The central legal point established is the entitlement of employees under Section 47 of the Persons With Disabilities Act, 1995, which prohibits reducing an employee's rank due to acquired disability and mandates shifting to a post with the same pay scale and service benefits if the employee is not suitable for the current post.

JUDGMENT :

Prakash Padia, J.

1. Heard Shri Ashok Kumar Nigam, the learned counsel for the petitioner and learned Standing Counsel for respondents.

2. The petitioner has preferred the present writ petition, challenging the order dated 31.5.1999 passed by the third respondent, namely Officer Incharge, Collectorate, Rampur, (Annexure-3 to the writ petition), to the extent of reducing pay-scale of the petitioner from Driver to Class-IV employee. A further prayer was made to issue a mandamus commanding the respondents to provide the arrear of salary to the petitioner for the period from 31.5.1999 till date.

3. Few facts need to be mentioned for disposal of this writ petition are that the petitioner was initially appointed on the post of Peon, vide order dated 3.9.1984. Subsequently, on the recommendation of the Departmental Selection Committee, he was appointed as Jeep Driver on 21.12.1988. The aforesaid order of the petitioner is a fresh appointment and not a promotion from the post of Peon. After one year, the service of the petitioner was regularized. While discharging his duties as Driver, the petitioner met with an accident. The aforesaid accident of the petitioner was taken place during the course of his employment. The petitioner suffered serious fetal injuries. Due to the aforesaid, the petitioner was not able to join his duty for more than 1 year and 3 months and for the aforesaid period, he was remained on medical leave. Ultimately, after the petitioner recovered from the injury, he got himself medically examined by the doctor and submitted his joining report along with fitness certificate before the District Magistrate. Subsequently, the petitioner was also examined by the Medical Board for the purpose of ascertain as to whether he could drive the vehicle or not. The Medical Board has submitted his recommendation/report on 18.5.1999 recommending that the petitioner was not capable of discharging the duties of driver, however, normal official works could be taken from him. On the basis of that report, the petitioner was reverted from the post of Driver to Class IV employee and also reduction in the pay scale as was being paid to the petitioner as Driver. From the date of his joining, i.e., May 1999, the petitioner was discharging his duties regularly.

4. It is submitted by the counsel for the petitioner that from 26.12.1988 to 28.12.1998, almost 10 years the petitioner worked as Driver and he was paid his salary in the scale of Driver, but wholly illegally, at the time of re-joining, the salary of the petitioner was reduced from the salary of Driver, which is a Class-III post, to the Class IV post. In this background of the matter, the petitioner submitted representations to the authorities and since no action was taken, the petitioner has preferred the present writ petition.

5. It is contended by the counsel for the petitioner that the petitioner is entitled for the benefits provided in the Act, namely, The Persons With Disabilities (Equal Opportunities, Protect of Right and Full Participation) Act, 1995 (hereinafter referred as 'the act'). It is contended by the counsel for the petitioner that at the time of his re-joining, the petitioner has absolutely no information regarding the provisions of the Act of 1995. He came to know regarding the aforesaid provision for the first time on 30.10.2010 and immediately thereafter he approached this Court and filed the present writ petition.

6. Learned counsel for the petitioner placed reliance upon section 47 of the Act of 1995. Section 47 reads as follows:

“47. Non-discrimination in Government employments.—

(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