Gujarat High Court
Babubhai Raghabhai Chaudhary vs Dist Primary Education Officer on 20 February, 2024
NEUTRAL CITATION
C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17064 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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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BABUBHAI RAGHABHAI CHAUDHARYBABUBHAI RAGHABHAI
CHAUDHARY & ANR.
Versus
DIST PRIMARY EDUCATION OFFICER & ORS.DIST PRIMARY
EDUCATION OFFICER
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR RAJESH P MANKAD(2637) for the Petitioner(s) No. 1.1
MS NIRALI SARDA AGP for the Respondent(s) No. 1,2,5
MR PRANAV V SHAH(2516) for the Respondent(s) No. 4,6
RULE SERVED for the Respondent(s) No. 3
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NEUTRAL CITATION
C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 20/02/2024
ORAL JUDGMENT
1. By way of present petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed the following reliefs:-
"(A) This Hon'ble Court be pleased to allow present petition, be pleased to declared that respondents action of compulsorily retiring the petitioner is wholly illegal and unjustified and further be pleased to issue a werit of mandamus or any other appropriate order or direction quashing and setting aside the order dated 21.1.2004 compulsorily retiring the petitioner at ANNEXURE - "A".
(B) The Hon'ble Court be pleased to direct the respondents to calculate and release all the service benefits including salary and other perks, second higher pay scale and/or promotion to the Higher post as per the Policy prevailing at the relevant time to the petitioner for the period April - 1999 till the date of superannuation with interest at commercial rate within time bound schedule. (C) The Hon'ble Court be pleased to direct the respondents to fix and release the pension of the petitioner since he has already crossed the age of superannuation on 20-5-2011, considering him as in continuous service and be pleased to direct the respondents to undertake and complete the said exercise within the time bound schedule and also make the payment accordingly.
(D) Pending final disposal of the present petition, the Hon'ble Court may be pleased to direct respondents, by way of interim relief to order the respondent to notionally fix the salary of the petitioner from April - 1999 till his date of superannuation i.e. 20-5-2011 and accordingly fix his pension with specific direction to make payment Page 2 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined accordingly with interest at commercial rate within the time bound schedule.
(E) Any other and further orders which this Hon'ble Court deems just and proper to meet the ends of justice may kindly be granted."
2. Brief facts of the present petition are, in nutshell, as under:-
2.1 It is the case of the petitioner that he was appointed as teacher with effect from 21.07.1977 and after almost 22 years of service, he was suffering from paralytic stroke and he was unable to perform his duty as a teacher because he lost his voice and, therefore, he remained on leave.
2.2 It is also the case of the petitioner that the respondent/s issued notice for unauthorized leave and called for explanation and remained present before the medical board. That because of disability, the petitioner could not remain personally present in time before the medical board. That the respondents have initiated departmental inquiry against the present petitioner and in the inquiry, the petitioner has accepted his negligence and the charges levelled against him and, therefore, after considering these facts, the respondent - District Primary Education Officer Page 3 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined passed an order dated 21.01.2004 which is impugned in this petition whereby the petitioner was ordered to compulsory retirement from the service without their being any retiral benefits. It is further the case of the petitioner that due to disability, the petitioner could not personally present before the medical board and, therefore, the medical board has intimated the petitioner to remain present on 16.10.2007 for physical examination and after physical examination, the medical board issued certificate and certified that the petitioner is not fit for duty as a teacher. Despite of this fact, the departmental inquiry was held and thereafter he was removed from the service by the impugned order which is under challenge in this petition.
3. This Court (Coram: Hon'ble Mr.Justice Anant S. Dave, while admitting the petition, has passed the following order.
"Heard the learned counsel for the petitioner.
Learned counsel for the petitioner has relied upon Section 47 of the Persons with Disabilities [Equal Opportunities, Protection of rights and Full Participation] Act, 1995 with regard to non-discrimination in government employment and procedure to be followed by the establishment of the Government in case of an employee who acquired disability during service. Learned counsel for the petitioner has also relied upon the decision of the Apex Court in the case of Bhagwan Das Vs. Punjab State Electricity Board, reported in (2008) 1 SCC 579 and the decision of the Page 4 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined Madras High Court in the case of K. Meenal Vs. Appointing Authority, DDMS reported in 2011 (3) LIN 283 (Mad.) in support of his submission that the claim of the petitioner is restricted qua notional benefit s far as the actual superannuation date of the petitioner is concerned had he not been retired compulsorily on 21.1.2004.
