Telangana High Court
Dr.S.G.R. Prakash vs Union Of India And 3 Others on 3 March, 2025
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+W.P.No.25762 OF 2022
% 03-03-2025
# Dr,S.G.R.Prakash, S/o.S.Gyama Sundaram.
.... Petitioner
Vs.
Union of India and others.
.... Respondents
!Counsel for the petitioner : Sri M.Srikanth
Counsel for the Respondents : Sri Gadi Praveen Kumar,
Learned Dy. Solicitor General of India
<Gist :
>Head Note:
? Cases referred:
2
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
W.P.No.25762 OF 2022
Between:
# Dr,S.G.R.Prakash, S/o.S.Gyama Sundaram.
.... Petitioner
Vs.
Union of India and others.
....
Respondents
ORDER PRONOUNCED ON: 03.03.2025
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No.25762 of 2022
ORDER:
This writ petition is filed seeking the following relief:
".....to issue a Writ, Order or direction particularly one in the nature of WRIT OF MANDAMUS by declaring the action of Respondent Nos.2 and 3 in not treating the period from 22/12/2016 to 11/09/2018 as on duty and not paying salary for the said period in accordance with the orders of the Court of Chief Commissioner for Persons with Disabilities Act Divyangan 2016 and further the action of the Respondents in seeking to recover Rs 1 78 647/ from the Petitioner and the action of Respondents in not paying arrears of MACP and Revision of Pay and the increments due to the Petitioner as illegal arbitrary and violative of Articles 14 16 and 21 of the Constitution of India and contrary to the Rights of Persons with 4 Disabilities Act 2016 more especially Sec 20 4 and further direct the Respondents to treat the entire period from 22/12/2016 to 11/09/2018 as on duty and pay salary accordingly and also release arrears under MACP by setting aside the orders of recovery dated 14/12/2020 with interest alias 12 percent ....".
2. The brief facts of the case are as follows :-
(i) The petitioner was initially appointed as a Clinical Assistant in the 3rd respondent Centre in the year 1991 and subsequently promoted to various posts. The petitioner while working as a Reader in 3rd respondent Institution suffered from brain stroke. After undergoing two brain surgeries at Yashoda Hospital, Secunderabad and after recovery, the petitioner submitted a joining report on 21.12.2016 along with the Medical Fitness Certificate issued by the competent authority. However, without allowing the petitioner to join duty, the respondents directed the petitioner to obtain a second opinion and accordingly, even after submission of the second opinion also, the petitioner was not allowed to join duty and was 5 referred to the Medical Board of Osmania Government Hospital for its opinion, which has issued a Medical Certificate on 15.09.2017 stating that "the candidate is suffering from right Hemiplegia with Aphasia, hence he is unfit for his duties".
(ii) Based on the said report, the respondents have declared that the petitioner is unfit for joining duty and, accordingly, he was asked to seek Invalidation Pension in terms of Rule 38(2) of CCS (Pension) Rules, 1972.
(iii) Challenging the said action of the respondent authorities, earlier the petitioner filed W.P.No.18510 of 2017 seeking reinstatement into service and subsequently, the petitioner withdrawn the said writ petition on 21.09.2017 and approached the Court of Chief Commissioner, New Delhi, which after hearing both sides, passed the Order vide Case No.8545/1023/2017, dated 20.07.2018, observing as follows :-
"After hearing both the Complainant and the Respondent, the Court felt that it was not at all necessary for the Respondent No.1 to set up a 6 Committee to examine the case of the Complainant for taking action on the recommendation of the said Committee. The Court also felt that there was also no need for the Respondent No.2 to refer the case of the Complainant for clarification regarding creation of a supernumerary post, to the Ministry of Finance, Dept. of Expenditure as it is clearly mentioned under Section 20(4) of the Rights of Persons with Disabilities Act, 2016 that no Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service;
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits.
Provided further that 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".
The Court observed that there is gross violation of Rights of Persons with Disabilities Act, 2016 by Respondent No.1. The Court directed Respondent No.1 and Respondent No.2 to facilitate the Complainant so that he can join duty within 30 days of issuance of this Order and pay all the outstanding dues to the Complainant till date and 7 submit a compliance report to the Court within 45 days of issuance of this Order."
