Central Administrative Tribunal - Ahmedabad
Piyush Mangaldas Patel vs Bharat Sanchar Nigam Limited on 27 March, 2026
:: 1 :: O.A.No.82/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
O.A. No.82/2023
Dated this the 27th Day of March, 2026
Reserved On: 19.12.2025
.2025
Pronounced On:27.03.2026
CORAM:
Hon'ble
ble Shri Jayesh V Bhairavia, Member (J)
Hon'ble Dr. Hukum Singh Meena
Meena, Member (A)
1. Piyush Mangaldas Patel
Hindu, Aged 58
23, Dharmrajnagar Society,
Chanakyapuri,
Ahmedabad - 380061.
.....Applicant
....Applicant
(By
By Advocate Mr.
M Rutvij Patel)
Versus
1. Chief General Manager,
Gujarat Telecom Circle, BSNL,
7th Floor, Telephone Bhavan,
C.G. Road, Navrangpura,
Ahmedabad - 380009.
2. Bharat Sanchar Nigam Limited (BSNL),
Through its Chairman & Managing Direct
Director,
Harish Chandra Mathur Lane,
Janpath, New Delhi - 110001.
..........Respondents
..Respondents
(By Advocate: Mr. Joy Mathew)
ORDER
Per : Hon'ble Dr.Hukum Singh Meena, Member (A)
1. The applicant has filed the present OA being aggrieved with order dated 20.12.2022 whereby he was compulsory retired from service and vide order dated 16.03.2019 whereby his name was stuck off from the pay roll of BSNL under Section SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 2 :: O.A.No.82/2023 19 of the Administrative Tribunal's Tribunal s Act, 1985 seeking followi following ng reliefs:
reliefs:-
"(i)
(i) That the Hon'ble Tribunal may kindly be pleased to admit and allow this application.
(ii) That the Hon'ble Tribunal may kindly be pleased to declare the impugned order rder dated 20/12/2022 rejecting the representation dated 22/01/2019 of the applicant as illegal, arbitrary, capricious, unreasonable, irrational, unjustified & in violation of section - 20 of The Disability Act and also in violation of Article 14, 16, 19(1)(g), 21, 39(1) & 350 of the Constitution of India & further be pleased to quash and set aside the same.
(iii) That the Hon'ble Tribunal may kindly be pleased to declare the impugned notice / order dated 10/12/2018 and an order dated 16/03/019 and all consequential & incidental actions relieving the applicant from the servicee by way of compulsory retirement as illegal, arbitrary, capricious, unreasonable, irrational, unjustified & in violation of section - 20 of The Disability Act and also in violation of Article 14, 16, 19(1)(g), 21, 39(1) & 350 of the Constitution of India & further be pleased to quash and set aside the same.
(iv) That the Hon'ble Tribunal may kindly be pleased to pass an order to reinstate the applicant in the service on the post of JTO or any other appropriate post within the purview of Section 20 of the Rights of Persons with Disabilities Act, 2016 w.e.f.
17/03/2019 & to pay salary regularly till he reaches the superannuation age of 60 years.
(v) That the Hon'ble Tribunal may kindly be pleased to pass an order directing the respondents to pay the arrears of full back wages, along with interest calculated at the rate of 9% thereon, from 17/03/2019 till the date of reinstatement or till the date of superannuation on reaching the age of 60 years, whichever is earlier; after adjusting amount of pension alreadyy paid to the applicant.
(vi) That the Hon'ble Tribunal may kindly be pleased to pass an order directing the respondents to enrol enroll the applicant to the strength of the appropriate unit of BSNL and allow the applicant to continue his employment.
(vii) If the the applicant reaches the age of superannuation pending admission, hearing and final disposal of this application, then the Hon'ble Tribunal may kindly be pleased to pass an order that his pension SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 3 :: O.A.No.82/2023 & all other retirement benefits be ordered to be revised as per er "last pay" as on the date of superannuation & difference of retirement benefits & pension be directed to be paid considering this pay with 9% interest till payment.
(viii) That the Hon'ble Tribunal may kindly be pleased to pass an order granting cost / compensation to the applicant for the mental agony faced, hardship caused expenses incurred for justice by him.
ix) That the Hon'ble Tribunal may kindly be pleased to pass any other appropriate order deemed fit in the interest of justice."
2. Brief facts of the case of the applicant are as under:-
2.1 That the applicant had worked with BSNL since 05.04.1985. He joined the BSNL as a Technician and at the time of his compulsory retirement he was working as Junior Telecom Officer (JTO) at Ahmedabad Telecom Circle. 2.2 Further, it was submitted that when the applicant was working as JTO, BNSL at Office of the Sub Sub-Divisional Divisional Engineer Duct Maintenance, Naranpura Telephone Exchange, the Sub Divisional Engineer (Duct Maintenance) vide communicat communication ion dated 12.02.2007 requested the Civil Surgeon, Mental Hospital, Asarwa to conduct Mental Check-
Check-Up Up of the applicant since he was not able to perform his duties because of mental disturbance and behaved behave like a mad man (Annexure A/3) A/3).
2.3 It was submitted that after being tested for mental illness/disability, the applicant was issued a "Certificate for Mental Illness for Government Benefit" qua OPD Case No. 429/07 dated 14.11.2008 which was valid for three years and as per said certificate; it was declared that the applicant was suffering from moderate Mental Illness having 40 40-70 70 per cent of disability. Therefore, the applicant submitted that his mental illness was very much well within the knowledge o off the respondents (Annexure A/4).
A/4 2.4 Thereafter, ereafter, the applicant was again issued a mental illness certificate no. 111/2014 dated 09.09.2014 from the Hospital of Mental Health, Ahmedabad and validity period of the SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 4 :: O.A.No.82/2023 said certificate was of five years and as such it was valid up to 08.09.2019.
2.5 It was submitted that during the validity of the said certificate of mental illness, the respondents issued letter no. Staff-2/JTO/Probity&Efficiency/Comp.