In view of the above, issue notice returnable on 30.11.2011.
Direct service is permitted."
4. Heard Mr. Rajesh Mankad, learned counsel appearing for the petitioner, Ms.Nirali Sarda, learned Assistant Government Pleader appearing for respondent - State Authorities and Mr.Pranav Shah, learned counsel appearing for respondents No.4 and 6.
5. Mr. Rajesh Mankad, learned counsel appearing for the petitioner has submitted the same facts which are narrated in the memo of petition and has also submitted that the petitioner has put up almost 22 years of his service as unblemished career of teacher, however, during the course of his service, he sustained paralytic attack and he was suffering permanent disability in a nature of unable to walk and speak. He has submitted that on account of his illness, the petitioner was not remained present during the departmental inquiry and as the Page 5 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined petitioner was not in a position to defend himself and present before the inquiry officer, the departmental inquiry was proceeded exparte and hence the impugned order came to be passed by the District Primary Education Officer, which requires to be quashed and set aside. He has submitted that the petitioner was remained present before the medical board examination and issued certificate to the effect that the petitioner is not fit for duty and, thereafter, the petitioner has made representation before the respondent - authority however the respondent - authority has not considered the case of the petitioner despite of the fact that the disablement certificate was issued by the medical examination board. He has submitted that the petitioner is deprived of his legitimate right of defending his case before the authority and the same is breach of principles of natural justice. Mr.Mankad, learned counsel has further submitted that in similar set of facts, this Hon'ble Court has considered the case of the employee and granted benefits in the case of Sivram Shripat Gambhir Vs. State of Gujarat reported in 2014 (1) GLR 305 and also quashed and set aside the order of compulsory retirement. He has referred to and relied Page 6 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined upon the decision of the Hon'ble Supreme Court in the case of Bhagwan Das Vs. Punjab State Electricity Board reported in (2008) 1 SCC 579. He has also relied upon the decision of the High Court of Madras in the case of K. Meenal Vs. Appointing Authority, DDMS, Headquarters, ATNK & K Area, Island Grounds, Chennai - 600009 and others. He has urged that the present petition deserves to be allowed and the impugned order which is under challenge in this petition deserves to be quashed and set aside.
6. Mr.Pranav Shah, learned counsel appearing for respondents No.4 and 6 has objected the petition and submitted that the petitioner has accepted all the charges leveled against him during the departmental inquiry and after considering all these facts, the petitioner was rightly removed from the services by passing the order of compulsory retirement. He has submitted that the petitioner had approached the respondent - authority at very belated stage and, therefore, on the ground of delay and latches, the present petition is required to be dismissed. Mr.Shah, learned counsel appearing for respondents No.4 and 6 has referred to and relied upon the affidavit-in-reply filed by one Page 7 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined Jamanuben L. Chorya, District Education Officer, District Panchayat, Tapi - respondent No.6. The relevant paragraphs of the affidavit-in-reply are as under:-
"I further say that similarly, as stated herein above, the impugned order passed on 21-1-2004. By the said order, the petitioner was compulsorily required to retire from the service after following all the relevant procedure prescribed by the relevant provisions of the Gujarat Panchayat Civil Service (Disciplinary and Appeal) Rules, 1997, Bombay Primary Education Act, 1949 and the Bombay Civil Service Rules, by which the services of the petitioner was governed. I say that pursuant to the said order, the petitioner was deemed to have retired from service with effect from 21-1-2004 and, therefore, the order which is impugned in this petition stood implemented from 21-1-2004. I say that consequent to the said order, the post of a teacher which was held by the petitioner had fallen vacant and in order to see that the academic career of the student in the school does not suffer, the said post was also filled in due course and all concerned had treated the petitioner to have retired from service with effect from 21-1-2004. The petitioner, therefore, cannot be permitted to put the clock back after a long lapse of a period of more than 7 years. This petition is, therefore, liable to be rejected in limine on this ground as well.
