Himachal Pradesh High Court
Pardeep Kumar Gautam vs State Of H.P. & Anr on 27 March, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No. 6206/2020 Decided on: 27.3.2024 Pardeep Kumar Gautam .....Petitioner .
Versus
State of H.P. & anr. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1Yes For the petitioner: Mr. Karan Singh Parmar, Advocate.
For the respondents: Mr. Anup Rattan, A.G. with Mr. Ramakant Sharma, Ms. Sharmila Patial, Addl. A.Gs. and Mr. Raj r Negi, Dy.A.G. ____________________________________________________________________ Justice Tarlok Singh Chauhan (oral) The petitioner, despite being disabled has not been allowed to continue to work till the age of 60/62 years only on the ground that at the time of his induction into service, he was not disabled, whereas his counterparts have been extended said benefit. Aggrieved by action of the respondents, the petitioner has filed the instant petition for grant of following substantive reliefs:-
"i) That the impugned office order dated 31-12- 2018, notifications dated 30.8.2018 and office order dated 11.9.2018 may kindly be quashed and set aside and the applicant may be allowed to work till the age of 60/62 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 02/04/2024 20:32:11 :::CIS 2
years and the respondents may be directed to rectify the notification (Annexure A-) and to extent the benefit of the notification to all persons belonging to physically .
handicapped category as defined under the Act/State of Himachal Pradesh.
ii) That in case the applicant is retired without giving the benefit of enhancement of age, and in case this Hon'ble Tribunal allow the original application the applicant may be held entitled to all consequential benefits."
2 The petitioner joined the respondent-Department on 18.1.1985. It was during the course of the duties that the petitioner sustained injuries and was rendered physically handicapped to the extent of 42%. On 11.9.2018, the respondent-Department issued a notice to the petitioner indicating the retirement of the petitioner on 31.12.2018. The petitioner immediately represented to the competent authority to extend him benefit of enhancement of the age, which was being provided to the blind persons who also fall within category of physically handicapped persons as defined by the State Government and otherwise provided for under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, "the Act of 1995").
3 Since the representation was not being decided, the petitioner approached the Tribunal and vide order dated ::: Downloaded on - 02/04/2024 20:32:11 :::CIS 3 21.11.2018, the competent authority was directed to decide the representation of the petitioner within two months.
.
4 The long and the short of the matter is that thereafter the respondents considered the claim of the petitioner and vide order dated 31.12.2018 rejected the claim by according following reasons:-
"And whereas vide notification dated 29.03.2013, which was challenged by the respective applicant in OA No. 1004/2015 the State Government has infact enhanced the retirement age of the blind Government Servants from 58 years to 60 years keeping in view the various factors including the hardships of the blind persons as being faced by them, without mentioning or giving any further participation to any other category of disabled or physically handicapped persons. Hence, the above notification did not in any way and manner create any legally enforceable right in favour of the present applicant to claim for enhancement in his retirement age from 58 to 60 years on the basis of his having been suffered with the physical disability that too at the very fag end of his retirement on attaining the age of his superannuation of 58 years which was scheduled on 31-12-2018, is not legally sustainable.
And whereas, since the present applicant had also not initially been appointed against the post reserved for the Physically Handicapped Category, nor he was suffering with any kind of physical disability at the time of his initial appointment in the Department and as such, the facts of his case are otherwise altogether different from ::: Downloaded on - 02/04/2024 20:32:11 :::CIS 4 the facts of the case of Shri Krishan Chand, respondent in CWP No 1577/2018 (applicant in OA No 1004/2015), and are thus, not at all comparable.
.
And whereas in view of the above detailed factual position and record, the undersigned does not find it administratively possible and convenient to accede to the request of the applicant to allow for enhancement of the age of his retirement from 58 to 60 years. The request of the applicant cannot be acceded to and as such the same is rejected. The applicant is directed to be superannuated on attaining the age of his retirement of 58 years as per rules on 31-12-2018.
Now, therefore, keeping in view all the aspects of the case and in view of the detailed observations made in the foregoing paras above, the representation of the applicant is, therefore, disposed of in terms of the above decision. The copy of the above decision be also supplied to all the concerned including the applicant for information and further necessary action."