2/JTO/Probity&Efficiency/Comp. Retirement/13 Retirement/13-A A dated 10.12.2018 whereby the applicant was informed to take this order as a notification notification for his retirement from the BSNL Service w.e.f. 17.03.2019 A/N as per Rule - 55(A) (1) (i) of BSNL CDA Rules, 2006 (Annexure A/2 colly ). 2.6 Thereafter, the applicant being aggrieved with the aforesaid order of compulsory retirement dated 10.12.2018 submitted a representation dated 22.01.2019 wherein by ring the benefit available to disabled employee under Disabled Persons Law (The Persons with Disabilities) (Equal Opportunities, Protection or Rights and Full Participation) Act, 1995, he submitted that that an employee cannot be released or retired d from duty during the medical treatment. At the outset, learned counsel for the applicant contended that at the time of making a representation the applicant was not aware of the "The Rights of Persons with Disa Disabilities bilities Act, 2016" which was in force in place of (The Persons with Disabilities) (Equal Opportunities, Protection or Rights and Full Participation) Act, 1995.
Learned earned counsel for the applicant submitted that the provisions of the new Act are similar to the Act which was relied upon by the applicant.
2.7 Further, the applicant stated that, for clarity and brevity, the Section 20 of the Rights of Persons with Disa Disabilities bilities Act, 2016 is reproduced herein below:-
below:
"20. Non-discrimination discrimination in employment.
employment.-
(1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:
SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 5 :: O.A.No.82/2023 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, exempt any establishment from the provisions of this section. (2) Every Government establishment shall provide reasonable accommodation odation and appropriate barrier free and conducive environment to employees with disability.
(3) No promotion shall be denied to a person merely on the ground of disability.
(4) 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 er 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.
(5) The appropriate Government may frame policiess for posting and transfer of employees with disabilities."
2.8 However, without considering the mental illness and provisions of the said Act, the AGM (Administration) sent a letter dated 05.03.2019 along with letter of AGM (HR) dated 25.02.2019 to deny to consider the representation of the applicant on highly technical ground that since the representation was s not submitted within three weeks from the date of service of notice, the same cannot be considered (Annexure A/8 colly).
colly 2.9 Learned counsel for the he applicant further submitted that as per letter dated 25.02.2019 wherein reference nce has been made of BSNL Corporate Office Letter No. 10 10-1/2016 1/2016 WS&I (Pt) dated 30.08.2018, the representation of the applicant was to be considered by "Representation "Representation Committ Committee" and "..the final SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 6 :: O.A.No.82/2023 order on representation against premature retirement should have been passed by the authority superior to the authority which issued order of premature retirement". However, the aforementioned mandate was not followed by the respondents and the decision on representation was s conveyed by Asst.
CGM (Administration) and Asst. CGM CGM-HR, HR, without submitting the representation to the "Review Committee"
Committee".
2.10 Thereafter, the respondents vide communication dated 16.03.2019 relieved & struck off the applicant from the strength of the unit w.e.f. 17.03.2019 A/N on compulsory retirement from service (Annexure A/2 colly ).
2.11 With a view to challenge the said decision of the respondents, the applicant made two RTI application applications dated 20.04.2019 and 22.06.2019 seeking information related to decision taken to compulsory retire the applicant from service. 2.12 It was submitted that due to poor economic condition, the applicant submitted a representation representation dated 22.06.2019 to the respondent no. 1 and showed his willingness to sign the papers for retirement benefits while reserving his right to challenge the impugned decision (Annexure A/10 ). 2.13 Thereafter, the a legal notice dated 13.08.2019 an and d a reminder dated 01.10.2019 was served upon the respondents on behalf of the applicant wherein various legal grounds and provisions of Disabilities Act 2016 were cited and grievance of the applicant against compulsory retirement was raised (Annexure A/11 & A/12 ).
2.14 It was submitted that the applicant was again issued a new Disability Certificate No. GJ0750819640037515 dated 16.09.2019 by the appropriate authority which was valid upto 16.09.2022 (Annexure A/13).
2.15 Further, the respondents vide letter dated 16.10.2019 replied to the applicant's notice dated 13.08.2019 and by giving parawise reply stated that the applicant has been rightly retired SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 7 :: O.A.No.82/2023 under the provisions of BSNL CDA Rules, 2006 (Annexure A/14).
2.16 It was stated that the applicant being aggrieved with compulsory retirement had earlier approached this Tribunal by way of filing O.A. No. 48/2021 and this Tribunal vide order dated 23.08.2022 inter alia held as under:
under:-
"Thus, taking guidance from the cas case laws quoted and relied upon by the learned counsel for the applicant, we direct the respondents to consider the representation dated 22.01.2019 of the applicant, particularly, in the light of provision contained in Section 47 of the PWD (Equal Opportunity,y, Protection of Rights and Full Participation) Act, 1995 and take and inform decision within three months from the date of receipt of this order. We make it clear that then jurisdiction under Rule 55 (A)(1)(i) of the BSNL (CDA) Rules, 2006 is akin to sove sovereign function of the respondents where we would refrain from interfering. But at the same time, we find that provision contained in Section 47 of the PWD (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 has not been kept in consideration deration while passing the impugned order dated 10.12.2010 (Annexure A/1) and dated 16.03.2019 (Annexure A/2)."
2.17 In response thereto, the respondents vide impugned communication dated 20.12.2022 (Annexure A/1) stated that the applicant was retired compulsory from the BSNL Service w.e.f. 17.03.2019 in the public interest as well as in the interest of the company and therefore, his request was denied. 2.18 Learned counsel for the applicant submitted that again the e applicant was issued a new Disability Certificate No. GJ0790819640244609 dated 11.11.2022 from the Medical Authority, Ahmedabad Gujarat under the Department of Empowerment of Person with Disabilities, Ministry of Social Justice and Empowerment wherein it was clearly stated that the SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 8 :: O.A.No.82/2023 applicant has 60 per cent permanent disability in relation to his Brain.
