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Showing contexts for: acquire disability in Makhan Singh, Ex. Driver, Punjab ... vs State Of Punjab And Ors. on 3 May, 2006Matching Fragments
9. Mr. R.S. Sharma, learned Counsel for the petitioner has argued that apart from availability of posts, the respondents cannot resort to the premature retirement Rules of 1975 for retiring the petitioner. Learned Counsel has placed reliance on Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for brevity, 'the Act'), which prohibits dispensing with or reduction in rank of an employee who acquires disability during service. According to the learned Counsel such an employee after acquiring disability, if not found suitable for the post he was holding then he could be shifted to some other post with the same pay scale and all the service benefits. Learned Counsel has maintained that even if there is no possibility of adjustment of an employee against any post, such an employee has to be kept on supernumerary post until a suitable post is available or till the date of his superannuation, whichever is earlier and that even promotion cannot be denied to such an employee. For the aforementioned submission, the learned Counsel has placed reliance on a judgment of the Hon'ble Supreme Court in the case of Kunal Singh v. Union of India and Anr. , judgment of Hon'ble Andhra Pradesh High Court, reported as N. Siva Kumar v. A.P.S.R.T.C. 2001(3) S.C.T. 578 (A.P.) and that of Hon'ble Delhi High Court, reported as Baljeet Singh v. Delhi Transport Corporation 2000(2) S.C.T. 318 (Delhi). Referring to various paras of the judgment rendered in the case of Kunal Singh (supra), learned Counsel has argued that the services of Kunal Singh were terminated on account of disability suffered during service, the Hon'ble Supreme Court had quashed that order directing the respondents therein to grant him all the benefits flowing from Section 47 of the Act.
(Emphasis added).
47. Non-discrimination in Government employment.- (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.
It must be remembered that person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected Under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation; whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from Sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.
12. Merely because Under Rule 38 of C.C.S. Pension Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant Under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits : if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.