6. In addition to the aforesaid grounds, the petition is liable to be rejected in limine also on the ground that the services of the petitioner were governed by the provisions of the Gujarat Panchayat Civil Service (Disciplinary and Appeal) Rules 1997 (hereafter referred to as "The Rules"), Bombay Primary Education Act, 1949 (hereafter referred to as "The Act") and the Bombay Civil Services Rules (hereafter referred to as "the B.C.S.R."). I say that all the proceedings of enquiry against the petitioner were conducted in accordance with the provisions of the said Act and the Rules and after following requisite procedure prescribed by the said Act and the Rules and after following requisite procedure prescribed by the said Act and the Rules, the though notices requiring the petitioner to submit his explanation or make any representation Page 8 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined against the intended action, were served, the petitioner did not respond to any of the said notices, nor did he make any representation against the intended action at any stage nor did he claim any relief or right under the relevant provisions of the Act of 1995; and it is only after the expiry of a period of more than 7 years from the date when he is required to compulsorily retire, he has woke up from the slumber and approached this Hon'ble Court by filing this petition challenging the said order on the basis of the provisions of altogether a different enactment. The reason is obvious and does not require to be elaborated in this affidavit. I, therefore, submit that this petition is liable to be rejected in limine on this ground as well.
Now, adverting to the facts of the present case, I say that the conduct of the petitioner throughout the proceedings till the impugned order was passed is relevant; and speaks volumes about his intention to misuse the process of law and process of Court under the guise of be being a handicapped person. Following few facts wold be relevant to the present purpose. The petitioner is, admittedly, suffering from acute paralysis and was not able to speak, write or walk since the year 1997-98. He was, therefore, not able to discharge his duties at all as a teacher, with the result that the students of the school where he was working as such suffered loss of proper teaching and educating. During the inspection of the school by the Education Inspector from time to time during the years 1997-98 to 2000-01, the petitioner was asked to produce the requisite certificate regarding his disability from the Civil Surgeon and/or Medical Board appointed by the Government but he did not care to do so. The petitioner had taken medical leave for a period of in all 149 days during the period from 23-11-1998 to 31-3-1999. The Education Inspector had made several reports against the petitioner, as he was found either absent from duty or unable to discharge his duties as a teacher. The petitioner was asked to produce medical certificate from the Medical board vide a communication dated 11-12-2000, but he did not comply with the said requirement despite repeated requests and reminders. In the meanwhile, the petitioner had also used one of the rooms of the school as his residence and thus, the number of class-rooms stood reduced, with the result that the students were required to be accommodated in the remaining rooms. Since the petitioner did not respond to the repeated requests and reminders made by the competent authority from time to Page 9 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined time and did not produce the medical certificate, did not vacate the room of the school and could not discharge his duties properly, after following requisite procedure, a departmental enquiry was held against him by the Enquiry Officer appointed by the District Panchayat. The petitioner appeared before the Departmental Enquiry Officer on 30-8- 2003, his statement was recorded by the Departmental Enquiry Officer on the same day wherein he admitted that he is not doing any teaching work; that he has not appeared before the Medical Board; that he is taking medicine, but he not obtained any certificate and is not able to produce the same; that he is residing in one of the rooms of the school; and that he did not want to say anything more than what he has stated above and that he does not want to make any representation or produce any documentary or oral evidence in his defence.
I further say that thereafter, after following requisite procedure regarding holding of enquiry and submitting report, the Departmental Enquiry Officer submitted his report with a covering letter dated 18-9-2003 to the District Primary Education Officer, Surat. By the said Enquiry Report, the Enquiry Officer held the petitioner guilty of all the three charges viz. (1) That he was not performing his duty as a teacher, 92) That he did not produce physically fitness certificate from the Medical Board even though he was suffering from serious illness and (3) That he had unauthorisedly converted a classroom of the school into his residence.
I further say that thereafter, the District Primary Education Officer, Surat served a showing cause notice dated 24-12- 2003 requiring the petitioner to show cause as to why he should not be required to compulsorily retired from service and though the said notice was duly served to the petitioner in person on 2-1-2004, the petitioner neither submitted his representation not did he show any cause in response to the said notice. The District Primary Education Officer, Surat, therefore, passed the impugned order on 21-1-2004 and it was served by the Education Inspector on 29-1-2004; in person on the petitioner. The Education Inspector had submitted a report in writing in that behalf on 29-1-2004 to the District Primary Education Officer, Surat.
