JUDGMENT :

S.N. Prasad, J.

This writ petition is under Article 226 and 227 of the Constitution of India for quashing the order dated 10.01.2002 passed by the Commandant, CISF Unit, Nalco, Angul, whereby and where under the petitioner has been medically boarded out due to suffering from Amputation from right Upper Arm.

2. Case of the petitioner in brief is that he while working as Constable in CISF under CISF Unit, Angul, he met with an accident on 11.09.2001 while travelling to his village and while trying to be boarded in the Train fell down, as a result, the Train ran over on his right hand above elbow which was completely detached from the body. The petitioner was shifted to S.C.B. Medical College and Hospital, Cuttack and discharged on 8.10.2001. The petitioner thereafter has permanently declared incapacitated for further service as Constable in C.I.S.F., in terms of the procedure laid down in C.C.S. (Medical Examination) Rules, 1957 incorporated in Appendix-9 to C.C.S. (Pension) Rules, 1972 and Rule 38 of C.C.S. (Pension) Rules, 1972.

Case of the petitioner as has been pleaded in the affidavits is that while passing the order dated 10.01.2002, the provision of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short Act, 1995) has not been taken into consideration, as such the order dated 10.01.2002 is directly in the teeth of the statutory provision as stipulated under Section 47 of the said Act.

3. Learned counsel for the petitioner submits that CISF has been taken out from the purview of Section 47 by issuing the Notification under proviso to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the said Notification has been issued on 10.09.2002, the occurrence took place on 11.09.2001 and the petitioner has been declared to be medically boarded out on 01.01.2002, as such he is entitled to get the benefit of Section 47 and in view thereof, he cannot be discriminated from medically boarded out service.

4. Mr. A.K. Bose, learned Asst. Solicitor General of India has vehemently opposed the submission and prayer of the petitioner by submitting that the petitioner has been medically boarded out in the light of the provision laid down in C.C.S. (Medical Examination) Rules, 1957 incorporated in Appendix-9 to C.C.S. (Pension) Rules, 1972 and Rule 38 of C.C.S. (Pension) Rules, 1972, as such there is no implication of the provision of Section 47 of the Act, 1995.

He further submits that even accepting the argument of the petitioner that he is entitled to get the benefit of Section 47 but the establishment has been taken out from the purview of Section 47 vide Notification issued by the Ministry of Social Justice and Empowerment dated 10.09.2002, in view thereof he is not entitled to get the benefit. He further submits that the point related to Section 47 has not been pleaded in the writ petition, as such no advantage can be given to the petitioner.

5. In response, learned counsel for the petitioner submits that the Notification has been issued by the Ministry of Social Justice and Empowerment on 10.09.2002 while the petitioner has been declared to be medically unfit vide report dated 1.1.2002, as such on the date when the petitioner has declared medically unfit to retain in Government service is prior to issuance of Notification dated 10.09.2002, hence Section 47 is well be applicable to the case of the petitioner, as such he is entitled to be protected under the said statutory provision.

He submits that although there is no pleading in the writ petition but it has been pleaded in the rejoinder filed by the petitioner, wherein specific plea has been taken regarding implication of Section 47 of the Act, 1995, copy of the said rejoinder has duly been served upon the counsel appearing for the opposite parties way back on 2.4.2010 but no response has been filed to that effect, hence it is incorrect