(iv) Pursuant to the above order dated 20.07.2018 of the Court of Chief Commissioner, New Delhi, the petitioner was reinstated into service on 11.09.2018.
(v) After reinstatement, since the petitioner's pay has not been fixed in the revised pay scales and has not been paid the arrears of the Modified Assured Career Progression Scheme (MACP) along with increments, he made a representation seeking the said reliefs. While so, the respondent authorities issued an order dated 15.10.2020 declaring the period of absence of the petitioner from 22.12.2016 to 11.09.2018 as extraordinary leave and kept the petitioner's salary in a fixed deposit without releasing the same.
(vi) Based on the said order dated 15.10.2020, the Director General of Audit had issued proceedings dated 14.12.2020 alleging that though the petitioner was not eligible for extraordinary leave for the period from 22.12.2016 to 11.09.2018 and increments during the said 8 period for a sum of Rs.1,78,647/- was excessively paid to him, the same was directed to be recovered from the petitioner and, accordingly, the same was being recovered from his pay.
(vii) Aggrieved thereby, the petitioner has approached the Chief Commissioner. The Chief Commissioner vide order dated 02.09.2021 disposed of Case No.12683/1023/2021 observing as follows :-
"This Court concludes that the Complainant was not able to join duties because of any fault on his part, instead Complainant was deprived by the respondent from realizing his right to employment. Respondent deprived the complainant from attending duties by failing to abide by the mandate of Section 20(4) of RPWD Act, 2016.
This Court recommends that respondent shall follow the mandate of Section 20(4) in letter as well as in spirit. Respondent shall release the salary of the complainant for period starting from 22.12.2016 till 11.09.2019. For this period, complainant shall be considered on duty, instead of on 'Extraordinary leave'."9
(viii) Aggrieved by the said order dated 02.09.2021, the respondents have filed a review and the same was rejected by the Chief Commissioner vide order dated 06.04.2022. Though the review was rejected on 06.04.2022, the benefits to which the petitioner is entitled to have not been released. However, the recovery is being continued. Therefore, the petitioner has filed the present writ petition.
3. Heard Sri M.Srikanth, learned counsel appearing for the petitioner and Sri Gadi Praveen Kumar, learned Standing Counsel appearing for the respondents-Institute.
4. Learned counsel appearing for the petitioner submits that though the order of the Chief Commissioner has become final, so far, the respondents have not treated the period from 22.12.2016 to 11.09.2018 as on duty and not paid the salary to the petitioner for the said period.
5. Learned counsel appearing for the petitioner further submits that as per Section 20(4) of the Rights of Persons 10 with Disabilities Act, 2016, the employer has to provide an alternative employment considering the disability or create a supernumerary post and if such a post is not available, pay salary to the petitioner accordingly.
6. Therefore, learned counsel submits that appropriate orders be passed in the writ petition directing the respondents to treat the period from 22.12.2016 to 11.09.2018 as 'on duty' and pay the salary for the said period.
7. On the other hand, learned Standing Counsel appearing for the respondents submits that the petitioner has been under treatment since 13.07.2015, and during the course of treatment, the petitioner was on commuted leave, and thereafter he was on extraordinary leave from 22.12.2016 to 10.09.2018. The petitioner was not allowed to join duty, as medical fitness is essential for joining duty and, accordingly, he was referred to the Medical Board of the Osmania Government Hospital for a second opinion, as 11 the first certificate produced by him was issued by a private doctor, which is not in the appropriate format. The Medical Board of Osmania Hospital examined the petitioner and declared him as unfit to discharge his duties. Therefore, the contention of the petitioner that he was not allowed to join duty on 21.12.2016 is untenable.
8. Learned Standing Counsel appearing for the respondents further contends that it is not true to say that the Commissioner has not considered any of the relevant rules before passing the order dated 02.09.2021 and in compliance with the said order, the petitioner was reinstated into service. The averment that the petitioner was illegally prevented from joining duty on 22.12.2016 and declared the period from 22.12.2016 to 11.09.2018 as extraordinary leave is incorrect, as the petitioner was declared medically unfit by the Osmania General Board.