3. In support of the prayer sought in the OA, Mr. Rutvij Patel learned counsel for the applicant mainly argued as under:
under:-
3.1 That the action of the respondents to deny the applicant's request to be reinstated in service as per the provision contained in Section 20 (4) of The Rights of Persons with Disabilities Act, 2016 by assigning the reason that the applicant has been given compulsory compulsory retirement as per the provisions contained in Rule 55 (A) (1) (i) of the BSNL (CDA) Rules, 2006 wass bad in law as Act framed by the Parliament prevails over provisions of any other Act or Rules. Therefore, the provisions contained in Rule 55 (A) (1) (i) of BSNL (CDA) Rules, 2006 cannot supersede the provisions contained in Section 20 (4) of The Rights of Persons with Disabilities Act, 2016. 3.2 Learned counsel for the applicant by ring the minutes of the meeting of the review committee held on 03.
03.11.2018 11.2018 for considering the cases case of retention/compulsory retirement from service of Grade B (JTO/PA) Level Executives after attaining the age of 50 years provided that he/she had entered the service before attaining the age of 35 years under BSNL CDA Rule 55 (A) (1) (i).
(i) In the Minutes of the meeting, the he respondents recorded that the applicant was "Mentally Unfit" on the basis of APAR Grading given for the period from 01.04.2008 to 15.12.2008. Therefore, it wa 01.04.2008 was s evident that the respondents were well aware of the mental illness of the applicant icant and even then, by ignoring the provisions of Section 20 (4) of The Rights of Persons with Disabilities Act, 2016 2016,, compulsory retired the applicant. 3.3 It was argued that review committee was held on 03/11/2018 to consider the retention / Compulsory retirement from service of Grade B (JTO / PA) level executives after he/she /she has attained the age of 50 years provided that he he/she /she SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 9 :: O.A.No.82/2023 had entered service before attaining the age of 35 years under BSNL CDA Rule 55(A)(1)(i) and as s per the reply filed by the respondents spondents in OA No. 48/2021, 48/2021, the BSNL came into existence only in the year 2000. Therefore, in n the year 2000, the applicant had already completed 35 years of age and hence, the condition of the BSNL CDA Rule 55(A)(1)(i) was not fulfilled. Hence, the action of the respondents to co compulsorily mpulsorily retire the applicant wass illegal and not tenable in the eyes of the law. 3.4 The applicant further contended that the mental illness of the applicant was very much in knowledge of the respondent; therefore, while considering him for first up up-gradation gradation of IDA Pay Scale, the respondents found the applicant unfit and recommended him for examination by medical board. In this regard, the applicant placed on record copy of several letters annexed at Annexure Ann A/20. Thus, the action of the respondents to compulsory retire the applicant with the knowledge of the disability of the applicant, are not tenable in law and thus requires to be set aside.
3.5 The applicant further reiterated the provisions of Section 20 of The Rights of Persons with Disabilities Act, 2016; the disabled person cannot be dispensed with or reduced in rank if he acquires the disability during the tenure of service. On the contrary, if he is not fit for the current post, he is to be shifted to other post while continuing his current pay. Not only that but if such another post is not available, he must be kept on supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. 3.6 Learned earned counsel for the applicant vehemently argued that the BSNL is not exempted from the provisions of "The The Rights of Persons with Disabilities Act, 2016"
2016". Therefore, the action of the respondents to compulsorily retire the applicant under the guise of Rule 55(A)(1)(i) of BSNL CDA Rules, 2006 which does not SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 10 :: O.A.No.82/2023 even speak about persons with disability is erroneous and bad in law.
3.7 It can be seen from the communication dated 12.02.2007 issued by the respondents wherein the Civil Surgeon Surgeon,, Mental Hospital, Asarwa, Ahmedabad was requested to carry out mental checkup of the applicant since he was not able to perform duties because of mental disturbance. Therefore, it is an undisputed fact that the mental condition of the applicant was in knowledge knowledge of the respondents. 3.8 It was argued that the respondents have time & again contended that the compulsory retirement has been given based on the APAR ratings of the years 2011 2011-12, 2012-13 13 & 2013-- 14. However, it is pertinent to note that even for the years under consideration; the applicant was suffering from the disability which was very well within the knowledge of the respondents. In this regard, learned counsel for the applicant submitte that the first disability certificate of the applicant submitted (Annexure A4) was issued on 14.11.2008
4.11.2008 which was valid till 14.11.2011 and this certificate covers most of the period for the year 2011-12.
2011 Further, he submitted that even the review committee had ha observed served (Annexure - A14) that the applicant was "mentally weak" for the year 2013 2013-14.
14. Thus, the action of the respondents to compulsorily retire the applicant was s bad in law.
3.9 Learned counsel for the applicant vehemently argued that the he scheme of the Disability act does not limit its protection to the "persons in possession with disability certificate" but ensures protection to the "Persons with disability". 3.10 Further, he submitted that the respondents have adopted hyper technical approach by statin stating g that the applicant was compulsorily retired w.e.f 17.03.2019 and at that time, the applicant pplicant did not have any disability certificate is not valid as the applicant had valid & authenticated disability certificate on SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 11 :: O.A.No.82/2023 the date of issue of impugned notices / orders, as annexed in (Annexure Annexure - A2 Colly).
3.11 Learned counsel for the applicant further submitted that this Tribunal vide order dated 23.08.2022 in O.A. No. 48/2021 observed that the provisions of the Disability Act has not been kept in consideration while hile passing the impugned orders. However, even while passing the impugned order dated 20.12.2022 it can be seen that there was not an iota of a discussion in the said impugned order with regard to the provisions of the Disability Act, especially the section 20 thereof.
3.12 Further, learned counsel for the applicant submit submitted that itt is settled position in law that even in the gu guise ise of "public interest" the person with disability cannot be dispensed with the employment. The employee who has attained the disability cannot be even prematurely retired. Thus, the action of the respondents to reject the representation of the applicant, without considering the provisions of Disability Act & settled law position thereon, was bad in law.
3.13 Thus, in view of the above facts and grounds learned counsel for the applicant request requested that the OA may be allowed.
