Employer must ensure that an employee with a disability is treated fairly, including salary payment for an absence due to illness, under the Rights of Persons with Disabilities Act, 2016.

ORDER :

Namavarapu Rajeshwar Rao, J.

This writ petition is filed seeking the following relief:

“…..to issue a Writ, Order or direction particularly one in the nature of WRIT OF MANDAMUS by declaring the action of Respondent Nos.2 and 3 in not treating the period from 22/12/2016 to 11/09/2018 as on duty and not paying salary for the said period in accordance with the orders of the Court of Chief Commissioner for Persons with Disabilities Act Divyangan 2016 and further the action of the Respondents in seeking to recover Rs 1 78 647/ from the Petitioner and the action of Respondents in not paying arrears of MACP and Revision of Pay and the increments due to the Petitioner as illegal arbitrary and violative of Articles 14 16 and 21 of the Constitution of India and contrary to the Rights of Persons with Disabilities Act 2016 more especially Sec 20 4 and further direct the Respondents to treat the entire period from 22/12/2016 to 11/09/2018 as on duty and pay salary accordingly and also release arrears under MACP by setting aside the orders of recovery dated 14/12/2020 with interest alias 12 percent ….”.

2. The brief facts of the case are as follows :-

(i) The petitioner was initially appointed as a Clinical Assistant in the 3^rd respondent Centre in the year 1991 and subsequently promoted to various posts. The petitioner while working as a Reader in 3^rd respondent Institution suffered from brain stroke. After undergoing two brain surgeries at Yashoda Hospital, Secunderabad and after recovery, the petitioner submitted a joining report on 21.12.2016 along with the Medical Fitness Certificate issued by the competent authority. However, without allowing the petitioner to join duty, the respondents directed the petitioner to obtain a second opinion and accordingly, even after submission of the second opinion also, the petitioner was not allowed to join duty and was referred to the Medical Board of Osmania Government Hospital for its opinion, which has issued a Medical Certificate on 15.09.2017 stating that “the candidate is suffering from right Hemiplegia with Aphasia, hence he is unfit for his duties”.

(ii) Based on the said report, the respondents have declared that the petitioner is unfit for joining duty and, accordingly, he was asked to seek Invalidation Pension in terms of Rule 38(2) of CCS (Pension) Rules, 1972.

(iii) Challenging the said action of the respondent authorities, earlier the petitioner filed W.P.No.18510 of 2017 seeking reinstatement into service and subsequently, the petitioner withdrawn the said writ petition on 21.09.2017 and approached the Court of Chief Commissioner, New Delhi, which after hearing both sides, passed the Order vide Case No.8545/1023/2017, dated 20.07.2018, observing as follows :-

“After hearing both the Complainant and the Respondent, the Court felt that it was not at all necessary for the Respondent No.1 to set up a Committee to examine the case of the Complainant for taking action on the recommendation of the said Committee. The Court also felt that there was also no need for the Respondent No.2 to refer the case of the Complainant for clarification regarding creation of a supernumerary post, to the Ministry of Finance, Dept. of Expenditure as it is clearly mentioned under Section 20 (4) of the Rights of Persons with Disabilities Act, 2016 that no Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service; Provi