9. With regard to release of salary of the petitioner, learned Standing Counsel appearing for the respondents 12 contended that the petitioner was paid salary for the period of medical leave, however, no salary was paid since 22.12.2016 as no leave is available to the credit of the petitioner. Therefore, the period from 22.12.2016 to 11.09.2018, i.e., 628 days, is considered as an extra ordinary leave on medical grounds by following Rules 12 and 32 of CCS (Leave) Rules,1972.
10. Rule 12 of the Central Civil Services Leave Rules states as follows :-
(1) No Government (servant) shall be granted leave of any kind for a continuous period exceeding five years.
(2) Unless the President, in view of the exceptional circumstance of the case, otherwise determines, a Government servant who remains absent from duty for a continuous period exceeding five years other than on foreign service, with or without leave, shall be deemed to have resigned from the Government service:
Provided that a reasonable opportunity to explain the reasons for such absence shall be given to that Government servant before provisions of sub-rule (2) are invoked.13
Provided that this rule shall not apply to a case where leave is applied on medical certificate, in connection with a disability.
11. Rule 32 of the Central Civil Services Leave Rules states as follows :-
(1) Extraordinary leave may be granted to a Government servant (other than a military officer) in special circumstances.
(a) When no other leave is admissible:
(b) When other leave is admissible, but the Government servant applies in writing for the grant of extraordinary leave.
(2) Unless the President in view of the exceptional circumstances of the case otherwise determines, no Government servant, who is not in permanent employ or quasi-permanent employ, shall be granted extraordinary leave on any one occasion in excess of the following limits:-
(a) three months;
(b) Six months, where the Government servant has completed one year's co`1ntinuous service on the date of expiry of leave of the kind due and admissible under these rules, including there months' extraordinary leave under Clause (a) and his request for such leave is supported by a medical certificate as required by these rules;14
12. Therefore, there are no merits in the writ petition and the same is liable to be dismissed.
13. Per contra, learned counsel appearing for the petitioner submits that before the Chief Commissioner also, the respondent authorities submitted their written submissions on 28.06.2018, stating as follows :-
21. The representative of Respondent No.2, vide his written submission dated 28-06-2018 submitted that Hon'ble Court was apprised that appropriate directions have been issued for setting up of a Committee to find a suitable post for the Complainant in pursuance of Section 20(4) of Rights of Persons with Disabilities Act, 2016 vide letter dated.13-04-2018. The Committee constituted by the Institute for this purpose had submitted its report. In the report the Committee has mentioned the Complainant is unable to understand basis communication and is not able to independently speak and understand reading and writing skills required for functional task for his current post of Reader and Assistant Director or any other technical and non-technical posts in the institute and thus recommended that Dr. Prakash may opt 15 for invalid pension in terms of Rule 38(2) of CCS pension Rules, 1972. He further submitted that keeping in view of Section 20(4) of Rights of Persons with Disabilities Act, 2016, it has been considered not to accept the recommendations of the Committee and the case stands referred to the Ministry of Finance, Deptt. Of Expenditure for creation of a supernumerary post till such time a suitable post is found for him or till his superannuation whichever is earlier. The advice of the Ministry of Fiance is awaited and further action will be taken accordingly. As regards, release of salaries are concerned, it has been informed by Director, AYJNHH, Mumbai that the salary for the period leave due to Dr. S.G.R. Prakash has been released due to him for the period he was on medical leave. He has been declared 'UNFIT' by the Government servant on leave on medical ground will be permitted to return to duty only on production of medical certificate of fitness (Rule 19 a& 24 (3) of Central Civil Services (Leave) Rules, 1972). No salary since 22.12.2017 has been released as no leave is available in his credit."
14. In support of his contentions, learned counsel appearing for the petitioner relied upon the judgment of this Court in W.P.No.5486 of 2011, dated 14.09.2022, in 16 which the petitioner therein was appointed as a casual conductor in the Corporation in the year 1984, and regularized his services the year 1987. While he was on duty, he met with an accident and was hospitalized. After first aid treatment he was shifted to Corporation Hospital, Tarnaka, Hyderabad, from where on medical advise, he was sent to Nizam's Institute of Medical Sciences and after surgery of the spinal cord, his two discs were removed. The corporation retired the petitioner from service on medical grounds vide order dated. 21.07.2001. Though the petitioner made several representations for providing alternative employment, the Corporation paid no attention, and the said writ petition was allowed.
