Back
2020 Supreme(P&H) 1188
IN THE HIGH COURT OF PUNJAB AND HARYANA
Ritu Bahri, J.
Gopi Ram - Appellant
Versus
State Of Haryana And Others - Respondent
CWP No. 10158 of 2017 (O&M)
Decided On : 14-01-2020
Mr. Suresh Ahlawat, Advocate, for the Appellant Mr. Harish Nain, AAG, Haryana.
The central legal point established is the obligation of the employer to protect the rights of the disabled employee and provide suitable posts as per Section 47 of The Persons with Disabilities Act, 1995.
Headnote:
Disability Rights - Employment - The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Section 47
Fact of the Case:
The petitioner, a Science Master in the Education Department, Haryana, was retired on medical grounds due to permanent incapacitation. The petitioner sought benefits under Section 47 of The Persons with Disabilities Act, 1995.
Finding of the Court:
The court found that the petitioner was entitled to the benefits under Section 47 of the Act, which prohibits the dispensing with or reduction in rank of an employee who acquires a disability during service. The court emphasized the obligation of the employer to protect the rights of the disabled employee and ensure their adjustment in suitable posts.
Issues: The issues revolved around the petitioner's entitlement to benefits under Section 47 of the Act, the interpretation of the medical reports, and the delay in filing the writ petition.
Ratio Decidendi: The court relied on various judgments to establish the obligation of the employer to protect the rights of the disabled employee and provide suitable posts as per Section 47 of the Act. The court also emphasized the duty of the superior officers to explain the legal rights to the disabled employee.
Final Decision: The writ petition was allowed, and the respondents were directed to consider the petitioner's claim in accordance with Section 47 of the Act. The court ordered the payment of salary as if the petitioner was in service against a supernumerary post, along with arrears, interest, and pension calculations.
JUDGMENT
Ritu Bahri, J. - The petitioner has filed the present petition through his wife Meena Devi for issuance of writ in the nature of certiorari for quashing the impugned order dated 14.6.2004 (Annexure P-3) passed by Sub Divisional Educational Officer (Elementary), Julana, Jind-respondent no.4 vide which the petitioner who was working as Science Master in the Education Department, Haryana has been relieved /retired w.e.f 9.6.2004 from Government Service on the basis of medical report dated 9.6.2004 submitted by the Special Medical Board of PGIMS, Rohtak (Annexure P-2). On 16.12.1988, petitioner was appointed as Science Master on ad hoc basis in the Department of Education Haryana and joined in Government High School Buwana Block, Julana Distt. Jind. His services were regularized on 1.1.1991. On 17.10.2002, when he was returning home after attending his duties in the school, unfortunately, he met with a fatal road accident and due to head injury, he remained in COMA for many months and remained under treatment. The petitioner according to Medical Report dated 9.6.2004 (Annexure P-2) submitted by the Special Medical Board of PGMIS Rohtak was found to be permanently incapacitated for further service in the department as Science Master on account of Dementia. On 9.6.2004, the petitioner was subsequently retired from service vide order dated 14.6.2004 (Annexure P-3) on medical ground mentioning that the petitioner was declared incapacitated for further service with the department as per the medical certificate issued by the Special Medical Board, PGIMS, Rohtak. After relieving the petitioner w.e.f 9.6.2004, the service benefits i.e gratuity/DCRG of the petitioner amounting to Rs.94,202/- has been calculated for total service of 15 years 5 months 21 days i.e 16.12.1988 to 8.6.2004 vide certificate and report dated 11.8.2005 (Annexure P-4) issued by the Accountant General Haryana. Petitioner, thereafter, was granted invalid pension under Rule 5.11 of Punjab Civil Services Rules Volume-II w.e.f 9.6.2004.
2. By way of the present writ petition, the petitioner has prayed that he should have been extended the benefits flowing from the provision of Section 47 of The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Act') and treated in service by creating supernumerary post and petitioner should have been paid regularly the salary which would have otherwise been paid had he continued in service in normal course. Section 47 of the Act is hereby reproduced as under:
Section 47 in The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 47. Non-discrimination in Government employment. (!) 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. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
3. Counsel for the petitioner while referring to the report of the Medical Board contends that even though the petitioner was found to be unfit for the service as Science Master but the certificates does not declare that he is completely unfit for any kind of service. Reference was made to a judgment in the case of Satbir Singh vs. Uttari Haryana Bijli Vitr
