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2014 Supreme(All) 55
ALLAHABAD HIGH COURT
BEFORE : ARUN TANDON AND SURYA PRAKASH KESARWANI, JJ.
DILEEP KUMAR SINGH ....Petitioner
Versus
UNION OF INDIA AND OTHERS .....Respondents
(Civil Misc. Writ Petition Nos. 42101 of 2011 and 30278 of 2004, decided on 8th January, 2014)
Counsel :
Bhoopendra Nath Singh and Devendra Pratap Singh for the Petitioner; A.S.G.I., Ajay Singh, S.S.C., K.C. Sinha and Rakesh Sinha for the Respondents.
Headnote:Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995—Sections 33, 47 and 73—Board out employee—Disability pension—Superumerary post—On invalidation pension—Petitioner a Assistant Commandant of C.R.P.F. sustained injuries in his spinal cord and major fracture in both foot due to fall from roof top of Quarter Guarding during checking night guard—Notification dated 10.9.2002—Section 47 of the Act, provides protection to the employees in Government service who acquires a disability during service—Under Section 47(1) of the Act, even where a disabled employee could not be adjusted against any post in the establishment because of disability, a supernumerary post required to be created for the period till he could be adjusted or he attains the age of superannuation—The Notification dated 10.9.2002 issued under Section 73(2) by the Central Government necessarily be read with reference to the field occupied by sub-section (2) of Section 47 only—Therefore Notification dated 10.9.2002, as exempts the CRPF from restriction imposed in the matter of denial of promotion to disabled employees only—In view of such Notification, the respondent establishment could not have boarded out the petitioner with disability pension—Respondent directed to treat the petitioner in the service and to adjust him against any suitable post or against a supernumerary post—Petitioner entitled for full salary and consequential benefit of service. [Paras 18 to 32]
By the Court.—Heard learned counsel for the parties.
2. Petitioner Sri Dilleep Kumar Singh was employed as Assistant Commandant in Central Reserve Police Force. The petitioner sustained injuries in his spinal cord and major fracture in both foot due to fall from roof top of Quarter Guarding during checking night guard.
3. He has been confined to wheelchair for last several years. Under an interim order passed in the connected Writ Petition No. 30278 of 2004 filed against the proposal to board out from service, he was allowed to serve upto 24.5.2011, i.e.when the interim order was vacated permitting the respondent Central Reserve Police Force to take appropriate final decision in the matter. The Deputy Inspector General of Police (Personnel) by an order in the name of President of India has taken a decision qua the petitioner with reference to the Notification dated 10.9.2002 issued under Section 33/47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the ‘Act-1995’) to board out the petitioner on invalidation pension.
4. This order of Deputy Inspector General of Police (Personnel) is under challenged in the connected second writ petition No. 42011 of 2011.
The short controversy involved in the petitions is confined to the interpretation of the Proviso to Section 47 of the Act, 1995 and the scope of Notification dated 10.9.2002.
5. We may record that the injury had been suffered by the petitioner rendering him invalid on 10.10.2001. On the relevant date no Notification under Section 33/47 had been issued qua Central Reserve Police Force. However, the invalidation medical certificate was issued in favour of the petitioner only on 22.3.2004. The petitioner had suffered 100% disability. On the date the invalidation certificate was issued the Notification dated 10.9.2002 under Section 33/47 had seen light of the day.
6. For the controversy involved it would be appropriate to refer to Section 33 as well as Section 47 of the Act, 1995 which read as follows :
“33. Reservation of posts.—Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy,
in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
“47. Non- discrimination in Government employment.—(1) 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 he 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 he specified in such notification, exempt any establishment from the provisions of this section.”
7. The Apex Court in the case of Union of India v. Devendra Kumar Pant and others, AIR 2010 SC 1253 para 14 has explained, that Section 33 of Act 1995 deals with reservation of posts for persons with disability. Sections 32 and 33 of Act, 1995 therefore apply to pre- employment s