4. Per contra, on receipt of the notice issued by this Tribunal the respondents have filed their reply. Mr. Joy Mathew learned counsel for the respondents by ring the reply denied the claim claims s of the applicant and mainly submitted as under:
under:-
4.1 That as per Rule 55 (A) of BSNL CDA Rules, 2006, BSNL shall if it is of the opinion that it is in the interest of BSNL to retire any employee, employee has the absolute right to retire any employee by giving him notice of not less than three months in writing or three months' pay and allowance in lieu of such notice if the employee had entered service before attaining the notice, age of 35 years, after he has attained the age of 50 years and SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 12 :: O.A.No.82/2023 in any other case after he has attained the age of 55 years.
Further, he submitted that as per settled legal position, the power of BSNL to retire a person under this category is an absolute power lies with the competent authority.
Further, he submitted that on order of premature retirement can only be attacked on very few grounds like bias or mala ala fide or lack of jurisdiction and w while hile issuing such orders, the authority can consider the entire service record of the employee.
As it is evident from the records that in the present case there is no allegation of bias, mala fide or lack of jurisdi jurisdiction ction on the authority who passed the order. Therefore, the action of the respondents to retire the applicant is legal, just and proper. 4.2 Further, he argued that only ground relied by the applicant in support of his case wa was his disability and in support of the same, the applicant has produced two medical certificates issued on 14.11.2008 and 09.09.2014.
9.2014. First certificate was valid for a period of 3 years and the second one was valid for a period of 5 years.
Therefore, from 13.11.11 to 9 9.9.2014, .9.2014, the applicant was perfectly in good condition and that as per the certificate dated 09.09.2014, 9.2014, his condition was was progressive and likely to improve.
Further, learned counsel for the respondents argued that other than these two certificates, the applicant has not produced any other documents in support of his case. The applicant only after after the disposal of earlier O.A. No. 24/2021 on 23.08.2022 8.2022 obtained another disability y certificate dated 12.11.2022 certifying certifying that he has 60% permanent disabil disability ity in relation to his brain as per the guidelines dated 4.1.2018. This certificate was produced by the applicant for the first time before this Hon'ble Tribunal in the present OA. In any case, this certificate wass issued by the authority after the retirem retirement ent of the SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 13 :: O.A.No.82/2023 applicant from service. Therefore, it has no bearing on the claim of the applicant.
4.3 Learned counsel for the respondents submitted that as per impugned order dated 10.12.2018 10.12.2018, the applicant was retired from service with effect from 17.
17.03.2019. The applicant accepted the said order and received entire terminal dues. Further, he elaborated that the applicant received an amount of Rs. 46,54,328/-(Leave 46,54,328/ (Leave Encashment of Rs. 8,96,930/ 8,96,930/-,, DCRG of Rs. 14,79,935/-, 14,79,935/ , CVP of Rs. 7,77,673/ 7,77,673/-, GPF of Rs. 14,36,475 and GSLI of Rs. 63,315/-) 63,315/ ) and apart from this he is also getting monthly pension of Rs. 18,780/-
18,780/ along with applicable IDA per month.
The applicant after a period of more than two years of issuance of impugned order dated 10.12.2018 approached this Tribunal by way of earlier O.A. No. 48/2021. 4.4 Learned counsel for the respondents submitted that the sole ground of applicant is that he was s a mental patient and he ought not to have been retired considering the protection granted under the Right of Persons with Disabilities Act, 2016 2016.
In this regard, learned counsel for the respondents submitted that the order under challenge was not passed by way of a penalty. Therefore, the order issued by the department is not a stigmatic or penal one. The certificates relied by the applicant at the relevant time stated that his condition was s progressive and likely to improve. The latest certificate relied by the applicant shows that he has 60% permanent disability and he is suffering from schizophrenia schizophrenia, then how he can file the present OA.
4.5 The impugned order of pre--mature mature retirement has been passed as per the Rule 55 (A) of BSNL CDA Rules, 2006 2006,, it has nothing to do with the sickness of the applicant, h had ad the department passed an order of dismissal/removal/reduction in rank of the applicant on the basis of his disability, it would have SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 14 :: O.A.No.82/2023 been a different situation.
situatio Further, he clarified that it is the right of every employer; in the present case, BSNL, to evaluate the performance of each and every employee and after fulfilling the requirement of Rule 55 to pass necessary order. The contention raised by the applicant applicant that due to his mental health, department has imposed the order under challenge on him is not true.
4.6 Learned counsel for the respondents further submitted that the applicant's case is not isolated one. Several persons had accepted similar orders and few of them have approached various Courts challenging the order passed by the BSNL. Even so, the Act does not prevent the department from retiring an employee who is suffering suffering from any kind of disability. As far as BSNL is concerned, as per Rule 55, after taking into consideration the entire service record of an employee employee, he can prematurely be retired.
4.7 Further, the BSNL came into existence on 1st October, 2000 with the objective that it continues to serve the people of India with the responsibilities including improvement of the already impeccable quality of Telecom Service, expansion of Telecom Network, Introduction of New telecom Services in all India level in all villages as well as in urban areas and instilling confidence among its customers by providing the best ser services vices for the Nation in the best interest of Public with affordable price to the citizen and to compete compete with private operators with a vision to become the largest Telecom Service Provider in the Country.
Further, he submitted that tthe he mission and objective of BSNL is to o provide world class State State-of-art art Technology Telecom Service on demand at affordab affordable price, to o provide world--class class Telecom Infrastructure to Develop Country's econom and to economy o provide world class Telecommunication structure.
SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 15 :: O.A.No.82/2023 These aims and objectives can be attained only with hardworking, competent and committed employees employees.. In today's India, aspirations of people have changed. Therefore, in n order to achieve this motto, all the "dead dead wood wood" has to be removed and hard-working hard working dedicated employees should be encouraged. 4.8 Learned counsel for the respondents further contended that at the order dated 20.12.2022 was a result of earlier O.A. No. o.
