JUDGMENT :

R.M. Chhaya, J.

1. Heard Ms. Dhwani Tripathi, learned Assistant Government Pleader for the State.

2. The facts of this case, without entering into the merits of the application, the delay is condoned and the Letters Patent Appeal is taken up for final disposal for hearing.

ORDER ON LETTERS PATENT APPEAL

3. The following facts emerge from the record of the Appeal:

1.1 The respondent - Ms. Satyawai Swami Hemamalin is working as a Superintendent-cum-Civil Surgeon at Civil Hospital, Bharuch, which is run by the appellants-State Government. As the record indicates that the respondent was selected as Class II Medical Officer on 09.02.1980 after passing the Gujarat Public Service Commission exams and by the time the petition was preferred, the respondent original petitioner had served the State in Health Department for 21 years and 8 months. As the record unfolds, the respondent was promoted as Class I officer w.e.f. 12.10.2000 and since the year 2002, the respondent is working as Superintendent Civil Surgeon-cum-Chief Medical Officer at Bharuch. The record further indicates that on 27.12.2002 while respondent - original petitioner was on duty and actually traveling in an ambulance to attend a meeting, met with an accident and suffered serious injuries and after initial treatment at Bharuch Civil Hospital the respondent was required to be shifted to S.G. Hospital, Vadodara for further treatment. As per the say of the respondent both her legs were crushed in the accident and was required to be hospitalized for several months and had undergone several operations at Government as well as private hospitals.

4. As the record shows, which is not disputed by the appellants that the respondent has acquired 50% permanent disability of the body as a whole and has become physically handicapped. As the respondent had to remain only because of multiple health issues. The respondent applied for leave under the Gujarat Civil Services (Leave Rules), 2002, which inter-alia provides under Rules 72 & 73 that an employee can get leave of 224 days maximum period of leave, as the same was not considered even though it was pointed out on record that the respondent was suffering from Cervical Tuberculosis. The record indicates that only on the pretext that the respondent-original petitioner was required to be examined by the medical board. The benefit of leave was partly denied and instead of 334 days leave, leave of only 221 days leave came to be sanctioned vide its order dated 02.06.2004 challenging the same, the present writ petition was filed inter-alia praying as under:

a) be pleased to allow this Special Civil Application;

b) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, by quashing and setting aside the action/order dated 02.06.2004 to the extent it sanction leave of 334 days as leave without pay and/or further be pleased to direct the respondents herein to sanction the leave of 334 days as earned leave by paying leave salary and/or further be pleased to direct the respondents herein to sanction the leave from 14.01.2004 upto 24.05.2004 as special leave as tuberculosis patient by paying the salary of the said period as per rules and/or further be pleased to direct the respondents herein to consider the case of the petitioner as per Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and/or further be pleased to direct the respondents to complete the procedure for sanctioning the special leave of the petitioner as a patient of tuberculosis by getting her examined by the Medical Board forthwith;

(c) Pending admission, hearing and final disposal of this Special Civil Application, be pleased to stay further execution, operation, implementation and enforcement of order/action dated 02.06.2004 to the extent it sanction the leave of 334 days as leave without pay and/or further be pleased to direct the respondents herein to sanction the leave of 334