15. On the other hand, learned Standing counsel appearing for the respondents relied upon a Division Bench judgment of this Court in W.P.No.22695 of 2009, dated 28.02.2024, wherein the said writ petition was allowed observing as follows :-
17
"This Court, having considered the rival submissions made by the parties, is of the view that the respondent was declared medically unfit and he was medically decategorised vide proceedings, dated 06.06.2002. Thereafter, the case of the respondent was placed before the Screening committee and on recommendation of the Screening Committee only, the petitioners have continued the respondent as Deputy Chief Controller and when a person is medically decategorised, his case will not come within the purview of the Act, 1995 and the Tribunal was not justified in allowing the O.A in favour of the respondent. Therefore, the orders passed by the Tribunal are liable to be set aside and accordingly, they are set aside."
16. Per contra, learned counsel appearing for the petitioner submits that the said case pertains to the promotion of the petitioner therein and, therefore, the said case is not applicable to the present case.
17. While arguing the matter, learned Standing Counsel for the respondents submits that as per the Central Civil Services (Leave) Rules, 1972, the petitioner is not entitled for any benefits during the leave period.
18
18. Per contra, learned counsel appearing for the petitioner submits that the Central Civil Services (Leave) Rules, 1972, were amended as follows :-
The Department of Personnel & Training (DOPT) has issued a fresh set of Insturction to all Ministries/Departments granting relaxation in the Central Civil Services (Leave) Rules, 1972 for Disabled employees. In an Office Memorandum dated February 25, 2015, the DoPT has reiterated that the disabled employees will be entitled to pay, promotion and other service benefits even if they cannot be taken back to the post they were holding or are adjusted or kept waiting until a suitable vacancy arises.
The medical leave on account of disability will not be subject to ceiling under Rule 12 and any leave debited for the period after a Government servant is declared incapacitated shall be remitted back into his/her leave account.
The leave applied on medical certificate in connection with disability cannot also be refused or revoked without reference to a Medical Authority, whose advice shall be binding. Leave will also be granted even if the Government servant's family member submits an application/medical certificate in 19 case the employee is unable to do so on account of the disability.
The services of an employee can neither be terminated nor reduced in rank in case the employee has acquired a disability during his service. Any disabled employee who is not fit to return to duty shall be shifted to some other post. If that is not possible, the disabled employee shall be kept on a supernumerary post until a suitable post is available or he attains superannuation. Besides, no promotion shall be denied to a person simply on ground of his/her disability."
19. The Government of India also issued Office Memorandum dated 17.07.2018, which reads as follows :-
"The undersigned is directed to say that the CCS (Leave) Rules, 1972 have been amended vide Notification G.S.R. No. 438 (E) dated. 03.04.2018 (copy enclosed) to bring them in conformity with the Rights of Persons with Disabilities Act, 2016. Accordingly, it has now been decided that leave applied under rule 20, shall be binding.
Further, any leave debited for the period(s) granted after receipt of the certificate of disability of the Medical Authority, shall be remitted back into the leave account of the Government servant. The Certificate of Disability is required to be issued in Form '3A' which should be signed by a Government doctor of a Government medical board. 20 Further, a Government servant who is granted leave in accordance with the provisions of clause (b) of sub rule (1) of rule 20 of CCS (Leave) Rules, 1972, the provisions of section 20 of the Rights of Persons with Disabilities Act, 2016 (49 of 2016) shall, suo-motu, apply.
2. These orders are to be effective from 19-04-2017.
20. This Court, having considered the rival submissions made by learned counsel for the respective parties, is of the considered view that the petitioner took treatment for brain surgery at Yashoda Hospital, Secunderabad, and after recovery, he has submitted the joining report on 21.12.2016 along with the medical fitness certificate issued by the competent authority. However, without allowing the petitioner to join duty, he was asked to obtain a second opinion on 04.01.2017, and, accordingly, the petitioner obtained a second opinion and submitted the medical report on 23.01.2017, however the petitioner was not allowed to join duty. Such action of the respondents in not allowing the petitioner to join duty is untenable.