48/2021. Further, he submitted that the said O.A. No. 48/2021 was filed after a period of several months of the issuance of premature retirement order. Therefore, when the applicant challenges the initial order of premature retirement dated 16.03.2019, 3.2019, there is a delay in filing the present OA. Unless and until, this delay is condoned by this Hon'ble Tribunal, present OA is not maintainable.
In the present OA, delay cannot be condoned as ther there e is no MA for this purpose. Hon'ble Supreme Court has held that in the absence of an application for this purpose, delay cannot be condoned.
4.9 Learned counsel for the respondents submitted that the contention of the applicant that he was working with th the e BSNL since 05.04.1985 is not correct as the BSNL came into existence only in the year 2000.
4.10 It was submitted that the applicant was not given compulsory retirement as the same is s issued by way of penalty.
In fact, the was ordered to be retired prem prematurely aturely with effect from 17.03.2019
17. 3.2019 in public interest by the competent authority as per the provisions of Rule 55 (A) of BSNL CDA Rules, 2006 2006,, in line with FR 56(J) for other employees, after considering overall service record, available material from the personal file, his work performance, efficiency, capability being executive cadre, ACRS/APAR dossiers grading and pen picture given in ACRS/APARs after examining all the relevant instruction of SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 16 :: O.A.No.82/2023 DOPT which were amended from time to time, the impugned orderss have been passed.
4.11 Learned counsel for the respondents argued that even before the applicant acquired mental illness his performance was average. In this regard, he submitted that the applicant was promoted to the cadre cadre of JTO in the year 1999 1999-2000 and the APAR of the applicant for the period from 3.4.2000 to 31.3.2002, i.e. of Valsad was s graded as 'Average' and during that period there was no complaints of mental sickness. 4.12 On resumption as JTO on 30.9.2002, the applicant was posted under SDOP III NVP. But the work performance and efficiency of the applicant was not satisfactory and his controlling officer had issued letter dated 24.12.2002, 3.7.2003 and on 21.3.2002 to the applicant to prepare the outdoor related ted work but he failed to do so (Annexure R/1 ). 4.13 Learned counsel for the respondents by ring the communication dated 07.05.2003 (Annexure R/2) submitted that it is evident from the said communication that the applicant was not able to perform his duties as JTO and he was asked to give explanation for the delay caused in work. 4.14 Learned counsel for the respondents by ring the communication dated 10.07.2009 submitted that the Gram Panchayat Taluka, Mandal made a complaint against the applicant that his h physical al and mental condition as JTO was s very fragile and if he was s not competent to manage this Technical Department than he may be replaced (Annexure R/3 ).
4.15 Further, he submitted that the representation dated 22.01.2019 1.2019 was considered and regretted by the competent authority thority in the light of the instructions issued by BSNL HQ dated 30.08.2018.
30. 4.16 Learned counsel also elaborated that the Disability Act does not say that person suffering from a disability should not SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 17 :: O.A.No.82/2023 be imposed with a penalty or imposed with an order of pre pre--
mature retirement. This Act only gives a protection to an employee who is suffering from a disability not to be discriminated.
In the present case, neither the applicant is discriminated nor did the department impose any penalty on him. However, considering his entire service record with BSNL by a competent forum on the basis of Rule 55(A), the order under challen challenge ge was issued by the department which is just and proper. 4.17 Learned counsel for the e respondents submitted that the contention of the applicant that he had joined the BSNL in the year 2000 and at this time he had completed the age of 35 years, therefore, no order could have been passed under Rule 55 of BSNL CDA Rules was incorrect incorrect. In support of the said stand, the applicant relied relie upon the reply filed by the department in his earlier OA No. 48 of 2021. This averment was made by the department in its earlier reply as the applicant repeatedly made averments that he had joined the resp respondent ondent Corporation with effect from 05.04.1985.
4.1985. It is his duty to state correct facts before this Hon'ble Tribunal. He was engaged by DOT in the year 1985 and later on he came to BSNL on deemed deputation basis and got absorbed with BSNL and DOT paid him all all terminal dues and pension.
4.18 Learned counsel for the respondents further stated that the BSNL has the authority to review the performance of government servants with a view to ascertain whether government servant should be retained in service or retired from service prematurely in public interest. There is no guarantee for a government servant that once he joins the service, he will retire from service only reaching the age of superannuation. His performance is periodically reviewed. He further clarified clarified that the BSNL mainly depend depends on the performance of its employees, periodical review of performance SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 18 :: O.A.No.82/2023 of each and every employee is required and if an employee does not perform well or not up to the expectation of BSNL and he comes within the age contemplated contemplated under Rule 55(A), on the basis of the findings of the review committee, he can be prematurely retired from service. Therefore, the impugned orders are just and proper.
4.19 Learned counsel for the respondents submitted that as per the judgments passed passed by the Hon'ble Supreme Court, while considering a case for premature retirement, it is stated that the department should consider the entire service record of the employee.
He submitted that even the performance of the applicant for one year prior to the disability sability was s not up to the mark, therefore, the department can retire him prematurely. The initial certificates confirmed his sickness as temporary and likely to improve. Only in the latest certificate, it is stated that he has 60% permanent disability and the said certificate was issued on 11.11.2022 which has no relevance to the present OA. 4.20 During the course of argument, learned counsel for the respondents relied on the judgment passed by the Hon'ble Supreme Court of India in case of Central entral Industrial Security Force Vs HC (GD) OM Prakash in Civil Appeal No. 5428/2012 dated 04.02.2022 whereby the Hon'ble Supreme Court quashed and set aside order dated 14.10.2011 of the Division Bench of the Hon'ble High Court of Delhi whereby the order of premature retirement was set aside and held that the order of premature retirement is required to be passed on the basis of entire service records.
4.21 Thus, in view of the above facts and grounds, learned counsel for the respondents submit submitted that the OA may be dismissed and further he submitted that in case this Tribunal SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 19 :: O.A.No.82/2023 interferes with the impugned orders, the applicant is required to return the terminal dues he received with interest.
