB) and a sloping Sensory Neural Hearing
Loss on Right side (50/58 dB) (avg for 50 Hz, 2KHz, and 4
Khz).
The ABR done on 15.12.2016 shows a moderate hearing
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loss on right side and severe hearing loss on left side.
The case with all the relevant details may kindly be
referred to the Medical Disability Board of PGI for
final disability certification.
Sd/- (Prof. Naresh K. Panda) Sd/- (Dr.Jaimanti Bakshi) Sd/- (Dr. Banumathy N)
Chairperson 19.12.16" Member Member "
It is necessary to mention here that this Court vide order
dated 12.1.2017 directed the Director, PGIMER, Chandigarh for
issuance of Disability Certificate, in terms of Rule 4 of 1996 Rules,
in the required format and in compliance thereof, Certificate No.
8011 dated 18.1.2017 (on record at page 157 of the paper book)
was duly issued in favour of respondent No.3 in the format as
prescribed in Form No.III appended under Rule 4 of 1996 Rules (In
case of Multiple Disabilities), the relevant part of which reads as
under:
" POSTGRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH
CHANDIGARH
DISABILITY CERTIFICATE
Certificate No.8011 Date: 18.01.17
1. This is to certify that we have carefully examined Shri JAGVIR Goyal son of
SH. VED PARKASH GOYAL
Date of Birth: 09.10.1958 Age 58 years Male/female : Male
Central Registration No.201606265332 Sp. Clinic No. XXXX
Permanent resident of House No. 92, Maharaja Yadvindra Enclave The & Distt
Patiala, Punjab whose photograph is affixed above, and are satisfied that:
(a) The diagnosis in His/Her case is B/L S.N. Deafness. He/She is a case of Multiple
Disability. Extent of his/her permanent physical impairment/disability has been
evaluated as per guidelines for the disabilities ticked below, and shown against the
relevant disability in the table below:
Sr. Disability Affected part Diagnosis Physical/mental
No of Body disability (%)
.
1 Locomotor disability@ Xxxxx Xxxxx Xxxxxxx 2 Low vision/Blindness# Xxxxx Xxxxxx Xxxxxx 8 of 11 ::: Downloaded on - 06-05-2017 13:17:09 ::: CWP No.23019 of 2016 #9# Sr. Disability Affected part Diagnosis Physical/mental No of Body disability (%) .
3 Hearing impairment B/L Ears B/L S.N. Deafness 54%
Rt. Moderate, Lt Severe
Mental Xxxxx Xxxxxx Xxxxxx
4 Retardation/illness
5 Others Xxxxxx Xxxxxxx Xxxxxx
6 Total Xxxxx Xxxxxx xxxxxx
(b) In the light of the above, his/her overall permanent physical/mental impairment as per guidelines** as follows:
In figures 54% Percent, In words Fifty Four Percent
2. This condition is progressive/non-progressive/likely to improve/not likely to improve.
3. Reassessment of disability is:
i) Not necessary OR
ii) Is recommended/after Three Years xxxx months, and therefore this Certificate shall be valid till xxxxxxxx (DD/MM/YY)
4. The applicant has submitted the following documents as proof of residence:
Nature of Document Date of issue Details of authority issuing certificate Voter ID Card 27.08.2015 ECI, ERO, Distt Patiala, PB.
5. Signature and seal of the Medical Authority Name & Seal of Member Name & Seal of Member Name & Seal of Member Sd/- Prof. Ashok Gupta Sd/- Convenor Sd/- Chairman Deptt of Otolarynology Special Disability Board Med. Disability Board Member Special Medical Board PGIMER, Chandigarh PGIMER, Chandigarh Sd/-
Signature/Thumb impression in whose Favour disability certificate is issued. "
Emphasis supplied A perusal of clause 1(a) & (b) of the Disability Certificate clearly proves that respondent No.3 is a case of Bilateral Sensory Neural Deafness (B/L S.N. Deafness) and suffering from Multiple Disability to the extent of 54% and that is the reason that he has been issued the Disability Certificate in the format as prescribed in Form III (in case of Multiple Disabilities), appended under Rule
4 of 1996 Rules.
7. There is no dispute that as per the provisions of Rule 3.27 of the Punjab Civil Services Rules, Volume I Part I (for short "The 9 of 11 ::: Downloaded on - 06-05-2017 13:17:09 ::: CWP No.23019 of 2016 #10# CS Rules"), if a Government employee, who is suffering from any of the disabilities, not less than 40% as certified by Medical Authority then he shall retire at the age of 60 years instead of 58 years and the relevant part of the Rule 3.27 of the CS Rules in this respect reads as under :
" 3.27 Notwithstanding anything contained in rule 3.26, the date of retirement of a Government employee (other than a Group 'D' employee), who is suffering from any of the disabilities viz., blindness or low vision, hearing impairment, locomotor disability or cerebral palsy, shall be the date on which he attains the age of 60 years instead of 58 years:
Provided that whenever an appointing authority has reason to believe that such a Government employee is mentally or physically unsuitable to discharge the duties of the post held by him, it shall require him to appear before a Civil Surgeon for a medical check-up and his continuance in the Government service beyond the age of 58 years, shall be subject to being declared fit on such medical check-up."
Although, as per the guidelines (P.9) issued by the National Institute for The Hearing Handicapped for issuing of Hearing Disability Certificate (for Centers recognized by appropriate authority), the following parameter has been laid down:
"Hearing disability Certificate is issued as per the definition of hearing disability published in Persons with Disability Act. (PWD) 1995 which says that the hearing disabled person is one who has the hearing loss of 60 dB HL or more in the better ear for conversational range of frequencies."
However, consequent upon the issuance of Disability Certificate dated 18.1.2017 by the PGIMER, Chandigarh in favour 10 of 11 ::: Downloaded on - 06-05-2017 13:17:09 ::: CWP No.23019 of 2016 #11# of respondent No.3 being the competent Medical Authority as specified under Section 2 (p) of the 1995 Act, this Court has no option but to accept the same as a legal and valid Disability Certificate issued under Rule 4 of 1996 Rules. Consequently, for the present, the issue whether respondent No.3 is fulfilling the required parameters of "Hearing Impairment" and is a "person with disability" as defined under Section 2 (l) & (t) respectively of 1995 Act is closed and does not require any further consideration by this Court. However, the petitioners, if so chose and advised, may assail the Disability Certificate, if permissible, as per law.
In view of the aforesaid, this Court finds no merit in the present petition and the same is dismissed with the aforesaid observations.
May 1st, 2017 (JASWANT SINGH)
manoj JUDGE
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