Gujarat High Court
Union Of India & vs Jayesh Ramniklal Chauhan Son Of ... on 29 June, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, G.B.Shah
C/SCA/8578/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8578 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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UNION OF INDIA & 1....Petitioner(s)
Versus
JAYESH RAMNIKLAL CHAUHAN SON OF RAMNIKLAL CHAUHAN &
1....Respondent(s)
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Appearance:
MR RAVI KARNAVAT, ADVOCATE for the Petitioner(s) No. 1 - 2
MR PH PATHAK, CAVEATOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
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C/SCA/8578/2015 JUDGMENT
Date : 29/06/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. Rule. Mr. P.H. Pathak, learned advocate appearing for the respondent waives service of notice of Rule.
2. The petitioner herein has challenged the judgement and order dated 17.03.2015 passed by the Central Administrative Tribunal, Ahmedabad (hereinafter referred to as 'the Tribunal') in OA No. 39/2011 whereby the Tribunal allowed the application and directed the present petitioners to fix the respondent's pay in the scale of Rs. 1200 - 1800 on his absorption in the cadre of office clerk and to continue the same without any interruption in the corresponding pay scale with grade pay as per 6th Pay Commission subject to any penalty of reduction in pay or withholding of increment and to prepare a due drawn statement and to pay the arrears which accrue out of such exercise.
3. The case of the petitioners as set out in the petition is as under:
3.1 The respondent was initially appointed as Khalasi in the year 1989 in the pay scale of Rs. 750-940 and was promoted to the post of Khalasi/Helper in the payscale of Rs. 800-1150.
In the year 1994 he was promoted as Diesel Mechanic Grade III and thereafter as Diesel Mechanic Grade II in the pay scale of Rs. 1200-1800.
Page 2 of 7C/SCA/8578/2015 JUDGMENT 3.2 In the year 1996, the respondent was advised to stay
away from diesel, oil and other petroleum products due to skin ailment. The respondent was thereafter found suitable for alternative employment on the post of Electric Fitter (Train Lighting) Grade II in the pay scale of Rs. 1200-1800 by the screening committee initially. However the respondent was again called for screening wherein he is said to have given a declaration before the screening committee that he is willing to work on the post of Clerk in the pay scale of Rs. 950-1500(RP).
3.3 The respondent was accordingly posted as clerk in the said pay scale. The pay of the respondent was also protected at Rs. 1250/- + 10(PP). The basic plea of the respondent was that he was entitled for protection of the pay scale of Rs. 1200-1800 that was enjoyed by him prior to his medical unfitness in the post of Diesel Mechanic Grade -II which was turned down by the petitioners.
3.4 Therefore, the respondent preferred OA before the Tribunal seeking a declaration that on his absorption to the post of Junior Clerk on the ground of medical decategorisation, he is entitled to draw his pay on the same pay scale of the post of Diesel Mechanic Grade II which carries the pay scale of Rs. 1200 - 1800 and for a direction to the present petitioners to grant protection of the pay scale instead of protection of pay previously drawn by him.
4. Mr. Ravi Karnavat, learned advocate appearing for the petitioners has strongly contended that the order passed by Page 3 of 7 C/SCA/8578/2015 JUDGMENT the Tribunal is bad in law. He submitted that the Tribunal completely ignored the policy of the petitioners which categorically provides that the staff who get their cases recommended for a change of cadre on medical grounds will not get the benefit of these rules but will be treated as a staff transferred on their own request and therefore the rules framed in accordance with Section 47 of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act (hereinafter referred to as 'the Act') are not applicable in the instant case and accordingly the respondent could not have been granted the benefit.
4.1 Mr. Karnavat has drawn the attention of this Court to the certificate appended at page 69 to the petition which states the respondent shall be unfit for a post where he has to come in contact with diesel or other petroleum products. He submitted that the respondent on his own volition requested for the post of a lower grade though he was offered the alternative post of Electric Fitter (Grade II - Train Lighting) upon being declared as medically unfit in the category of diesel mechanic in accordance with the Act.
4.2 Mr. Karnavat has further drawn the attention of this Court to section 2(i) of the Act and submitted that the disability of the respondent does not fall under the definition of disability as provided under the said section. He submitted that the disability as per section 2(i) of the Act considers only blindness, low vision, leprosy cured and hearing impairment which is not the case of the respondent.
5. Mr. Pathak, learned advocate appearing for the Page 4 of 7 C/SCA/8578/2015 JUDGMENT respondent has strongly supported the impugned order passed by the Tribunal and submitted that the same having been passed in accordance with law does not call for any interference by this Court. He submitted that mere fact that the respondent has accepted the post of Junior Clerk in the pay scale of Rs. 950 - 1500 will not take away the right guaranteed to the respondent under section 47 of the Act.
6. At the outset it shall be relevant to peruse Section 47 of the Act and the same is reproduced hereunder:
"47. Non-discrimination in Government employments (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 his disability.
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."
7. From a perusal of section 47 of the Act as quoted hereinabove, it is amply clear that a person with disability shall be shifted to another post with the same pay scale and service benefits. Section 47 of the Act has also been duly incorporated in the Indian Railway Establishment Manual at Page 5 of 7 C/SCA/8578/2015 JUDGMENT paras 1303, 1305 & 1306. The Tribunal has rightly taken into consideration section 47 of the Act and the provisions laid down in the Indian Railway Establishment Manual. The Tribunal vide the impugned order has rightly observed that what is guaranteed under section 47 of the Act is the protection of the pay scale and service benefits and not merely fixing the pay in the alternative post at a stage corresponding to the pay which was drawn in the earlier post held by him before he was medically decategorised. Even otherwise it shall be wholly unjustified not to protect the respondent's pay as held by him on regular basis before he was medically decategorised. In fact it is borne out from the Act as well as the Manual that if the alternative post does not carry the requisite pay scale, a supernumerary post may be created in appropriate scale of pay and the employee be adjusted against the same which means it cannot be said that the employee is not entitled for protection of pay scale of the post held by him on regular basis. The contention regarding section 2(i) of the Act was not raised before the Tribunal and is raised for the first time in this petition. We are therefore in complete agreement with the reasonings adopted and findings arrived at by the Tribunal and do not see any reason for interference.
8. In the premises aforesaid, petition is dismissed. Rule is discharged. Interim relief, if any shall stand vacated.
(K.S.JHAVERI, J.)
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C/SCA/8578/2015 JUDGMENT
(G.B.SHAH, J.)
divya
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