5. Thereafter, the applicant has filed the rejoinder and denied the contentions made by the respondents in their reply. He additionally submitted as under:
under:-
5.1 He submitted that the contention of the respondents that the applicant accepted the order of compulsory retirement and even accepted the retiral dues whole heartedly is not correct. In this regard, learned counsel for the applicant by relying on the letter dated 22.06.2019 (Annexure A/10) submitted that the applicant accepted the same due to financial stress and with protest as he stated in the said letter that signing of pension and other retirement benefits papers to have my retirement benefits, will not be binding to me, against me, in challenging the order of retirement dated 10.12.2018 among other orders. 5.2 Further, he submitted ubmitted that if the applicant is reinstated in service, it is not mandatory for the applicant to return the retiral dues with interest as it is always open for the respondents to pay the applicant only that portion of terminal dues which will have accumulated accumulated from the effective date of reinstatement till the date of superannuation i.e. from March 2019 to the date of superannuation.
5.3 Learned counsel for the applicant during the course of argument relied on the judgment passed by the Hon'ble 'ble High Court of Gujarat in Special Civil Application No. 10355/2012 (Kutarbhai Keshlabhai Rathva V. Assistant Geologist & Ors.) decided on 04.09.2013 reported in 2014 (1) GLR 70 of which relevant para 8,9 and 20 are reproduced herein below:
below:-
"8.. From the material available on record and the submissions advanced by the learned Advocate for the petitioner and the respondents, it has also emerged that there is no dispute as regards the fact that the petitioner incurred the disability or physical handicap, ndicap, during and while in service.
SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 20 :: O.A.No.82/2023 This is also evident from the fact that at the time of entry in employment, the petitioner had no such disability and even during the tenure of his past service also he did not have such disability. The petitioner, thus,, was not a person 'with' disability, but he acquired the 'disability' after his entry in service and during and while in service. It is also not even the case of the respondent that the petitioner was a person 'with' disability. Even if it is assumed, onlyy for the sake of examining the respondents' claim and allegation that the petitioner did not acquire the disability in question on account of the alleged incident, then also the fact remains that he acquired the disability during and while in service. Thi This aspect is neither disputed nor denied by the respondent employer. 8.1 Moreover, Sec. 47 of the Act does not postulate that the disability should be due to (ie. on account of) any accident/injury. 8.2 The provision contemplates a situation, wherein the employee ployee 'acquires' disability (which need not be as a result of accident/injury) which could be due to diverse reasons and not necessarily only as a consequence of accident/injury.
8.3 The Legislature has not qualified the word 'disability' and/or the word 'acquired' with the expression 'on account of accident'. 8.4 The Legislature has also not employed the expression 'during the course of employment and/or the words 'while on duty. Thu Thus, all that is contemplated under and required by th the provision is that the employee ployee gets afflicted by i.e. e. 'acquires' a disability or a handicap specified under the Act.
8.5 Even otherwise, in present case, it is pertinent that while the petitioner was re recruited and appointed, he was not physically handicapped and did not have the disability in question and even during the service of about 21 years, the petitioner was not afflicted by the said disability, which fact also establishes that the petitioner acquired uired the disability during and while in service. Actually, there is no denial or dispute on this count. In this view of the matter, the petitioner's case stands covered under provisions SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 21 :: O.A.No.82/2023 of the Act and he would be entitled to the protection under Sec. 47 o of the Act. 8.6 It is pertinent that in view of the certificate by the Civil Surgeon, the respondents themselves have treated and considered the petitioner as a person with disability and unable to perform his duties, and that therefore, the respondents hav have rightly not raised any dispute against the petitioner's claim that his case stands covered under the provisions of the Act and/or about the applicability of the provisions of the Act to the case of the petitioner at the time of hearing, hence, any furtherr discussion is not required for the purpose of present order.
9. Inn such circumstances, it was an obligation and duty of the respondents to act in consonance with the pro- vision under Sec. 47 of the Act and not to disregard the obligations imposed by Sec 47 of the Act.
9.1 However, from the facts of present case and even from the respondents' own admission in the reply affidavit, it emerges that the respondents did not take any step contemplated under and required by the provision under Sec. 47 of the Act.
9.2 Actually, on careful consideration of the two reply affidavits by the respondents coupled with the fact that the respondents did not take any step in consonance with said provision, this Court is of considered view that the respondents have flouted and nd disobeyed the mandate of Sec. 47 of the Act.....
20. Since, the impugned order dated 30 30-7- 2011 is quashed and set aside, the petitioner is entitled to be reinstated with all consequential benefits from the date of the order till the date of actual reinstatement on such other suitable post or on supernumerary post, in consonance with Sec. 47 of the Act, provided the petitioner has not reached age of superannuation. In the event the petitioner has reached age of superannuation, the petitioner would be entitled to receive all benefits which he would have been entitled for if he were in ser- vice, until the date when he reached age of superannuation. The petition is accordingly partly allowed. Rule is made absolute to the above extent."
SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 22 :: O.A.No.82/2023 5.4 Learned counsel sel for the applicant further relied on the judgment passed by the Hon'ble Apex Court in Civil Appeal No. 4944/2013 (Anil Kumar Mahajan Vs. Union of India) decided on 02.07.2013 reported in (2013) 7 Supreme Court Cases 243 of which relevant para 17 to 23 h held as under:-
"17.. The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter red 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 prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environ environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis vis-
a-vis non-disabled 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 nto the social mainstream."
18. Section 2(i) defines disability: "Section 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;"
19.. There is a prohibition imposed under Section 47 to dispense with, or reduce in rank, an employee who acquires a disability during his service, which reads as follows:
SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 23 :: O.A.No.82/2023 "47 Non-discrimination discrimination in Government employments.
-
(1) No establishment shall dispense A 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 ever 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, ditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
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 ttill 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 ant became insane, as held by the Inquiry Officer, mentally illness 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 he 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.
21. In view of the aforesaid findings, we are of the view that it was not open to the authorities to SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 24 :: O.A.No.82/2023 dispense with the service of th the appellant or to compulsory retire him from service. The High Court also failed to notice the relevant fact and without going into the merit allowed the cou counsel to withdraw the writ petition merely on the basis of the finding of lnquiry Officer. In fact the High Court ought to have red the matter to a Medical Board to find out whether the appellant was insane and if so found, in that case instead of dismissing g the case as withdrawn, the matter should have been decided on merit by appointing an Advocate as amicus curiae.