5 The respondents have filed their reply, wherein they have sought to justify their action by what has been recorded in the rejection letter as quoted above.
6 We have heard the learned counsel for the parties and have also gone through the material placed on record.
7 At the outset, we may express our utmost dismay and dissatisfaction how in such kind of sensitive issue, as involved in the instant petition, has been dealt with by the ::: Downloaded on - 02/04/2024 20:32:11 :::CIS 5 respondent No.2 i.e. Director, Health Services, little realizing or even understanding why the Legislature had thought it proper .
to introduce the Act of 1995 at the first place and thereafter repealed the same by Right of Persons with Disability Act, 2016 (for short, "the Act of 2016). Here, it shall be apt to reproduce Section 2 and Section 47 of the Act of 1995, which read as under:-
"2. Definitions In this Act, unless the context otherwise requires,
-
(a) to (d)..............................
(e) "Cerebral palsy" means a group of non-progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, peri-natal or infant period of development;
(f) to (h).............................
(i) "disability" means-
(i) to (iv).......................
(v) locomotor disability;
(vi) to (vii).....................
(j) ..................................
(k) "establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;
(l) to (n).............................
(o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy."
(p) to (s)..............................
::: Downloaded on - 02/04/2024 20:32:11 :::CIS 6(t) "persons with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;
(u) to (v)..............................
.
(w) "rehabilitation" refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels;
"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."
8 What led to enact the Act of 1995 has been aptly reproduced in paras 8 and 9 of the judgment of the Hon'ble Supreme Court in Kunal Singh vs. Union of India, (2003) 4 SCC 524, which read as under:-
"8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in ::: Downloaded on - 02/04/2024 20:32:11 :::CIS 7 national life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the 'Meet to Launch the Asian and Pacific Decades of Disabled .
Persons' was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure 'full participation and equality of people with disabilities in the Asian and Pacific Regions'. This Meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons. 9. 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 ::: Downloaded on - 02/04/2024 20:32:11 :::CIS 8 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."
9 It is unequivocally clear from the language of Section 47 of the Act of 1995 that there was statutory obligation on the employer to protect an employee acquiring disability during service.
10 As observed above, Act of 1995 has been repealed by Act of 2016, which gives wider ambit when compared Section 47 of the Act of 1995 with Section 20 of Act of 2016.
11 The Act of 1995 was enacted to give effect to the 'Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region' to which India is a signatory. This was so observed by three-Judge ::: Downloaded on - 02/04/2024 20:32:11 :::CIS 9 Bench of Hon'ble Supreme Court in Ravinder Kumar Dhariwal vs. Union of India, (2023) 2 SCC 209. It shall be .
apt to reproduce relevant observations as contained in paras 35 and 36 thereof, which read as under:-
35. The PwD Act was enacted to give effect to the 'Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region' to which India is a signatory. In April 2002, the Economic and Social Commission for Asia and the Pacific proclaimed the decade (1993 -2002) as the Asian and Pacific Decade of Disabled Persons. The proclamation aimed to promote the human rights of disabled persons by providing an accessible environment, social security, safety nets and employment, and sustainable livelihoods, premised on equality and non-discrimination. Chapter VII of the PwD Act is titled 'Affirmative Action', and Chapter VIII is titled 'Non- Discrimination'. Sections 42 and 43 in Chapter VII stipulate that the appropriate Governments must formulate schemes to provide aids and preferential allotment of land to persons with disabilities.
36. Sections 44 to 47 in Chapter VIII provide for special measures in transportation, roads, built environment and employment for persons with disabilities. For instance, Section 44 states that special measures must be taken to make transport vehicles such as buses and trains, and toilets in such transport vehicles accessible to persons with disability. Section 45 stipulates that the appropriate government must endeavour to, inter alia, make walking on the roads for disabled persons more accessible by installing auditory signals, and engraving on the zebra crossing. Section 46 provides that a built-in environment, conducive to persons with disabilities must be provided. While Sections 44 to 46 impose positive obligations on the State to reasonably accommodate persons with disabilities, Section 47 imposes both positive and negative obligations on ::: Downloaded on - 02/04/2024 20:32:11 :::CIS 10 the Government. Sub-sections (1) and (2) of Section 47 state that the government employer must not terminate, demote or deny promotion on the ground of disability. The proviso provides a positive obligation on the employer that if the post is not .
suitable to the employee after acquiring disability, then he could be shifted to another post with the same pay and service benefits. However, if it is not possible to adjust the employee against any post, then he may be kept on a supernumerary post until he obtains superannuation.
