IMPORTANT POINT
The statutory obligation to protect employees acquiring disability during service and the discriminatory nature of extending age benefits only to specific disability categories.

JUDGMENT :

Tarlok Singh Chauhan, J.

The petitioner, despite being disabled has not been allowed to continue to work till the age of 60/62 years only on the ground that at the time of his induction into service, he was not disabled, whereas his counterparts have been extended said benefit. Aggrieved by action of the respondents, the petitioner has filed the instant petition for grant of following substantive reliefs:-

“i) That the impugned office order dated 31-12- 2018, notifications dated 30.8.2018 and office order dated 11.9.2018 may kindly be quashed and set aside and the applicant may be allowed to work till the age of 60/62 years and the respondents may be directed to rectify the notification (Annexure A-) and to extent the benefit of the notification to all persons belonging to physically handicapped category as defined under the Act/State of Himachal Pradesh.

ii) That in case the applicant is retired without giving the benefit of enhancement of age, and in case this Hon'ble Tribunal allow the original application the applicant may be held entitled to all consequential benefits.”

2. The petitioner joined the respondent-Department on 18.1.1985. It was during the course of the duties that the petitioner sustained injuries and was rendered physically handicapped to the extent of 42%. On 11.9.2018, the respondent-Department issued a notice to the petitioner indicating the retirement of the petitioner on 31.12.2018. The petitioner immediately represented to the competent authority to extend him benefit of enhancement of the age, which was being provided to the blind persons who also fall within category of physically handicapped persons as defined by the State Government and otherwise provided for under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, “the Act of 1995”).

3. Since the representation was not being decided, the petitioner approached the Tribunal and vide order dated 21.11.2018, the competent authority was directed to decide the representation of the petitioner within two months.

4. The long and the short of the matter is that thereafter the respondents considered the claim of the petitioner and vide order dated 31.12.2018 rejected the claim by according following reasons:-

“And whereas vide notification dated 29.03.2013, which was challenged by the respective applicant in OA No. 1004/2015 the State Government has infact enhanced the retirement age of the blind Government Servants from 58 years to 60 years keeping in view the various factors including the hardships of the blind persons as being faced by them, without mentioning or giving any further participation to any other category of disabled or physically handicapped persons. Hence, the above notification did not in any way and manner create any legally enforceable right in favour of the present applicant to claim for enhancement in his retirement age from 58 to 60 years on the basis of his having been suffered with the physical disability that too at the very fag end of his retirement on attaining the age of his superannuation of 58 years which was scheduled on 31-12-2018, is not legally sustainable.

And whereas, since the present applicant had also not initially been appointed against the post reserved for the Physically Handicapped Category, nor he was suffering with any kind of physical disability at the time of his initial appointment in the Department and as such, the facts of his case are otherwise altogether different from the facts of the case of Shri Krishan Chand, respondent in CWP No 1577/2018 (applicant in OA No 1004/2015), and are thus, not at all comparable.

And whereas in view of the above detailed factual position and record, the undersigned does not find it administratively possible and convenient to accede to the request of the applicant to allow for enhancement of the age of his retirement from 58 to 60 years. The request of the applicant cannot be acceded to and as such the same is