22. It is informed at the bar that in normal course the appellant would have superannuated from service on 31st July, 2012. In thatt view of tthe matter, now there is no question of reinstatement of the appellant though he may be entitled for consequential benefits including arrears of pay. Having regard to the facts and finding given above, we have no other option but to set aside the order of compulsory ompulsory retirement of the appellant dated 15th October, 2007 passed by the respondents; the order dated 22nd December, 2008 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. 2784/2008 and the impugned order dated 20th ApriApril, 2010 passed by the High Court of Delhi in W.P (C)C) No.2622/2010 and the case is remitted to the respondents with a direction to treat the appellant continued in the service till the date of his superannuation. The appellant shall be paid full salary minus the subsistence allowance already received for the period from the date of initiation of departmental proceeding on the ground that he was suffering from mental illness till the date of compulsory retirement. The appellant shall also be provided with full salary from the date of compulsory retirement till the date of superannuation in view of the first and second proviso to Section 47 of the Act, 1995. If the appellant has already been superannuated, he will also be entitled to ffull retiral benefit counting the total period in service. The benefits shall be paid to the appellant within three months, else the respondents will be liable to pay interest at the rate of 6% per annum from the date the amount was due, till the actual paypayment.
SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 25 :: O.A.No.82/2023
23.. The appeal is allowed with the aforesaid observations and directions but there shall be no order as to costs."
6. Heard learned counsel for both the parties and perused the material available on record as well as provisions of Rule - 55 (A) (1) (i) of BSNL CDA Rules, 2006 and the Rights of Persons with Disabilities Act, 2016.
7. It is a fact that the applicant joined the Department of Telecommunication (DoT) as Technician on 05.04.1985 and he was promoted to the cadre of JTO in the yea year 1999-2000.
2000.
Further, he came to BSNL on deemed deputation basis and got absorbed with BSNL.
7.1 It is also evident from document that the applicant was pre-maturely maturely retired w.e.f. 17.03.2019 A/N vide order dated 10.12.2018 as per Rule - 55 (A)(1)(i) of BSNL CDA Rules 2006 and vide order dated 16.03.2019 he was relieved and struck off from the service w.e.f. 17.03.2019 A/N on compul compulsory sory retirement from service (Annexure A/2 colly ). 7.2 It is a fact that the applicant has earlier approached this Tribunal by way of filing O.A. No. 48/2021 against said orders and this Tribunal vide order dated 23.08.2022 directed the respondents to consider the representation of the applicant dated 22.01.2019 in light of the provision contained in Section 47 of the PwD (Equal Opportunity, Protection of Righ Rights ts and Full Participation) Act, 1995.
7.3 Thereafter, the respondents in compliance of the direction issued by this Tribunal in the said OA decided the representation of the applicant and passed impugned speaking order dated 20.12.2022 whereby the request of the applicant licant to revoke his compulsory retirement order in terms of his disability/mental illness was rejected. Further, in the said order disability/mental it was stated that the order of compulsory retirement was issued under provisions of Rule 55 (A)(1)(i) of BSNL CD CDA A Rules 2006 on the basis of his service records, ACRs, Review Rules, SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 26 :: O.A.No.82/2023 Committee Reports and not on ground of his mental health illness or schizophrenia and therefore, provisions of Section 47 of PwD Act, 1995 is not applicable in the case of the applicant.
However, in our considered view, the respondents failed to consider the provisions of disability act in its true spirit.
8. It is evident from various material on record that the mental illness/disability of the applicant was within the knowledge of the respondents respondents as evident from communication vide dated 12.02.2007 (Annexure A/3) the office of the S.D.E. Duct Maintenance, Maintenance, Ahmedabad Telecom District whereby he requested the Civil Surgeon, Mental Hospital, Asarwa, Ahmedabad to conduct "Mental Check Up" of tthe he applicant as he was not able to perform duties because of his mental disturbance.
8.1 It can also be seen from the minutes of the Review Meeting held on 03.11.2018 (Annexure A/19) that in the APAR for the period from 01.04.2008 to 15.12.2008 there is a remark that the applicant was was "Mentally Unfit" which is not disputed by respondents respondents.
8.2 It is evident from the communication dated 28.08.2015 (Annexure A/20) that while granting first up up-gradation gradation of IDA Pay Scale, the DPC found the applicant unfit and recommended him for examination by Medical Board. 8.3 Even as per complaint dated 10.07.2009 (Annexure R/3), registered by the Mandal Gram Panchayat, Taluka, Mandal informed the Principle General Manager, BSNL, Department of Telecom, Ahmedabad, Gujarat State that the mental condition of JTO (i.e. applicant) is very fragile. 8.4 Thus, in view of the above, documentary evidences, undisputedly, the respondents were well aware of the mental illness/disability of the applicant acquired during during/while in service period. Therefore, the action of the respondents to prematurely period.
SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 27 :: O.A.No.82/2023 retire the applicant on the basis of performance report by ignoring and violating the provisions of Section 20 (4) of Rights of Persons Persons with Disabilities Act, 2016 was contrary to the protection of disabled person under ibid Disability Act, 2016.
9. It is also a fact that the applicant was issued a "Certificate for Mental Illness for Government Benefit" qua OPD Case No. 429/07 dated 14.11.2008 which was valid for three years and as per said certificate; it was declared that the applicant was suffering from moderate Mental Illness having 40 40-70 70 per cent of disability. The applicant was again issued a mental illness certificate no. 111/2014 dated 09.09.2014 from the Hospital of Mental Health, Health, Ahmedabad and validity period of the said certificate was of five years and as such it was valid up to 08.09.
