JUDGMENT

Mr. Harsimran Singh Sethi, J. (Oral)

CM No.13896-CWP of 2023

The present application has been filed for fixing some actual date in the present petition.

Notice of the application to the counsel opposite.

Mr. Harish Nain, Assistant Advocate General, Haryana, who is present in the Court accepts notice and raises no objection for the grant of the prayer as made in the present petition.

Keeping in view the above, application is allowed and on the oral request of learned counsel for the parties, the main case is taken up for hearing today.

CWP No.13674 of 2006

By this common order, two writ petitions, the details of which have been given in the heading are being disposed of as both the writ petitions involve the similar issue on similar facts.

2. The facts in CWP No.13674 of 2006 are being mentioned.

3. In the present petition, the challenge is to instructions dated 20.08.1992 (Annexure P-1) by which, the petitioner has been compulsorily retired from service on the ground that keeping in view the accident which the petitioner had met with, he is no longer fit to perform the duties of a Driver on which post he was working.

4. The petitioner was appointed on the post of Driver by the respondent-transport department on 26.04.1989. At the time when the petitioner was offered the appointment, he was medically examined and found fit to perform the duties of the post of the Driver.

5. Unfortunately, while on duty, the petitioner met with an accident on 01.05.2000 and in the said accident, he suffered disability. Keeping in view the said disability, the petitioner was got examined by the Medical Board on 29.10.2003 and the Medical Board declared that the petitioner is unfit to drive the heavy vehicle. On 10.11.2003, the petitioner was issued a show cause notice as to why, he should not be compulsorily retired keeping in view the fact that he is no longer in a position to perform the duties of the post of Driver. By the impugned order dated 27.11.2013, the petitioner was compulsorily retired from service on the ground that the petitioner is not fit to drive the heavy motor vehicle and his case was considered for the alternate job under the Policy but the petitioner has been found as not eligible for the posts which are lying vacant. The challenge is to the said order passed by the respondents.

6. Learned counsel for the petitioner argues that keeping in view the provision of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the 1995 Act'), upon acquiring the disability to perform the duties of a particular post, the employee is liable to be considered for working on the post on which he/she is suitable and in case there is no suitable post available, a supernumerary post is to be created by the department till the said employee attains the age of superannuation. Hence, retiring the petitioner upon acquiring disability merely by stating that for the post of Driver he is unfit to drive and qua the posts which are available, the petitioner is not eligible to perform the duties, which order passed by the respondents is contrary to the provisions of the 1995 Act hence, the impugned order is liable to be set aside and the petitioner should be treated in service for all intents and purposes till he attained the age of superannuation.

7. Learned counsel for the respondents submits that though, it is a conceded fact that the petitioner performed the duties of the post of Driver from the date of his initial appointment and he suffered disability while in service as he h