21. Once the Court of Chief Commissioner, New Delhi, vide order dated 20.07.2018 considered the claim of the 21 petitioner and passed an order stating that there is a gross violation of Rights of Persons with Disabilities Act, 2016 by Respondent No.1 and directed Respondent Nos.1 and 2 to facilitate the petitioner, so that he can join duty within 30 days of issuance of the Order, and pay all the outstanding dues to the petitioner till date and submit a compliance report to the Court within 45 days of issuance of this Order, it is incumbent on the part of the respondent authorities to follow the same and submit compliance report. Further, the Chief Commissioner held that as per Section 20 (4) of the Rights of Persons with Disabilities Act, 2016 no Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service; provided that, if an employee, after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits; provided further that it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post 22 is available or he attains the age of superannuation, whichever is earlier.
22. After passing the above order, though the petitioner is making efforts to join the duty, on one pretext or the other, the respondent authorities are not allowing the petitioner to join duty, and the same cannot be considered negligence on the part of the petitioner. Though the petitioner is trying to join duty, the authorities have not allowed the petitioner to join duty on one pretext or other and have dragged the matter for a long time. The said action of the respondents is illegal and arbitrary.
23. Further, in the order relied upon by the learned counsel for the petitioner in W.P.No.5486 of 2011, dated 14.09.2022, while allowing the said writ petition, it was observed as follows :-
In the result, the writ petition is allowed. The respondent Corporation is directed to pay full salary to the petitioner for the period w.e.f. 21.01.2001 upto 21.02.2007 after calculating the same as per the pay scale applicable to the post of Conductor for the relevant period. The arrears shall be paid within a 23 period of two months from the date of production of a copy of this judgment before the respondent-
Corporation along with simple interest thereon @ 6% p.a. w.e.f. 21.02.2007 upto the date of payment."
24. In the present case, the petitioner also never neglected to join the duty, still the respondents knowingly or unknowingly dragged the matter. They did not allow the petitioner to join duty. Without the fault of the petitioner, the respondents treated the period from 22.12.2016 to 11.09.2018 as 'not on duty' and did not pay salary to the petitioner for the said period. If there is any negligence on the part of the petitioner, the respondents can take action against the petitioner. But, in the instant case, though the petitioner is ready to join duty after recovery, the respondents have not allowed him to join duty. Therefore, because of the mistakes of the respondents, the petitioner cannot be made to suffer.
25. Moreover, the petitioner underwent brain surgery twice. Due to his health condition, he could not continue 24 in the same post. Considering the same, the respondents ought to have followed the Chief Commissioner's order. However, neither of the respondents followed the order of the Chief Commissioner. They accommodated the petitioner into service nor treated the leave period from 22.12.2016 to 11.09.2018 as 'on duty', which caused the petitioner suffer a lot. Thus, the respondents action is not proper and for providing alternative employment to the petitioner, the respondents have taken a long time, and it is a mistake of the authorities, therefore, the respondents cannot escape from their liability. Further, under the Disabilities Act, the total salary cannot be denied to the petitioner.
26. Even on the query raised by the Court under what provision, the leave period of the petitioner is treated as extraordinary leave, the learned Standing Counsel for the respondents cannot satisfy the Court as to how they have treated the period of absence of the petitioner as an extraordinary leave. Viewed from any angle, the 25 respondents cannot deny the relief sought by the petitioner regarding the payment of salary from 22.12.2016 to 11.09.2018. The petitioner being a physically challenged person, the total salary cannot be denied without his fault.
27. In those circumstances, this Court deems it appropriate to direct the respondents to pay 50% salary to the petitioner from 22.12.2016 to 11.09.2018. The rest of the impugned order holds good.
28. Accordingly, the writ petition is partly allowed to the extent indicated above. No order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
______________________________________ NAMAVARAPU RAJESHWAR RAO, J 03.03.2025 Prv