08.09.2019 in the said certificate it was stated that the condition of the applicant was was likely to improve and the reassessment of disability is recommended after five years. Subsequently, after five years the applicant got himself again reassessed, and again the applicant was issued a new Disability Certificate No. GJ0750819640037515 dated 16.09.2019 by the appropriate authority which was valid upto 16.09.2022 16.09.2022. Subsequently,, again, the applicant was issued a new Disability Certificate No. GJ0790819640244609 dated 11.11.2022 from the Medical Authority, Ahmedabad Gujarat under the Department of Empowerment of Person with Disabilities, Ministry of Social Justice and Empowerment wherein it was clear clearly stated that the applicant has 60 per cent permanent disability in relation to his Brain.
10. As far as submission of the respondents that before ffiling iling of this OA the applicant had never submitted any application for consideration of his case on the basis of mental illness is concerned, the same is not tenable in the eye of law for the reason that the respondents were very well aware of the mental illness/disability llness/disability of the applicant as respondent on many SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 28 :: O.A.No.82/2023 occasion requested CMO, Mental Hospital, Ahmedabad to get the applicant medically checked.
checked
11. The submission of learned counsel for the respondents that before the applicant acquired mental illness/disability his performance was not good as it is evident from the APAR of the applicant for the period from 3.4.2000 to 31.3.2002, i.e. of Valsad is graded as 'Average'. In this regard, it is apt to mention that the Review Committee Meeting held on 03.11.2018 took decision on the basis of Special Reports, Vigilance Status, Last five Years of APAR Grading etc., therefore, the contention of the applicant that even before the applicant acquired mental illness his performance was not good is not sustainable and as it is very well established in the preceding paragraphs that the period which was assessed by the Review Committee which lead to issuance of impugned o order rder dated 10.12.2018, the applicant was mentally ill/disabled.
12. At this stage, for clarity and brevity, between Rule 55 (A)(I) (i) of BSNL and the Section 20 of "The Rights of Persons with Disabilities Act, 2016", 2016" the later is reproduced herein below:
below:-
"20. Non-discrimination discrimination in employment.
employment.-
(1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:
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, exempt any establishment from the provisions of this section.
(2) Every Government establishment shall provide reasonable accommodation and approp appropriate barrier free and conducive environment to employees with disability.
(3) No promotion shall be denied to a person merely on the ground of disability.
SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 29 :: O.A.No.82/2023 (4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability sability 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 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.
(5) The appropriate Government may frame policies for posting and transfer of employees with disabilities."
13. After perusal of the above provisions, it is fact that there is a provision for alternate employment of a person who has acquired disability during the service period. In the present case, it is a fact that the respondents have not denied that the applicant has acquired the mental illness/disability during th the e service period and as established in preceding paragraph no. 8 that the applicant's mental illness/disability was well within the knowledge of the respondents. Therefore, the action of the respondents to prematurely retire retired the applicant by ignoring Section ion 20 of "The Rights of Persons with Disabilities Act, 2016" is not tenable and sustainable in the scrutiny of law law..
Although, it is a fact that the respondent authority has sovereign power to consider the case of premature retirement of any employee under Rule 55 (A)(1)(i) of BSNL CDA Rules, 2006 and we refrain ourselves to interfere with the sovereign power vested in BSNL under aforementioned Rule Rule. However, it is a fact that in the event of conflict between the rules and statutory Act, the provisions contained contained in Statutory Act will prevail. Therefore, in our considered view, the provisions contained in sub section 4 of Section 20 of "The Rights of Persons with Disabilities Act, 2016" shall prevail.
SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 30 :: O.A.No.82/2023
14. The facts and circumstances of the judgment relied upon by the learned counsel for the respondents in case of Central Industrial Security Force Vs. HC (GD) OM Prakash (supra) is different from the case on hand as in the said judgment the respondent was neither mentally ill/disabled nor he was protected tected under und the RPWD D Act 2016.
15. On the other hand, the dictum and direction relied upon by the applicant specifically in the case of Anil Mahajain vs Union of India in Civil Appeal No.4944/2013 order reported in (2013) SCC 243 specially paras from 17 to 23 and Kutarbhai Keshlabhai Rathva vs Assistant Geologist & Ors. in Civil Appeal No.10355/2012 decided on 04.09.2013, the ratio was laid down therein that when an employee acquires disability during and while in service, the employer cannot dispense with, or reduce in rank of such employee. In such cases the right and interest of such employee who acquires disabilities during and while in service shall be protected as per laid down protection under Section 20 of the R Rights of Persons with Disabilities Act, 2016, 2016, wherein it is stipulated that if such employee is 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 is not possible to adjust any post, the employer ought to have ve kept the employee as a supernumery post until a suitable post is available or until the employee attains the age of superannuation whichever is earlier.
15. Thus, in view of the discussions made herein above, we find merit in the claim of the applicant;
applicant; the OA is partly allowed with the following directions:-
(i
(i) The Impugned Orders dated 20.12.2022 (Annexure A/1), 10.12.2018 & 16.03.2019 (Annexure A/2 colly) are quashed and set aside.
SEEMA 2026.03.30 SANTHOSH 11:31:08+05'30' :: 31 :: O.A.No.82/2023 (ii The Respondents are directed to notionally
(ii) treat the applicant in service on supernumerary post from the date of his compulsory retirement to the date of actual superannuation as per the provisions laid down in sub section 4 of Section 20 of the "The Rights of Persons with Disabilities Act, 2016". He would be entitled to receive all the benefits which he would have been entitled for, if, he was in service until the age he reached the age of superannuation. (iii The respondents are directed to treat the
(iii) applicant retired from service on the date of his superannuation and all the consequential benefits be paid to him to which he would have been entitled if he would have been in service service.
We made it clear that if the applicant is already paid benefits under DCRG, then the balance salary benefit and balance nce benefits, if any, may be paid to him as per rules.
(iv The aforesaid exercise shall be comp
(iv) completed within 90 days from the date of receipt of the certified copy of this Order.
rder.
The OA is partly allowed with the aforesaid directions. Pending MA, if any also stands disposed of. No costs.
(Dr. Hukum Singh Meena) (Jayesh V Bhairavia)
Member (A) Member (J)
/pv/SKV
SEEMA 2026.03.30
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