ORDER :

MUNISHWAR NATH BHANDARI, JJ.

By this writ petition a challenge has been made to the orders dated 29.9.2021 and 30.09.2021 issued by respondents 1 and 2, respectively, with a prayer to direct the respondents to reinstate the petitioner in a suitable post or in a supernumerary post as mandated under Section 20(4) of the Rights of Persons with Disability Act, 2016 and also direct the respondents to declare the probation of the petitioner as completed and remit back the leave debited from the petitioner's leave account from 10.09.2020 to 23.01.2021 and disperse the salary for loss of pay incurred from 24.01.2021 with increment and grant all consequential service and attendant benefits.

2. By the impugned orders, respondent 1 and 2, admitted the petitioner into retirement on invalid pension provided under Rule 38 of the Central Civil Service (Pension) Rules, 1972.

3. The facts of the case show that pursuant to the advertisement issued by the respondents, the petitioner applied for the post of Senior Clerk in Industrial Tribunal-cum-Labour Court and after selection, he was appointed as Senior Clerk, by the order dated 01.09.2016. The appointment of the petitioner was made against the post called for visually disabled category and the petitioner at the time of appointment was 75% visually disabled. After the appointment of the petitioner, he was asked to pass required tests. The petitioner has made a request to exempt him from typewriting test. A copy of the request was sent to the appropriate authority and after consulting the Director of Health and Family Welfare Services, the Medical Board exempted the petitioner from appearing for typewriting examination and sent the exemption approval letter dated 21.04.2021 to the Judicial Department. During September, 2020, the petitioner had health issues due to Shunt Dysfunction and was admitted in the hospital three times and underwent three surgeries for Shunt replacement during the period between 10.9.2020 and 12.12.2020. His visual disability was increased from 75% to 100%. After taking leave for that reason, he applied for extraordinary leave of 180 days based on the Doctor's advice. While the petitioner was under medication and in bed rest, respondents 1 and 2 passed the impugned orders in violation of Section 20 of the Rights of Persons with Disability Act, 2016 (for short, “Act of 2016”). The respondent authorities could not have admitted the petitioner into retirement on invalid pension, rather could have adjusted him on any other post or in the absence of it, they ought to have created a supernumerary post. The impugned orders passed by respondents 1 and 2 are hit by Section 20 of the Act of 2016. Thus, a prayer is made to declare the said orders as invalid and, accordingly, to set aside the same with consequential benefits to the petitioner.

4. The writ petition has been contested by learned Government Pleader (Puducherry), who submitted that the petitioner was appointed only on temporary basis against the post reserved for disabled category. He was suffering from visual disability to the extent of 75%. After the appointment, he prayed for exemption from appearing in the typewriting test and was granted on the advice of the Director of Health and Family Welfare Services. The petitioner, however, remained on leave from time to time and ultimately, it was found that the petitioner has completely lost his vision and, therefore, finding no other post available for a blind person, he was ordered to be admitted into retirement on invalid pension. In passing the order aforesaid, the respondents have not offended Section 20 of the Act of 2016.

5. Learned Government Pleader (Puducherry) further submitted that Section 20(4) of the Act of 2016 applies only to cases where an employee acquires disability during his service and not otherwise. In the instant case, the petitioner was appointed with disability itself and, thus, his case is not covered by Section 20(4) of the Act of 2016 because