I further say that in law, therefore, the said order stood executed on the receipt of the said order by the petitioner Page 10 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined on 29-1-2004; and since the petitioner did not challenge the said order for all these years, he cannot be permitted to challenge the same after the lapse of more than 7 years during which period the equities have changed to a large extend and it is now not possible to put the clock back.
I further say that it was after the said order was passed in the petitioner stood retired from service; the petitioner woke up from the slumber and appeared before the Standing Medical Board on 1/16-10-2007. I say that in the said certificate, the Board has clearly stated that he had examined the petitioner and found that he was not fit for duty as teacher.
As is amply clear from the document submitted by the petitioner himself, he was compulsorily retired from service on disciplinary grounds on 21-1-04, which he never challenged. He has obtained physically handicapped certificate on 16-10-2007 and now through this petition he is trying to use this certificate and provisions of The Persons with Disabilities Act 1995 to his benefit by retrospective application by craving for sympathy of this Hon'ble Court."
7. Against the affidavit-in-reply, the petitioner has also filed affidavit-in-rejoinder whereby the petitioner, by reiterating the averments made in the petition, has contended that the order passed by the respondent - authority is against the principles of natural justice and also stated that he was not in a position to defend the case at the relevant point of time due to paralytic and, therefore, he has not remained present before the Medical Examination Board but on subsequent date fixed by the Medical Examination Board, he was present and after examination, the Page 11 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined Medical Officer has opined that he was not fit for duty. It is also stated that so far as delay and latches is concerned, the petitioner has explained the circumstances and as and when such circumstances is permitted, a legal notice came to be issued. The said facts were further counted by filing further affidavit by respondent no.6 and it is stated that the petitioner directly approached this Court without approaching the concerned statutory authority though an alternative remedy is available and without approaching the concerned statutory authority, the petitioner is not entitled to avail any reliefs as prayed for.
8. Ms.Nirali Sarda, learned Assistant Government Pleader appearing for the respondent - State Authorities has orally submitted that the concerned respondent authority has not made any proposal till date to the respondent - State Authority and therefore the respondent - State Authority is unable to decide the case of the petitioner and as and when such proposal is made by the concerned respondent - authority, appropriate decision shall be taken by the respondent - State Authority. She has opposed the petition and submitted that the Court may pass Page 12 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined appropriate order.
9. The controversy involved in the present petition is in narrow compass that whether the impugned order passed by respondent No.1 is sustainable in the eyes of law and the facts of the present case considering the disability sustained by the petitioner during the course of the service and whether the impugned order for compulsory retirement of the petitioner from the service is sustainable or not.
10. Considering the submissions canvassed by the learned counsel appearing for the respective parties and considering the material on record and perused the affidavit-in-reply and the affidavit-in-rejoinder, it appears that the petitioner was appointed as teacher with effect from 21.07.1977 and after almost 22 years of service, he was suffering from paralytic and was unable to perform his duty as a teacher because he lost his voice and, therefore, he remained on leave. It appears that the concerned respondent issued notice for unauthorized leave and called for explanation and remained present before the medical board, but because of disability, the petitioner could not remain Page 13 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined personally present before the medical board. That the respondents have initiated departmental inquiry against the petitioner and after considering such facts, the respondent - District Primary Education Officer passed an order dated 21.01.2004 whereby the petitioner was ordered to compulsory retirement from the service without their being any retiral benefits. Prima facie it appears that due to disability, the petitioner could not personally present before the medical board because of the paralytic and, therefore, the medical board has intimated the petitioner to remain present on 16.10.2007 for physical examination and after physical examination, the medical board issued certificate and certified that the petitioner is not fit for duty as a teacher. Despite of this fact and without considering any materials, the respondent - authority has initiated the departmental proceedings and though the petitioner was unable to speak and unable to walk, without following the principles of natural justice and against the settled legal principles, the respondent - authority has passed an order of removal of the petitioner from the service, which is unjust, illegal and arbitrary and the same is not sustainable in the eyes of law. Page 14 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024
NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined It also appears from the record that during the pendency of the present petition, the original petitioner has expired.