12 What are facets of non-discrimination that guided Act of 1995 have been enumerated in paras 40 and 41 of the judgment, which read as under:-
40. The facets of non-discrimination that guide the PwD Act are threefold: (i) right to formal equality, where no person shall be discriminated based on her disability; (ii) affirmative action in pursuance of substantive equality under Section 33; and (iii) reasonable accommodation of persons with disabilities such as provided under Section 47. There may be no specific provision in the PwD Act - unlike the RPwD Act - which provides persons with disability the right of non-discrimination. However, since the principle of substantive equality (of providing equal outcomes through affirmative action and reasonable accommodation) is premised on the principle of non-
discrimination, there is no reason to hold that the principle of non- discrimination, of treating every person equally irrespective of her disability does not guide the entire statute.
41. The headings of all the provisions in Chapter III of the PwD Act use the phrase 'non-discrimination'. Section 44 reads, non- discrimination in transport; Section 25 reads as 'non- discrimination on roads'; Section 46 reads as 'non- discrimination in the built environment'; and Section 46 reads as 'non- discrimination in Government employment'. As ::: Downloaded on - 02/04/2024 20:32:11 :::CIS 11 discussed above, all these provisions are premised on the principle of reasonable accommodation in public places and places of employment. The intent behind using the phrase 'non- discrimination' in the marginal note is to emphasise that .
reasonable accommodation is a facet of equality and non- compliance with the principle of reasonable accommodation would amount to discrimination. By no stretch of imagination, can it be said that the principle of non-discrimination is limited to Section 47 of the PwD Act. Section 47 only provides the right of non- discrimination with regard to specific forms of discrimination during the course of employment. The general right against discrimination runs through the entire statute.
13 We need only remind the respondents that both legislations were enacted to promote the human rights of disabled persons by providing an accessible environment, social security, safety nets and employment, and sustainable livelihoods, premised on equality and non-discrimination, for which an affirmative action was required from the respondents.
14 Therefore, the claim of the petitioner could not have been rejected on the ground that he had not initially been appointed against the post reserved for the physically handicapped category nor had he been suffering with any kind of physical disability at the time of his initial appointment and such fact is absolutely inconsequential.
15 Once the petitioner could not have been discriminated with his counter parts, there was no question of ::: Downloaded on - 02/04/2024 20:32:11 :::CIS 12 there being any administrative possible and convenient to accede to the request of the petitioner to allow him to work till .
the age of 60 years as a right has been crystallized in favour of the petitioner, which ought to have been conceded to by the respondents rather than having driven him to an otherwise avoidable and unwarranted litigation.
16 As regards the benefit of age being extended only to
blind employee(s) vide notification dated 20.9.2013, the
notification itself
r is discriminatory. In coming to such
conclusion, we are supported by the judgment of the Hon'ble Supreme Court in Civil Appeal No. 8855/2014, titled as State of Punjab vs. Bhupinder Singh alongwith connected matters, decided on 16.9.2014, wherein while dealing with an identical issue, it was held as under:-
"The issue, which arises for consideration in this batch of cases, pertains to the question, whether the benefit of extension in service from 58 years to 60 years granted to blind or visually impaired employees of the State Government, should be extended to persons suffering from other disabilities mentioned under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 'Disabilities Act'). 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 ::: Downloaded on - 02/04/2024 20:32:11 :::CIS 13 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 recognised 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."
17 Accordingly, the petition succeeds and office orders dated 31.12.2018 and 11.9.2018; and notification dated 30.8.2018 are quashed and set aside. The petitioner is permitted to continue in service till the age of 60 years as its counterparts and further held him entitled to all actual consequential benefits.
18 The petition is allowed in the aforesaid terms.
Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge (Sushil Kukreja) 27.3.2024 Judge (pankaj) ::: Downloaded on - 02/04/2024 20:32:11 :::CIS