11. In the case of Bhagwan Das (supra), the Hon'ble Supreme Court has held and observed in para - 17, 18 and 19 as under:-
"17. From the materials brought before the court by none other than the respondent-Board it is manifest that notwithstanding the clear and definite legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man on the Board's rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had himself asked for retirement from service and, therefore, he was not entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated 17.07.1996. The letter was written when a charge sheet was issued to him and in the letter he was trying to explain his absence from duty. In this letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for retirement.
18. Appellant No.1 was a Class IV employee, a Lineman. He completely lost his vision. He was not aware of any protection that the law afforded him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the concerned officers of the Board, to our mind, was depreciable.
19. We understand that the concerned officers were acting in what they believed to be the best interests of the Board.Page 15 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024
NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined Still under the old mind-set it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country. "
12. In the case of Sivram Shripat Gambhir (supra), this Court has held and observed in para - 11, 12 and 13 as under:-
"11. Besides above, at least when the disciplinary authority received the inquiry report and came to know about the insanity of the petitioner, it was expected of the disciplinary authority not to impose punishment but to confer upon the petitioner the benefits of pension and other retiral benefits, considering his qualifying service of more than 30 years.
12. Mental illness or the mental retardation is considered to be a disability as per Section 2 of The persons with Disabilities (Equal Proceedings Protection of Rights and Full Participation) Act, 1995 (for short the Act ). As per the provisions of Section 47 of the Act, the service of an employee suffering with such disability cannot be dispensed with. In case of Anil Kumar Mahajan V/s. Union of India reported in (2013) 7 SCC 243 Hon'ble Supreme Court has observed in para No.17, 18 and 20 as under:
"17. The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 'Act, 1995') was enacted in the year 1995 with the following statement of objects and reasons:
(i) to spell out the responsibility of the State towards the Page 16 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis nondisabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream."
18. Section 2(i) defines "disability":
2(i) "disability" means-
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) loco motor disability;
(vi) mental retardation;
(vii) mental illness;"
20. The appellant was appointed in the service of respondents as an IAS officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on 15th October, 2007. It is not the case of the respondents that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977. Therefore, even it is presumed that the appellant became insane, as held by the Inquiry Officer, mentally illness Page 17 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined being one of the disabilities under Section 2(i) of the Act, 1995, under Section 47 it was not open to the respondents to dispense with, or reduce in rank of the appellant, who acquired a disability during his service. If the appellant, after acquiring disability was not suitable for the post he was holding, should have been shifted to some other post with the same pay scale and service benefits. Further, if it was not possible to adjust the appellant against any post, the respondents ought to have kept the appellant on a supernumerary post until a suitable post is available or, until the appellant attained the age of superannuation whichever was earlier."
13. In light of the above and in view of the facts about insanity of the petitioner, emerging from the report of the inquiry at Annexure:B, the petitioner could be made entitled to regular pension and other retiral benefits for the qualifying service rendered by him till the date he started remaining absent from duty i.e. 10.01.2000, irrespective of the order of compulsory retirement passed against him."
13. After considering the aforesaid decisions and the impugned order of imposing major punishment whereby the petitioner was compulsorily retired from the service is very harsh and violative of principles of natural justice. Now, the percentage of disabilities is concerned, it is required to be considered on sympathetic ground and even the petitioner is also entitled the protection under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 2 and Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 read as under:-
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NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined "Section 2 - (a) "Appropriate Government" means,-
(i) In relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonment Act, 1924, the Central Government ;
(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) In respect of the Central Co-ordination Committee and the Central Executive Committee, the Central Government;
(iv) In respect of the State Co-ordination Committee and the State Executive Committee, the State Government;
(b) "Blindness" refers to a condition where a person suffers from any of the following conditions, namely:-
(i) Total absence of sight. or
(ii) Visual acuity not exceeding 6160 or 201200 (snellen) in the better eye with correcting lenses; or
(iii) Limitation of the field of vision subtending an angle of 20 degree or worse;
(c) "Central Co-ordination Committee" means the Central Co-ordination Committee constituted under sub-section (1) of section 3;
(d) "Central Executive Committee" means the Central Executive Committee constituted under sub-section (1) of section 9;
(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) "Chief Commissioner" means the Chief Commissioner appointed under subsection (1) of section 57;
(g) "Commissioner" means the Commissioner appointed Page 19 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined under sub-section (1) of section 60;
(h) "Competent authority" means the authority appointed under section 50;
(i) "Disability" means-
(i) Blindness;
(ii) Low vision;
(iii) Leprosy-cured;
(iv) Hearing impairment;
(v) Loco motor disability;
(vi) Mental retardation;
(vii) Mental illness;
(j) "Employer" means,-
(i) In relation to a Government, the authority notified by the Head of the Department in this behalf or where no such authority is notified, the Head of the Department; and
(ii) In relation to an establishment, the chief executive officer of that the establishment;
(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 and includes Departments of a Government;
(l) "Hearing impairment" means loss of sixty decibels or more in the better year in the conversational range of' frequencies;
(m) "Institution for persons with disabilities" means an institution for the reception. Care, protection, education, training, rehabilitation or any other service of persons with disabilities;
(n) "Leprosy cured person" means any person who has Page 20 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined been cured of leprosy but is suffering from-
(i) Loss of sensation in hands or feet as well as loss of sensation and paresis in the eye and eye-lid but with no manifest deformity;
(ii) Manifest deformity and paresis; but having sufficient mobility in their hands and feet to enable them to engage in normal economic activity;
(iii) Extreme physical deformity as well as advanced age which prevents him from undertaking any gainful occupation, and the expression "leprosy cured" shall be construed accordingly;
(o) "Loco motor disability" means disability of the bones, joints muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy,
(p) "Medical authority" means any hospital or institution specified for the purposes of this Act by notification by the appropriate Government;
(q) "Mental illness" means any mental disorder other than mental retardation;
(r) "Mental retardation" means a condition of arrested or incomplete development of mind of a person which is specially characterized by sub normality of intelligence;
(s) "Notification" means a notification published in the, Official Gazette;
(t) "Person with disability" means a person suffering from not less than forty per cent. of any disability as certified by a medical authority;
(u) "Person with low vision" means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device;
(v) "Prescribed" means prescribed by rules made under this Act;
(w) "Rehabilitation" refers to a process aimed at enabling Page 21 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels;
(x) "Special Employment Exchange" means any office or place established and maintained by the Government for the collection and furnishing of information, either by keeping of registers or otherwise, respecting-
(i) Persons who seek to engage employees from amongst the persons suffering from disabilities;
(ii) Persons with disability who seek employment;
(iii) Vacancies to which person with disability seeking employment may be appointed;
(y) "State Co-ordination Committee" means the State Co- ordination Committee constituted under sub-section (1) of section 19;
(z) "State Executive Committee" means the State Executive Committee constituted under sub-section (l) of section 19.
Section 47. (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."Page 22 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024
NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined
14. In light of the above and in view of the facts about the disability of the petitioner emerging from the certificate issued by the Medical Board, the petitioner could be made entitled to regular pension and other retiral benefits for the qualifying service rendered by him till the date from which he started remaining absent from duty, irrespective of the order of compulsory retirement passed against him.
15. For the reasons stated above, the petition is allowed. The impugned order dated 21.01.2004 is hereby quashed and set aside. The petitioner is held entitled to pension and other retiral benefits for qualifying service put in by him for almost 22 years i.e. from 1977 to 1999 irrespective of the order of compulsory retirement dated 21.01.2004 passed against him at Annexure A. The petitioner shall be entitled to such benefits with interest at the rate of 6% per annum from the date of filing of the petition till the petitioner is paid such benefits. The respondents are directed to calculate all the retiral dues and process pensionary papers of the petitioner and send the same to the respondent - State of Gujarat within a period of four weeks from the date of Page 23 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024 NEUTRAL CITATION C/SCA/17064/2011 JUDGMENT DATED: 20/02/2024 undefined receipt of such proposal from respondent No.1 - District Primary Education Officer in support of respondent No.6 failing which the petitioner is entitled to get interest at the rate of 9% per annum from the date of filing of the petition. As the petitioner has completed almost 20 years i.e. qualifying service as provided under the Gujarat Civil Service Rules, he is entitled to get pensionary benefits and since during the pendency of the present petition, the petitioner was expired and, therefore, the respondent - authority to process of the family pension as expeditiously as possible within a period of four months from the date of receipt of the order. All the benefits are to be paid to the members of the deceased petitioner as early as possible. Rule is made absolute accordingly. There shall be no order as to costs.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 24 of 24 Downloaded on : Fri Mar 01 21:37:16 IST 2024